Leopoldo Eduardo López Mendoza and Lilian Adriana Tintori Parra v. Bolivarian Republic of Venezuela

The authors of the communication are Leopoldo Eduardo López Mendoza, born on 29 April 1971, and his wife Lilian Adriana Tintori Parra, nationals of the Bolivarian Republic of Venezuela. They are acting on their own behalf and on behalf of their two minor children, M.R.L.T. and L.S.L.T. They claim that the State Party has violated their rights under article 7 of the Covenant, read alone and in conjunction with article 2 (3). In addition, Mr. López Mendoza alleges violations of his rights under articles 9, 10, 14, 19 and 25. The authors are represented by counsel. The Optional Protocol entered into force for the State Party on 10 August 1978.

Mr. López Mendoza, founder of the political party Voluntad Popular, claims that he faces political persecution because of his opposition to the Government. He notes that there have been 27 administrative and criminal proceedings against him seeking to deprive him of his political rights, the most serious relating to his nine-year disqualification by the Office of the Comptroller General of the Republic. On the basis of these facts, the Inter-American Court of Human Rights issued a judgment in his favour.⁴

4. Inter-American Court of Human Rights, López Mendoza v. Venezuela, Judgment, 1 September 2011. ↩

Following the presidential election of 14 April 2013, won by Nicolás Maduro, Mr. López Mendoza – believing that election results were fraudulent – launched a movement called La Salida (The Way Out), to “affirm, in the face of oppression, the principle that peoples have rights against a Government that seeks to rule through imposition, authoritarianism, the undermining of democracy, corruption and inefficiency”.

On 12 February 2014, a student demonstration held in connection with that movement was suppressed by members of the Bolivarian National Intelligence Service, resulting in the deaths of three people.

The same day, the Public Prosecution Service sought the arrest of Mr. López Mendoza for “an unheard of and completely unjustified number of offences”: criminal association and incitement, public intimidation, setting fire to a public building, damage to public property, serious injury, intentional killing and terrorism.

On 16 February 2014, officers with the Bolivarian National Guard and the Directorate General of Military Counter-Intelligence entered his home, allegedly without a search warrant.

In a video posted on YouTube, Mr. López Mendoza called a demonstration in front of the offices of the Ministry of People’s Power for Internal Relations, Justice and Peace on 18 February 2014. That day, at around noon, he gave a speech and turned himself in to the security forces. He was transferred to the National Centre for Military Detainees.

On 19 February 2014, at Mr. López Mendoza’s initial court appearance, the custodial measure was affirmed.

On 4 April 2014, the Public Prosecution Service brought charges against Mr. López Mendoza as the instigator of and mastermind behind several offences. Four students were included in the case as the perpetrators. According to the Public Prosecution Service, Mr. López Mendoza “intentionally, by his speech, incites his followers to take to the streets and defy the laws, the Government and the institutions of the State”.

On 23 July 2014, the oral proceedings commenced. They lasted more than 13 months, with 70 hearings being held and 108 witnesses being heard.

On 10 September 2015, Mr. López Mendoza was sentenced to a term of imprisonment of 13 years, 9 months, 7 days and 12 hours for public incitement, property damage, arson and criminal association.

On 16 October 2015, Mr. López Mendoza filed an appeal. On 12 August 2016, the appellate court upheld the judgment at first instance.

Mr. López Mendoza filed an appeal in cassation, which was declared inadmissible on 16 February 2017.

On 7 July 2017, house arrest (with an electronic ankle monitor and surveillance by officers of the Bolivarian National Intelligence Service) was ordered as an alternative to deprivation of liberty.

On 1 August 2017, the court revoked the order of house arrest because of an alleged plan to escape. After four days in prison, Mr. López Mendoza was again transferred to his residence, which is where he was when the communication was submitted.

The authors argue that, although they have turned to the Working Group on Arbitrary Detention, which concluded that Mr. López Mendoza’s detention constituted arbitrary detention,⁵ and the Inter-American Commission on Human Rights, which granted precautionary measures to preserve and safeguard his life and personal safety,⁶ the communication is admissible, given that the Working Group on Arbitrary Detention is a special procedure and not treaty-based and the precautionary measures of the Inter-American Commission on Human Rights are stand-alone measures, given that, as no contentious case was filed, there has been no consideration of the merits.

