Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
Venezuela’s Code of Military Justice (1998), as amended, provides for the punishment of anyone who commits grave attempts against persons who surrender or against women, the elderly or children in the territories occupied by national forces … and other acts of cruelty”.
Venezuela’s Penal Code (2005) states:
Any public official in charge of the custody or transfer of a detained or convicted person who commits arbitrary acts against such person or acts not authorized by the applicable regulations shall be punished with fifteen days’ to twenty months’ imprisonment. The same penalty shall be imposed on a public official who, because of his or her functions, holds a position of authority over such person and commits any of the [aforementioned] … acts. Injuries, offences against human dignity, ill treatment, torture, physical or moral humiliation committed against detainees shall be punished with three to six years’ imprisonment of the guardians or prison guards or of whoever gave the order to commit such acts which are contrary to the individual rights enshrined in Article 46(2) of the Constitution of Venezuela.
Venezuela’s Law on the Protection of Children and Adolescents (2007) states:
Every boy, girl and adolescent has the right to personal integrity. This right includes physical, psychological and moral integrity.
1. Boys, girls and adolescents must not be subjected to torture, cruel, inhuman or degrading punishment or treatment.
2. The State, families and society must protect every boy, girl and adolescent against any form of … torture.
Venezuela’s Constitution (2009) states:
The President of the Republic, at a meeting of the Cabinet of Ministers, shall have the power to decree states of exception. … In such cases, the guarantees contained in this Constitution may be temporarily restricted, with the exception of those relating to the … prohibition of … torture.
The Constitution further states: “A state of internal or external commotion may be declared in the event of an internal or external [armed] conflict seriously endangering the security of the Nation, its citizens or its institutions.”
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … Not to be subjected to torture or other cruel, inhuman or degrading treatment.”
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “The indicted [person] will have the following rights: … Not to be subjected to torture or other cruel, inhuman or degrading treatment.”
In 2001, in the Ballestas case, the Colombian Government requested the preventive detention and extradition of a Colombian citizen belonging to the armed group known as the Ejército de Liberación Nacional (National Liberation Army) for the crimes of rebellion, kidnapping, wrongful death, seizure and diversion of aircraft. The Chamber of Criminal Appeals of Venezuela’s Supreme Tribunal of Justice stated:
In case of national armed conflict, Article 3 [common to the 1949 Geneva Conventions] establishes as a minimum the obligation to treat non-combatants “humanely”, thus prohibiting … in particular … cruel treatment … The standards of Article 3 are considered to be a part of customary law and constitute the minimum – in terms of obligations – that belligerents must always respect.
In 2012, in its fourth periodic report to the Human Rights Committee, Venezuela stated:
55. With regard to the protection of rights enshrined in the Constitution of the Bolivarian Republic of Venezuela in states of emergency, articles 337 to 339 provide that guarantees contained in the Constitution may be temporarily suspended, with the exception of “those relating to the right to life, the prohibition of the holding of persons incommunicado or torture, the right to due process, the right to information and other intangible human rights”.
56. On the question of legislative action to give effect to this constitutional provision, it is important to note that, under the present Government, no state of emergency has been decreed, notwithstanding the fuel shortage during the 2002 oil strike or coup d’état.
57. The Venezuelan State legislated on the matter and in 2001 the States of Emergency Act entered into force, setting out in its article 7 the relevant guiding principles. Under that article, and in accordance with article 339 of the Constitution of the Bolivarian Republic of Venezuela, article 4, paragraph 2, of the International Covenant on Civil and Political Rights and article 27, paragraph 2, of the American Convention on Human Rights, no restrictions can be placed on guarantees relating to inter alia the right to … personal physical, mental and moral integrity …
58. Continuing with the interpretation of constitutional precepts, article 338 covers the three kinds of states of emergency and establishes, in accordance with the principle of gradualism, factual circumstances that may justify them and their limitation in time … [A] state of internal or external disturbance may be declared in the event of internal or external conflict that seriously endangers the security of the nation, its citizens or institutions, for a period of up to 90 days, renewable for the same period of time.
[footnotes in original omitted]