Practice Relating to Rule 160. Statutes of Limitation
Venezuela’s Constitution (2009) states: “Actions to punish … war crimes shall not be subject to statutes of limitation.”
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 upheld the decision of the Court Martial, which held that the object and purpose of Article 313 of the Penal Procedure Code is that “neither the judge nor the Military Prosecution Office are obliged to fix a time limit for the investigation, as the criminal proceedings are not subject to statutes of limitation.”
(emphasis in original)
The tribunal further held:
The Prosecution Office, in accordance with the [evidence] raised in the investigations and according to the legal order, 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 the 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]
In 1968, during a debate in the Third Committee of the UN General Assembly on the question of the punishment of war criminals and of persons who have committed crimes against humanity, Venezuela stated that it “had no difficulty in recognizing the principle of the non-applicability of statutory limitation to war crimes and crimes against humanity”.
In 2011, in its core document forming part of Venezuela’s reports on international human rights instruments, Venezuela stated: “Within the framework of the protection of human rights, the Venezuelan State has an obligation to punish crimes against humanity and war crimes, which are not time-barred and cannot be subject to pardon or amnesty.”
In 2012, in its combined third and fourth periodic reports to the Committee against Torture, Venezuela stated:
With regard to the duty to investigate offences that constitute human rights violations, including torture, this is the responsibility of the justice administration system, particularly the Office of the Attorney General of the Republic, which takes charge of criminal proceedings in accordance with the provisions of article 11 of the Public Prosecution Service Act. In addition, article 29 of the Constitution provides for the imprescriptibility of offences constituting human rights violations and prohibits officials involved in such offences from enjoying procedural privileges: “The State is required legally to investigate and punish human rights offences committed by its authorities. Actions to punish crimes against humanity, serious human rights violations and war crimes are not time-barred. Violations of human rights and crimes against humanity are investigated and tried by the ordinary courts. Such offences are excluded from privileges which may allow them to go unpunished, such as pardons and amnesties.”