5. Working Group on Arbitrary Detention, opinion No. 26/2014, para. 60. ↩
6. Inter-American Commission on Human Rights, resolutions 12/2015, para. 25, and 35/2015, para. 21. ↩

The authors claim that they have exhausted domestic remedies, in relation both to Mr. López Mendoza’s arbitrary conviction and conditions of detention and to the treatment received by his wife and children in prison (see para. 3.3 below).

Mr. López Mendoza claims that his rights under article 7 of the Covenant were violated owing to his conditions of detention (for the first four months of his detention, he had no access to natural light because a panel that had been placed in the window of his cell blocked the passage of the light).

He also complains of his treatment by prison staff. On 25 October 2014, they threw urine and excrement through the window of his cell in retaliation for his having said that he was protesting and for his banging on the bars of his cell, every day at 8 p.m., to “make a lot of noise and address the prison population about justice and respect for rights”. They also intentionally disturbed his sleep the nights before his hearings. He was, furthermore, threatened with death by Sergeant Corredor,⁷ who said to another prisoner, “We have to kill him; we can’t let him get there – I’m even willing to do it myself”, a fact that he reported on 20 July 2016.

7. Sergeant Carrero, according to the complaint filed internally. ↩

He also alleges psychological torture owing to the treatment received by his three family members at the prison. Ms. Tintori Parra claims that she was subjected to excessive, arbitrary, intrusive searches and was stripped naked against her will under threat of losing her visiting rights if she did not comply. On 17 January 2016, they checked the sanitary napkin that she was using. These incidents were reported, and the public prosecutor’s office ordered protection and security measures on 21 January 2016. In addition, on 8 May 2016, Ms. Tintori Parra received the following message: “Be careful, now they’re going to physically eliminate you guys”. On 5 March 2017, when they left the prison, she and her two children were pursued by four motorcycles and an unmarked car, causing her children to scream in fear.

Mr. López Mendoza also claims that his arrest was arbitrary because it was ordered for an unheard of and unjustified number of offences, in the context of a legitimate exercise of his right to freedom of expression, recalling that the Working Group on Arbitrary Detention found his detention to be arbitrary (see para. 2.15 above).

Mr. López Mendoza alleges a violation of article 10 of the Covenant because of the prolonged solitary confinement to which he was subjected. To punish him for being a dissident, he was placed in full isolation on 20 occasions – for a total of nine months –without access to visitors or telephone calls. The penalty was never preceded by a formal procedure.

Mr. López Mendoza alleges that his initial court appearance was irregular, as it took place outside the court’s territorial jurisdiction, in a bus called a “mobile court”, within the security perimeter of the prison.

He also alleges that his right to be heard by an independent and impartial judge was violated, as the judges and prosecutors who took part in his case were temporary or provisional officials appointed on a discretionary basis for political reasons, and the judges who heard his appeal in cassation had been chosen “because they were sympathetic to the Government in power”.

He also alleges a violation of the presumption of innocence because of the public statements of high-ranking officials who prejudged his case and said that he was guilty before he was convicted. In particular, Nicolás Maduro described Mr. López Mendoza as being part of a group of “right-wing fascists sowing the seeds of fear and violence” and, on the night of 12 February 2014, said: “I say to these fugitives from justice: Give yourselves up! You should be behind bars.” He also stated: “López ordered the street to be burned, and where is he? In prison, like I said.” Furthermore, the then Minister for Foreign Affairs, Elías Jaua, said that Mr. López Mendoza was responsible for the acts of violence. These statements had an impact not only on public opinion, but also on the provisional judges who convicted Mr. López Mendoza.

Mr. López Mendoza also alleges a violation of the principle of publicity, as the public did not have access to various hearings. The significant restrictions imposed by the security forces prevented the entry of citizens, lawyers, law students, representatives of political parties and friends.

He also alleges the arbitrary exclusion of evidence, including statements from students asserting that they alone were responsible for the violence of 12 February 2014. In addition, it was not taken into account that a prosecutor fled the country after the judgment at first instance and stated, in the United States of America, that he had been coerced into fabricating evidence: “I decided to leave Venezuela with my family because of the pressure being exerted by the executive branch and my superiors for me to continue to support the false evidence on which Leopoldo López had been convicted”.⁸ Nor was account taken of the report by a media outlet that a linguistics expert had retracted in the press the statement that she had made in court.

