Practice Relating to Rule 100. Fair Trial Guarantees
Venezuela’s Law on the State of Emergency (2001), which includes situations of internal and international armed conflict, states:
Article 7. In accordance with Articles 339 of the Constitution of the Bolivarian Republic of Venezuela, Article 4(2) of the  International Covenant on Civil and Political Rights and Article 27(2) of the  American Convention on Human Rights, the guarantee of the [following] rights must not be restricted:
11. The [right to] due process.
Venezuela’s Law on the Protection of Children and Adolescents (2007) states: “An adolescent who is under investigation or detained must be informed … of the right … to request the immediate presence of his or her parents, representatives or guardians”.
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 … right to due process.
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:
No one may be sentenced without a trial … that is in accordance with the provisions of this Code and safeguards the rights and guarantees of due process enshrined in the Constitution of the Republic, laws, treaties, conventions and international agreements to which the Republic is a party.
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
No one may be sentenced without a trial … that is in accordance with the provisions of this code and safeguards the rights and guarantees of due process enshrined in the Constitution of the Republic, laws, treaties, conventions and international agreements to which the Republic is a party.
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 oral,
[and with guarantees of] … due process.
[emphasis in original]
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 inter alia to … due process …
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]