Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
Section D. Political offence exception to extradition
Venezuela’s Penal Code (2005) states: “A foreign national may not be extradited for political crimes or violations connected to such crimes, nor for any act that is not defined as a crime under Venezuelan laws.”
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:
[A]rticle 391 of the Penal Procedure Code provides: “Extradition is governed by the provisions of this Title, by the treaties, conventions and international agreements of which the Republic is a party”.
… [T]he Bolivarian Republic of Venezuela and the Republics of Bolivia, Colombia, Ecuador and Peru signed the Bolivarian Extradition Agreement on 18 July 1911 in Caracas … [which provides in Article 4]:
The extradition of a fugitive will not be granted if the act of which he or she is accused is considered a political crime or related to it in the requiring State, and no person will be handed over by any Contracting State to another, prosecuted or punished for a political crime or offence or any related acts committed prior to extradition. Extradition will also not be granted if the person being requested [in extradition] proves that the [request] has been made with the purpose of prosecuting or punishing him or her for a political crime or an act connected with it.
If a question arises on whether a case falls within this provision, it will be the final decision of the authorities of the State to which the request has been made or that has granted the extradition.
[emphasis in original]
In determining whether the facts of the case could be considered as political offences, which exclude extradition, the tribunal held:
Firstly, it must be noted that with regards to the extradition request based on the offences attributed to … [the accused] it has been reiterated by both his defence and by Venezuelan NGOs that these are political crimes. Thus, he is not extraditable and has the right to asylum.
A political crime is one that has a political motive … [R]ebellion … [is] the offence emblematic of political crimes, and one of which … [the accused] is accused for …
… [In order to determine whether an offence is a political crime] it is necessary to distinguish between two categories of political crimes: pure political crimes and relative political crimes.
Pure political crimes are those that are politically motivated, and only violate the rights of the State.
Relative political crimes are those that are politically motivated and violate the rights of the State, as well as private rights or the rights of individual persons.
This distinction between pure and relative political crimes gives rise to another, more profound, distinction between political crimes and social crimes.
Political crimes are those that affect the organization and interests of a State. Social crimes are those that affect social peace, human coexistence, and basic social institutions. … [F]or this reason, they are contrary to humanity and, therefore, contrary to all States.
These distinctions are exceedingly important when addressing the issue of whether all crimes for which a political motive is alleged, whether genuine or fictitious, shall merit … benefits [such as the impossibility of granting extradition].
Thus: if such an attack against innocent [persons] or private rights is carried out with such a violence and malicious intent that it causes unnecessary suffering, havoc and terror, it would [constitute the offence of] indiscriminate terrorism, namely [those acts] that are not selective when choosing their targets and expressly target the innocent.
Terrorism, and particularly indiscriminate terrorism, ignores the requirements of Humanitarian … law; it endangers innocent human lives and many times destroys them … Terrorism is not one of the political crimes meriting a benefit [such as the impossibility of granting extradition]. Such a benefit would go against [the interests of] justice, criminal law and the moral sense of people …
Terrorism is constituted by a series of conducts of grave inhumanity that are not considered political crimes and that must thus always give rise to extradition: it is inadmissible that a political motive would be sufficient to justify any type of crime. Political ends must not justify certain means of fighting. …
However, in the process of [granting] extradition, the Criminal Chamber clarifies that the offence of rebellion
is per se
[emphasis in original]
In concluding on whether extradition can be granted, the tribunal held:
[T]his Supreme Tribunal of Justice considers it pertinent to grant the extradition of … [the accused], requested by the Government of Colombia … for the offences of extortive kidnapping, seizure and diversion of aircraft, which … are not considered to be political [offences], nor connected with these …
Similarly, Article 271 of the Constitution provides:
Article 271.- In no case can the extradition of foreigners be denied [when they are] responsible for committing the offences of … international organized crimes, acts against the public heritage of other States and against human rights. …
The Chamber, in compliance with the abovementioned constitutional provision, expressly notes the following: the extradition of [the accused]
is not granted for the political offence of rebellion
. The extradition of [the accused]
is granted for the alleged commission of the ordinary offence of extortive kidnapping
, which … also constitutes, in general, [the offence of] international organized crimes, and of terrorism
[emphasis in original]
In 2012, in its combined third and fourth periodic reports to the Committee against Torture, Venezuela stated:
Guiding principles on extradition in Venezuela
95. The main points are:
(c) Principle of non-extradition for political offences. The Criminal Code establishes definitively – and this has been confirmed by the Supreme Court Ballestas case, judgment of 10 December 2001] – that the extradition of a foreigner may not be granted for political offences or infringements connected with such offences.
118. It should be noted that the Venezuelan State has included in all the international extradition treaties signed and ratified by the Republic a clause stating that a person cannot be extradited for political offences.
[footnote in original omitted]