8. See https://lapatilla.com/2015/10/26/la-confesion-del-fiscal-franklin-nieves/. ↩

Mr. López Mendoza also alleges a violation of his right to a defence during the appellate proceedings because of the denial of the request by former Spanish Minister of Justice Alberto Ruiz-Gallardón, who had travelled to the Bolivarian Republic of Venezuela, to join his defence team.

Lastly, Mr. López Mendoza claims that there was an insufficient basis for the judgment, as the time, place and manner in which he coerced others to commit offences were not indicated.

Mr. López Mendoza also alleges the criminalization of expressions of criticism of the Government. The State Party convicted and “detained him arbitrarily for the mere expression of his ideas and thoughts, wrongly characterizing and inferring from those expressions” that they were intended to cause other people to damage public buildings. The circumstances of how, where or when Mr. López Mendoza might have influenced the commission of an offence through his alleged statements are not specified.⁹

9. Working Group on Arbitrary Detention, opinion No. 26/2014, para. 39. ↩

Finally, Mr. López Mendoza alleges that he was deprived of his political rights without any reasoning, justification, grounds or rationality.

The authors request that the Committee order the State Party to: (a) compensate them for the harm they have suffered and reimburse them for their legal fees and expenses; (b) vacate Mr. López Mendoza’s conviction and order his release; (c) restore his political rights; (d) hold an independent and impartial trial with respect to the acts of torture and cruel, inhuman and degrading treatment that Mr. López Mendoza was subjected to in prison; and (e) promote human rights training for prosecutors, judges and prison guards.

In its observations of 23 June 2020, the State Party argues that the communication is inadmissible on the grounds that the matter has already been examined by other international bodies, pointing to decision 104 EX/3.3 of 5 June 2015 of the United Nations Educational, Scientific and Cultural Organization (UNESCO), based on a complaint from Mr. López Mendoza regarding alleged violations of his right to freedom of expression, judicial guarantees and right to political participation.

It also argues that the communication is inadmissible for failure to exhaust domestic remedies in relation to the alleged violation of the right of Ms. Tintori Parra and her children to integrity of the person, as no information was provided on the outcome of the complaints.

Thirdly, it argues that the claims regarding liberty of person and judicial guarantees are inadmissible because they have not been substantiated, with the authors merely having expressed their disagreement with the judgments of the domestic courts and seeking to have the Committee act as a court of fourth instance.

Finally, the State Party reports that Mr. López Mendoza is a fugitive from justice. On 30 April 2019, he violated the terms of his house arrest in order to take part in an unsuccessful coup d’état with a group of soldiers equipped with weapons of war.¹⁰ Following the failure of the coup d’état, he entered the residence of the Spanish ambassador in Caracas. On 2 May 2019, the court revoked the order of house arrest, issued an arrest warrant and ordered that, once arrested, he serve the remainder of his sentence at the National Centre for Military Detainees.

10. See https://www.bbc.com/mundo/noticias-america-latina-48106547. ↩

On 23 February 2022, the authors asserted that the complaints procedure before the Committee on Conventions and Recommendations of the Executive Board of UNESCO does not constitute a procedure of international investigation or settlement.

The authors state that they exhausted the domestic remedies available in relation to the treatment received by Ms. Tintori Parra and their children, but they were ineffective.

In relation to the alleged lack of substantiation, they assert that what they seek through their communication is an acknowledgement of international responsibility for their political persecution.

As to the supervening events, the authors claim that after the officials who were holding Mr. López Mendoza under house arrest released him, he participated in protests in exercise of his legitimate right to demonstrate. The so-called “attempted coup d’état” put forward by the State Party is simply part of the government narrative; no judicial proceedings have yet been concluded in which it has been determined that that there was such an attempt and who was responsible.

The authors assert that Mr. López Mendoza was forced to seek refuge in diplomatic premises and later to “escape from Venezuela” to Spain.

On 24 August 2023, the State Party confirmed that Mr. López Mendoza had succeeded in escaping by fleeing to Spain after the failed coup attempt (which, far from being mere protests or simply “part of a narrative”, was in fact an attempted coup d’état, as was widely reported by national and international media).¹¹ In the State Party’s view, Mr. López Mendoza’s actions – when, as a fugitive from justice, he openly called for rebellion – can under no circumstances be considered to be covered by the exercise of the right to demonstrate.

