Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
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
Extradition of a foreign national for ordinary crimes may only be granted by the appropriate authority, in conformity with the procedures and prerequisites established in the international treaties signed by and in force for Venezuela; absent these, those established under Venezuelan law shall apply.
Extradition of a foreign national may not be granted in cases where the crime in question carries the death penalty or life imprisonment under the requesting State’s legislation.
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states:
Article 391. Extradition is governed by the provisions of this Title, by the treaties, conventions and international agreements to which the Republic is a party.
Article 395. If a foreign government requests the extradition of a person that is within the territory of Venezuela, the Executive will send a request to the Supreme Tribunal of Justice with the documentation received [from the country].
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
Article 382. Extradition is governed by the provisions of the Constitution of the Bolivarian Republic of Venezuela, the treaties, conventions and international agreements to which the Republic is a party and the provisions of this Title.
. If a foreign government requests the extradition of a person that is within the territory of the Bolivarian Republic of Venezuela, the Executive will send the request to the Supreme Tribunal of Justice with the documentation received [from the country].
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 to 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]:
Article 5.- Extradition shall not be granted in the following cases:
a) If according to the laws of one of the States, the sentence does not exceed by six months the maximum applicable sentence for the offence of which the person is accused, and for which extradition has been requested.
b) When, according to the laws of the State to which the [extradition] request has been sent, the statute of limitations on the proceedings or the punishment against the person … has run out.
c) If the individual whose extradition is requested has already been judged and set free, or has served his or her sentence, or if the acts for which he or she is accused have been the object of an amnesty or a pardon.
In addition, Article 8 of the mentioned Treaty provides:
Article 8.- The extradition request must be accompanied [with the necessary documentation] …
By virtue of the provisions of the present Treaty, the extradition of fugitives will be in conformity with the extradition laws of the State to which the request has been made.
In no case will the extradition take place if a similar act is not punishable by the law of the Nation [to which the extradition has been] requested.
[emphasis in original]
In determining whether the acts of the case were considered offences in Venezuela thus permitting extradition, the tribunal held:
The Venezuelan Penal Code, meanwhile, criminalizes and punishes the crimes of rebellion, kidnapping, extortion, seizure and diversion of aircraft and wrongful death
in Articles 153, 452, 461, 368 and 411 respectively … [This] fulfills the principle of “dual criminality” (that the offences for which the [extradition] request [was formulated] are also offences in Venezuelan law), as required by Article 6 of the Venezuelan Penal Code in order to grant extradition.
[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, and seizure and diversion of aircraft, which … are punished by the national legislation of both the requested State, the Bolivarian Republic of Venezuela, as well as the requesting [State], the Republic of Colombia; which are classified as offences giving rise [to extradition] … in the Extradition Treaty; which are not time-barred, and would not make the [extradited person] liable to a death or life sentence.
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, … grants the extradition of … [the accused]
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
in particular … It notes, in addition, that the natural judges to determine if Ballestas
is … [criminally responsible] are in Colombia, as it is the place where the offences under investigation were committed. It is there where the evidence of the offences of which Ballestas
is accused can be found. The Chamber notes that the sentence to be applied, if criminal responsibility is declared, must not exceed thirty years as established in Article 44(3) of the Constitution of the Bolivarian Republic of Venezuela. It is so decided.
[emphasis in original]
In 2012, in its combined third and fourth periodic reports to the Committee against Torture, Venezuela stated:
93. Extradition in Venezuela is governed by article 69 of the Constitution, which prohibits the extradition of nationals; the same provision appears in article 6 of the Criminal Code, the Code of Criminal Procedure, specific legislation and extradition treaties signed and ratified by the Republic. Where a Venezuelan national has committed torture in foreign territory, he or she must be tried in Venezuela at the request of the injured party or the Public Prosecution Service.
94. Articles 382 et seq. of the Code of Criminal Procedure govern the extradition procedure, which is jurisdictional rather than administrative. The question of whether or not an extradition request is granted falls to the Supreme Court, and specifically the Criminal Division of Cassation. If it grants a request, that does not imply a judgement of the culpability or not of the person concerned on the basis of an evidentiary procedure of an adversarial nature but is restricted to the consideration of the documents submitted by the requesting State, on the basis that the interests of the State must be served and that the information provided is true and accurate. Subsequently, the details are checked as to both the form and the substance required by treaties and domestic law. The Bustamante Code – the Code of Private International Law annexed to the Convention on Private International Law – and the principles of international law are also applicable.
Guiding principles on extradition in Venezuela
95. The main points are:
(b) Principle of dual criminality. It is absolutely essential that the facts on which a request is based are considered an offence in the legislation of both the requesting and the requested State. By the same token, article 6 of the Criminal Code provides that: “The extradition of a foreigner shall not be granted for any action that is not considered an offence under Venezuelan law.” This ties in with article 49, paragraph 6, of the Constitution, which states: “Due process shall apply in all legal and administrative proceedings and, as a consequence, … 6. No one may be punished for acts or omissions that are not deemed serious offences, ordinary offences or minor offences under existing law.” This principle was the subject of an interpretation by the Attorney General’s Office of the Public Prosecution Service, given in an opinion addressed to the President and other judges of the Criminal Division of Cassation of the Supreme Court, when a request was received for the extradition of a national of the Kingdom of Belgium, JEC, as follows: “With regard to extradition, an essential feature is the requirement of dual criminality, whereby the extradition of the requested person may be granted only where the action of which the person is accused in the requesting country constitutes an offence in the requested country.”
