Practice Relating to Rule 100. Fair Trial Guarantees
Section F. Trial without undue delay
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “No one may be sentenced without a trial … carried out without undue delay”.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “No one may be sentenced without a trial … carried out without undue delay”.
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 271 of the Constitution provides:
The proceeding for the offences of
[international organized crimes, acts against the public heritage of other States and against human rights]
… will be
[emphasis in original]
In 2004, in the Recao case, the Constitutional Chamber of Venezuela’s Supreme Tribunal of Justice was called upon to decide on an appeal against the judgment of the Court Martial, which dismissed the constitutional complaint of the defendant regarding the failure of the Military Prosecutor to request the termination of the proceedings. The tribunal held:
[T]he Prosecution Office … is autonomous … [and] cannot be obliged … to request the termination of the proceedings …
However, it can be compelled to conclude an investigation within a given period of time but this does not mean that it must conclude the latter through the termination of the proceedings.
Thus, Article 26 of the Constitution of the Bolivarian Republic of Venezuela provides that, within the due process guarantees, every person that approaches the … judicial bodies [has a right to] promptly obtain a decision [on the proceedings]. Similarly, [persons have the right] to obtain, among other aspects, an expeditious justice without undue delays …
However, as a corollary of what is mentioned in Article 26 of the Constitution of the Bolivarian Republic of Venezuela, it is found that Article 313 of the Penal Procedure Code establishes the possibility for the indicted person to access tribunals … to obtain the fixing of a time limit … in order for the Prosecution Office to conclude the investigation … [A]s the case requires, this refers to filing the indictment [or] requesting the termination of the proceedings. …
This thus concerns the obligation of the Prosecution Office to terminate the preparatory phase [of the proceedings] as required by the case in view of the constitutional exigency of an expeditious justice … [However,] this does not mean that through this guarantee one can infringe upon the autonomy of this organ [and oblige it] to conclude an investigation in a given way. The Prosecution Office … will seek to terminate the preparatory phase [of the proceedings] by filing the indictment [or] requesting the termination of proceedings. … It is clear that in “the cases referring to the investigation of … war crimes” a time limit cannot be set for the termination of the preparatory phase [of the proceedings], as provided in Article 313 of the Penal Procedure Code.
Thus, as the Prosecution Office cannot be forced to request the termination of proceedings, the only thing that the lawyers of Isaac Pérez Recao could do was request the diligent termination of the investigation, in accordance with Article 313 of the Penal Procedure Code, as held by the [first instance] tribunal …
However, it is necessary to clarify that the lawyers [that presented the appeal] … argued that they cannot use this provision (Article 313 of the Penal Procedure Code), as the offence of military rebellion is considered to be a crime connected to war crimes.
In the opinion of this Chamber, that assertion is not absolute …
… [O]ne cannot say that a military rebellion is always an offence connected with war crimes. …
According to the assertions of the lawyers [presenting the appeal], Isaac Pérez Recao is only indicted for the offence of military rebellion, and it is thus not possible to conclude that Article 313 of the Penal Procedure Code, relating to the possibility for the indicted person to access the supervisory judge to obtain the fixing of a time limit in order for the Prosecution Office to conclude the investigation, cannot be used in the current case.
Thus, seeing as this possibility … was not exhausted before presenting the current appeal, this Chamber concludes that the appeal is inadmissible, in accordance with Article 6(5) of the Organic Law on the Protection of Constitutional Rights and Guarantees, as was correctly found by the Court Martial.
As a result, this Chamber must dismiss the appeal and confirm the decision of the Court Martial on 21 March 2003, which dismissed the constitutional complaint formulated by the private defendants of Isaac Pérez Recao.
[emphasis in original]