11. See https://www.france24.com/es/20190430-guido-maduro-rebelion-venezuela-30a. ↩

The State Party specifies that, although the investigations into who was responsible are still ongoing, it cannot be ignored that Mr. López Mendoza himself posted on social media that he had “started the definitive phase for the end of the usurpation, Operation Freedom”, stating that he had been “released by the military on the order of the Constitution and President Guaidó” and adding: “Everyone mobilize. It’s time to conquer freedom.” In addition, in the early hours of 30 April 2019, he stated: “All Venezuelans who want freedom should come here, to be with our brave soldiers, to be with the people. The end of the usurpation has begun.”¹² Moreover, on 12 January 2023, he acknowledged that he was the key actor: “I acknowledge what we did ... it was a process managed along two parallel tracks; one was the military/police track, which I was responsible for leading.”¹³

12. See https://www.bbc.com/mundo/noticias-america-latina-48129400. ↩
13. APEX, “Rueda de prensa a Leopoldo López”, 13 January 2023, at 51:20–54:30, available at https://www.youtube.com/watch?v=FAKahyzy218. ↩

In the State Party’s view, the subterfuges used by the author to attempt to evade responsibility for acts that undermined peace, harmony and democratic, political and social stability must be taken into account by the Committee.

The State Party argues that the lawfulness of the deprivation of liberty and of the conviction was reviewed on at least eight occasions and that what the authors therefore seek is for the Committee to act as a court providing an additional level of review.

The State Party argues that the deprivation of liberty was ordered by a competent court in the context of criminal proceedings (initiated for suspected involvement in the commission of various criminal offences), in which Mr. López Mendoza was subsequently found guilty (of arson, public incitement, damage to public property and criminal association), having instigated the acts of violence of 12 February 2014 in the vicinity of the main offices of the Public Prosecution Service,¹⁴ where, after his speech, demonstrators set fire to official vehicles, destroyed the plaza of Parque Carabobo and damaged the ground floor of the building with Molotov cocktails (shattering windows, destroying the library and a security guard’s workstation and leaving graffiti saying, for example, “the way out”, “war to the death against the communist fraud” and “let’s burn this shit so they leave”).¹⁵

14. The court noted that, in the months prior to the events of 12 February 2014, Mr. López Mendoza made daily calls on social media for his 2.7 million followers to demonstrate, using the media to amplify “messages that, as a leader, serve to establish patterns of conduct” that caused “an aggressive attitude among his followers”. According to the court, the demonstrators “heeded the call” made by Mr. López Mendoza and “acted upon” his speeches. ↩
15. Judgment of conviction, pp. 257, 258, 267 and 268. ↩

The prosecutor asked the court to issue a warrant for the arrest of Mr. López Mendoza for his suspected involvement, as an instigator, in the offences of arson and property damage and for his suspected involvement, as a perpetrator, in the offences of public incitement and criminal association. The charges were duly substantiated with a detailed description, spanning 218 pages, of the conduct alleged and the evidence.

The judge hearing the case found the request for the arrest to be well-founded and issued arrest warrant No. 008-14.

The arrest was made on 18 February 2014, after Mr. López Mendoza, accompanied by his lawyer, voluntarily turned himself in during a demonstration that he had called. The opinion of the Working Group on Arbitrary Detention was based on a false premise put forward by Mr. López Mendoza: that the arrest had been made without a warrant.

As the judge also issued search warrant No. 003-2014 for the purpose of gathering evidence pertinent to the criminal investigation, the reports contained in the communication of a search being carried out without judicial authorization are also false.

On 18 February 2014, Mr. López Mendoza had to be taken to court by helicopter for his initial court appearance because the participants in a demonstration that he had called prevented the vehicle in which he was being transported from getting through. Mr. López Mendoza’s defence counsel requested that the hearing be postponed until the following day, and that request was granted.

The National Centre for Military Detainees was designated as the place of detention in order to provide Mr. López Mendoza with the maximum protection and thereby guarantee the integrity and security of his person, given the conditions at that facility. Mr. López Mendoza’s legal representatives repeatedly requested, both domestically and before the Inter-American Commission on Human Rights, that the State Party refrain from transferring him to a civilian prison. His family members made public allegations to prevent any possibility of a transfer to a civilian facility.