(d) Principle of refusal of extradition in cases carrying the death penalty, life imprisonment or imprisonment for a period exceeding 30 years. In addition to the exceptions relating to the extradition of foreigners, the Venezuelan Criminal Code states that: “The extradition of a foreigner accused of an offence that under the legislation of the requesting country is subject to the death penalty or life imprisonment shall not be granted.” In implementation of this principle, the Supreme Court has granted the extradition of nationals of the United States of America, conditional on a commitment by the requesting Government that, if the person concerned is convicted, he or she will not receive a penalty exceeding 30 years. The Attorney General’s Office of the Public Prosecution Service issued a similar opinion addressed to the President and other judges of the Criminal Division of Cassation of the Supreme Court when a request was made by the Government of the Kingdom of Spain for the extradition of its national MUM, stating that: “In the event that the penalty imposed on the requested person shall exceed 30 years by virtue of the applicability of the rules relating to concurrence of offences, whether a series of offences or a multiple offence, it is required that the Government of the Kingdom of Spain shall provide effective guarantees that the penalty shall not exceed the maximum established under the Venezuelan legal order.”
(e) Principle of the special nature of extradition. According to this principle, the requesting State undertakes to put the requested person on trial only for the act for which his or her extradition has been requested and not for any other offence. It is also inadmissible to replace the offence for which an extradition request has been lodged by another offence, where such conduct is not considered unlawful in the requested State.
(f) Extinction of criminal proceedings or penalty. This constitutes another extremely important element of extradition, since extradition will not be granted where the criminal proceedings or the penalty are extinguished under the domestic law of the requesting or the requested State.
96. It should be noted that, although article 271 of the Constitution provides that under no circumstances may extradition be refused in the case of a foreigner guilty of committing serious crimes, such as money-laundering, impairment of State assets, organized crime, drug trafficking or human rights violations, such a provision does not exempt the requesting State from complying with the requirements established in the treaties that apply in this area; a request may be denied in the absence of such compliance.
100. The Venezuelan State operates with a deep sense of responsibility, accepting extradition as a moral obligation under international law, but it reserves the right to decide whether to grant or refuse it, taking into account the question of whether, in the specific case, it runs counter to the principles of domestic law or does not comply with reason or justice.
101. As stated in the report contained in document CAT/C/33/Add.5, submitted in 2000, the Venezuelan State has clearly established its jurisdiction over the offences covered in article 5 of the Convention in respect of foreign nationals, provided that they are located in the country, that the issue does not relate to political offences or infringements connected with such offences, that the act in question is not deemed an offence under Venezuelan law or that the offence is subject, under the legislation of the requesting country, to the death penalty or life imprisonment. Where a Venezuelan commits the crime of torture in a foreign country, he or she must be tried in Venezuela at the request of the injured party or the Public Prosecution Service.
115. The Venezuelan State recognizes the offence of torture as a crime that gives rise to extradition. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment constitutes part of the legal body of protection for human rights, within the limits established in the Constitution. The treaties entered into by the Republic do not place any restriction on the extradition of nationals who have committed the crime of torture and, even where there is no extradition treaty between States, extradition is possible in accordance with the rules of international law and on the basis of the principles of international solidarity and reciprocity in order to avoid impunity for offences committed abroad.
[footnotes in original omitted]
In 2012, in its fourth periodic report to the Human Rights Committee, Venezuela stated:
114. Extradition in Venezuela is regulated by article 69 of the Constitution of the Bolivarian Republic of Venezuela, which prohibits the extradition of nationals. This is in line with article 6 of the Criminal Code, the Code of Criminal Procedure, special laws and extradition treaties signed and ratified by the Republic.
115. Articles 391 et seq. of the Code of Criminal Procedure regulate the extradition procedure, which in Venezuela is judicial and not administrative. The admissibility or otherwise of a request for extradition is decided by the Supreme Court, in particular the Criminal Appellate Division. Its agreement does not imply an appraisal as to the guilt or otherwise of the person concerned following an adversary procedure but is based solely on consideration of the documents communicated by the requesting State, always on the presumption of the good faith of the State and the truthfulness and accuracy of the information provided. The facts of the case are reviewed in terms of both form and substance, as required by applicable treaties and legislation.
116. The Venezuelan State, motivated by a high sense of responsibility, considers extradition to be a moral obligation, in accordance with international law, but reserves the right to grant or refuse it, having regard to whether, in each specific case, there would be any violation of the principles of national legislation and any departure from reason and justice.
[footnote in original omitted]