There has, in addition, been no violation of Mr. López Mendoza’s right to integrity of the person due to his conditions of detention at the National Centre for Military Detainees, where he had an individual, private cell measuring 38.94 m² (27.61 m² for the living area and 11.33 m² for the bedroom and bathroom), with access to ventilation and natural light, a kitchen, a refrigerator, an electric coffee maker, a television, sanitary facilities equipped with a heater, furniture and a library (with 152 books and 144 films on DVD having been amassed). He was able to have daily contact with other persons deprived of liberty, voluntarily participated in sports and religious and educational activities and completed graduate level studies.

Under the rules of the facility, persons deprived of liberty are entitled to family visits three days a week. In Mr. López Mendoza’s case, the guaranteed visitation rights included conjugal visits – resulting in his daughter’s conception – and he received much more favourable treatment than other prisoners. The organization of birthday parties for his children was authorized and facilitated, with various guests entering with prepared food, birthday cakes and drinks. A variety of products were regularly allowed to be brought in for his preparation and consumption.

The State Party also denies that Mr. López Mendoza was subjected to harmful conduct by prison staff. It asks the Committee to consider that the authors have submitted several false pieces of information, which they themselves contradicted during the domestic proceedings. The strongest evidence of the falsity of this allegation is contained in the statements made by Mr. López Mendoza during the hearing before the appellate court: “I have been a prisoner at a military facility for two years and six months and have deep respect for Venezuelan soldiers. I have had some incidents with a few but have been able to get along with most of the soldiers, guards and prisoners”.

Lastly, the State Party argues that, in order to prevent the entry of prohibited objects, prison authorities may carry out personal searches of visitors, including invasive, unclothed searches (conducted in private, by staff of the same sex and with prior consent) when the circumstances warrant it, as in the present case (the authors attempted to violate the facility’s rules in order to bring in and take out prohibited items, as they themselves have admitted (see para. 6.17 below)).

The State Party argues that solitary confinement was used as a disciplinary penalty in response to failures to comply with the facility’s rules and was ordered on the basis of the facility’s internal regulations, the Prison System Act and the Prisons Code. Mr. López Mendoza was notified in writing of the disciplinary measures adopted and was informed of his right to appeal. No appeal was filed.

In the communication itself, it is acknowledged that the authors violated the prison’s rules, with it being noted, for example, that “they managed – with great difficulty – to circumvent security measures to remove sketches and writings by Mr. López Mendoza, which make up the book Preso pero libre”. The penalties were aligned to the seriousness of the infractions, ranging from confinement in his own cell for 2 to 15 days to confinement in a punishment cell for a maximum period of 15 days. This did not involve being held incommunicado. For example, Mr. López Mendoza was punished four times for the possession of mobile telephones, expressly prohibited under the facility’s rules; four times for offensive and insulting conduct toward staff; twice for posting videos recorded inside the prison on his Twitter account, considered a very serious infraction; once for political proselytism; once for sending correspondence clandestinely; and additionally for having caused a disturbance at the prison.

The State Party also argues that there was no violation of article 14, reiterating that it is for the domestic courts to assess the facts and evidence. The criminal proceedings were highly complex: the trial lasted 14 months because of the complexity of the case, the large volume of evidence (123 witness and expert statements and 23 pieces of documentary evidence were processed) and the appeals filed by the defence. The progress of the trial was hindered between October 2014 and January 2015 owing to Mr. López Mendoza’s failure to appear: on more than 10 occasions, hearings could not be held because of his voluntary failure to attend, demonstrating disdain for the trial. The trial record contains 1,321 pages.

The State Party also indicates that the alleged lack of jurisdiction of the mobile court was raised and resolved during the domestic proceedings. The fact that the court moved outside its established seat did not cause it to lose territorial jurisdiction, which is determined by the place where an act is committed. The establishment of a mobile court was necessary (there were violent demonstrations in the vicinity of the courthouse). It was incumbent upon the court to take the necessary measures to ensure that Mr. López Mendoza was brought before a court within 48 hours of his arrest. During the hearing, defence counsel requested a postponement of the proceedings in order to be able to study the records that had been added to the case file, which the court granted.

At this hearing, the court rejected the Public Prosecution Service’s initial characterization of the three most serious offenses (intentional killing, serious injury and terrorism), demonstrating the independence of the judiciary.

Regarding the alleged lack of impartiality of the judges and prosecutors, the authors confine themselves to general allegations about the independence of the courts and prosecutors in the Bolivarian Republic of Venezuela, without specifying how the actions of the judges and prosecutors involved in the case indicated bias. An assessment of the independence of a judge or prosecutor must be based on an analysis of his or her conduct in a specific case. Domestic law provides for a set of remedies for challenging the impartiality of judges; none have been pursued by the authors. All the judges who heard the case showed no noticeable preferences at any time, with, for example, one judge sustaining objections made by both the defence and the prosecution. It cannot be said that any decision was rendered that was not justified on the basis of a law to the extent that can reasonably be expected.

Regarding the alleged violation of the right to submit evidence, the State Party argues that, contrary to what is alleged, the case file shows that the evidence submitted was partially admitted. Regarding the allegation that no consideration was given to statements made, in the United States of America, by a former prosecutor following the decision at first instance, the authors filed no motion for review to challenge the alleged lack of objectivity in the proceedings. Regarding the allegation that no consideration was given to media reports – also following the judgment at first instance – of an alleged retraction by an expert of technical and scientific assertions contained in her expert report and testimony at trial, the State Party emphasizes that the appellate court, in line with Venezuelan law, which contains clear provisions on the admissibility of evidence at second instance, ruled on the request that the retraction be admitted as supervening evidence and found it inadmissible.¹⁶ If, in the defence’s view, statements made in the media after the trial – during which the expert testified freely, without coercion and under oath – were more credible than what was stated at the trial, it could have filed a motion for review, which it did not.

16. It concluded that “testimonial evidence may be admitted only if no recording system existed or was used at trial, which was not the case”. ↩

Regarding the alleged violation of the principle of publicity, the State Party affirms that the oral proceedings were indeed public. Media access is not mandatory and is subject to the discretion of the judge. In the present case, the court decided, with justification, not to allow the presence of the media in order to ensure that the normal conduct of the trial would not be hindered. The defence did not file an appeal. Furthermore, at no time did the oral proceedings take place behind closed doors or without the presence of the public, and the restrictions imposed by security agencies in the vicinity of the courthouse were justified for the purpose of maintaining order and security, given the large crowds that were gathering there daily.

The court also examined the allegation that the refusal to allow the appointment of technical consultants constituted a restriction on the right to a defence. The applications of non-nationals not admitted to practice in the Bolivarian Republic of Venezuela were declared invalid for being in contravention of the country’s laws.

Regarding the alleged violation of the right to the presumption of innocence, the State Party argues that, although Mr. López Mendoza’s arrest was a matter of public interest, and therefore led to broad public debate, there was no interference by the executive branch in the judiciary. The State Party also argues that the defence repeatedly sought to influence the judge with opinions extraneous to the proceedings, by submitting statements from various international figures requesting Mr. López Mendoza’s immediate release.

Regarding the allegation that there was an insufficient basis for the judgment, the State Party argues that all the evidence was examined and considered. It reaffirms that the authors seek to have the Committee act as a court of fourth instance.

In particular, the statements were evaluated to establish criminal liability for threatening public order and disseminating messages that incited crime, calling for civil and military insurrection. It was found that Mr. López Mendoza had instigated the violent demonstration during his call for a coup d’état known as “La Salida”. Of a total 707 messages sent between January and March 2014, “only 18 call for peaceful protest”, “in 33 instances, he uses the word ‘criminal’ to refer to President Maduro and other representatives of the branches of Government, and in 68 occasions, he employs the phrase ‘#LaSalida as a leitmotif’”. There are “constant insults and incitement of intolerance for the President and what he represents”. In the conviction, it was found that Mr. López Mendoza “did not use the appropriate means established in the Constitution to have his demands addressed, but instead used the art of speech to make his followers believe that there was a supposed constitutional way out ... thereby sending an inappropriate message to his followers, most of whom were young, calling on them to take to the streets”. Mr. López Mendoza was found criminally responsible for instigating acts of arson, punishable under article 343 of the Criminal Code by 4 to 8 years’ imprisonment, for which he was sentenced to “the average term, 6 years’ imprisonment”; instigating acts of property damage, punishable under articles 473 (3) and 474 of the Criminal Code by a term of imprisonment of 1 month to 2 years, for which he was sentenced to a term of 1 year and 15 days; committing the offence of public incitement, punishable under article 285 of the Criminal Code by 3 to 6 years’ imprisonment, for which he was sentenced to 4 years and 6 months in prison; and committing the offence of criminal association, punishable by 6 to 10 years’ imprisonment, for which he was sentenced to 8 years’ imprisonment. For the calculation of the combined sentence, article 88 of the Criminal Code was applied, which provides that the penalty applied will be that of the most serious offence, increased by half the other penalties, resulting in 13 years, 9 months, 7 days and 12 hours of imprisonment (instead of 19 years, 6 months and 15 days).

The State Party argues that there was also no violation of the right to freedom of expression. Mr. López Mendoza actively participated at the hearings that he chose to attend, expressing his opinions against the Government freely and voluntarily.

He was also allowed, before and during his detention, to express his ideas against the Government through national and international media. When he was in prison, he was interviewed by the international television channel CNN en Español and the Spanish newspaper El País. He also sent letters to different media outlets for publishing. He was never prevented from expressing himself on his Twitter account.

The State Party disputes that Mr. López Mendoza was convicted for the “mere” expression of ideas critical of the Government. Freedom of expression is not an absolute right. It was demonstrated that his speeches had content that undermined the country’s democratic stability. By claiming that the Government has ties to drug trafficking, that it is corrupt, oppressive and undemocratic, and that it is necessary for the people to take to the streets to reclaim democracy and “go after the heads of the public authorities”,¹⁷ he had a significant impact among a segment of the population that was mobilized for a series of violent protests. For this reason, he was recognized as the perpetrator of the criminal offences, in criminal proceedings that included at least 100 digitized files, 124 witness and expert statements and 23 pieces of documentary evidence. Mr. López Mendoza sent inappropriate messages to his followers in speeches inciting civil and military insurrection, and he played a decisive, central role in the carrying out of the offences of arson, property damage, public incitement and criminal association during the events of 12 February 2014, which resulted in the loss of human life and millions in damage to public and private property in the country.

17. Judgment at first instance, p. 45. ↩

The State Party argues that deprivation of political rights, for a duration equal to that of the sentence, is a consequence of criminal punishment.

On 19 October 2023, the authors reiterated that the “alleged attempted coup d’état” of 30 April 2019 is part of the government narrative.

The authors report that they are living in Spain. Although they are outside Venezuelan territory, there continues to be a threat to Mr. López Mendoza’s life and liberty and the integrity of his person owing to the arbitrary sentence imposed. The extradition request sent by the Supreme Court of Justice to the Government of Spain in May 2021 is unfounded and constitutes yet another example of the “relentless campaign of political and criminal persecution waged by the Venezuelan Government” against him.

The authors reiterate that Mr. López Mendoza’s detention was arbitrary because it was carried out to punish him for his legitimate exercise of his freedom of expression. The authors allege that it “is consistent with the Venezuelan Government’s deplorable pattern of repressing political dissent”.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

In accordance with article 5 (2) (a) of the Optional Protocol, the Committee must not consider any communication unless it has ascertained that the same matter is not being examined under another procedure of international investigation or settlement. The Committee notes the State Party’s argument that the same matter has already been examined by UNESCO. The Committee recalls that the examination of individual cases concerning allegations of human rights violations under the complaints procedure of the Committee on Conventions and Recommendations of the Executive Board of UNESCO does not constitute, for the purposes of article 5 (2) (a), another procedure of international investigation or settlement because the State Party concerned is not obligated to cooperate, there is no finding of whether specific rights have been violated, the procedure is confidential, and there is no authoritative determination of the merits of a case.¹⁸ The Committee also recalls that requests for precautionary measures submitted to the Inter-American Commission on Human Rights without a related individual petition do not involve a consideration of the merits,¹⁹ and that it is competent to consider a communication the examination of which has already been concluded under another procedure of international investigation or settlement unless the State Party has made a reservation explicitly prohibiting successive appeals.²⁰ In the present case, the Working Group on Arbitrary Detention has concluded its examination of the matter and the State Party has not made any relevant reservation. In the light of the foregoing, the Committee concludes that article 5 (2) (a) is not an obstacle to the admissibility of the present communication.

18. See Bandajevsky v. Belarus (CCPR/C/86/D/1100/2002). ↩
19. F.F.J.H. v. Argentina (CCPR/C/132/D/3238/2018), para. 17.3. ↩
20. Tran v. Australia (CCPR/C/143/D/3665/2019), para. 9.2. ↩

The Committee notes the State Party’s argument that the part of the communication relating to the claims of a violation of article 7 in relation to Ms. Tintori Parra and her children is inadmissible for failure to exhaust domestic remedies. The Committee also notes the authors’ claim that the remedies were exhausted but were ineffective. The Committee recalls that the purpose of requiring that domestic remedies be exhausted is to give States Parties the opportunity to perform their duty to protect and guarantee Covenant rights.²¹ The Committee observes from the case file that Ms. Tintori Parra sought remedies with respect to the searches and the delay in entering the prison as well as events that occurred outside the prison (threats by private individuals). The Committee therefore takes the view that article 5 (2) (b) of the Optional Protocol would not preclude its consideration of this part of the communication.

21. Settled jurisprudence of the Committee since T.K. v. France, communication No. 220/1987, para. 8.3. ↩

However, the Committee observes that the authors received a positive response to their complaints. In connection with the complaints regarding events that occurred outside the prison, the court ordered surveillance and protection for Ms. Tintori Parra and her two children. With respect to the complaints regarding the searches, the Committee notes that protection and security measures were ordered for Ms. Tintori Parra. Lastly, regarding the complaints about the treatment received by the children in connection with their entry into the prison after an excessive wait, the Child Protection Council of the municipality of Chacao, in response to a request for protection measures, issued an order to the prison director to ensure that the children were treated appropriately. Accordingly, in the light of the protection measures ordered and in the absence of information showing that these measures were inadequate, the Committee considers that the claims of a violation of article 7 in respect of Ms. Tintori Parra’s children have not been sufficiently substantiated and declares them inadmissible under article 2 of the Optional Protocol.

The Committee notes the State Party’s argument that the authors merely express their disagreement with the judgments of the domestic courts and reiterate arguments that have already been made before and rejected by the domestic courts, seeking to have the Committee act as a court of fourth instance. However, the Committee observes that the authors’ central complaint does not pertain solely to the courts’ assessment of the facts and evidence and application of domestic law; rather, it relates to the violation of the right to be heard by an independent and impartial judge. The Committee considers that the claims relating to the lack of independence and impartiality of temporary or provisional judges and prosecutors have been sufficiently substantiated for the purposes of admissibility and declares that it is not precluded, on the basis of article 2 of the Optional Protocol, from examining this part of the communication.

With respect to the alleged lack of jurisdiction of the mobile court, the Committee observes that this relates to the application of domestic law by the courts of the State Party. The Committee recalls that, according to its settled jurisprudence, the assessment of facts and evidence and the interpretation of legislation are, in principle, matters for national courts, unless they are manifestly arbitrary or amount to a denial of justice.²² The Committee observes that this issue was already raised during the domestic criminal proceedings, and both the territorial jurisdiction of the mobile courts and the need for them in the present case, given the media interest and the gathering of demonstrators near the courthouse, were established. In the light of the foregoing and in the absence of a manifestly arbitrary element, the Committee considers that it is not for it to reinterpret or question the applicable national legislation.

22. See Simms v. Jamaica (CCPR/C/53/D/541/1993). ↩

Likewise, with regard to the alleged violation of the right to a defence during the appellate proceedings due to the refusal to allow the participation of the former Minister of Justice of Spain, the Committee observes that the domestic judicial authorities reached a decision on the matter, and their conclusions do not appear to have been manifestly arbitrary. Furthermore, Mr. López Mendoza does not establish how the former minister’s lack of involvement affected his defence, as there was, for example, no explanation of how his expertise was unique. The Committee thus considers that this claim was not sufficiently substantiated and declares it inadmissible under article 2 of the Optional Protocol.

The Committee also observes that the appellate court ruled on the alleged violation of the principle of publicity. It concluded that the trial had been oral and public to the extent allowed by the structural limits of the courtroom, “with the public having been present at almost all the hearings for more than a year”.²³ The Committee also observes that, although some persons had been ordered to leave the courtroom for illegally recording parts of the trial, the court did not order the doors to be closed. In relation to the denial of access to the media, the appellate court analysed the situation in comparative law and found that it was “not a per se violation of the guarantee of a public trial”. It concluded that in the present case “the grounds for the express restrictions on the media were provided at the time”, and such restrictions “were permissible, at the judge’s discretion, provided that the grounds for them were stated”.²⁴ In light of the foregoing, the Committee considers that there may be a basis for the explanation provided by the State Party regarding the prevention of disruptions to the normal conduct of proceedings, and it therefore concludes that this claim was not sufficiently substantiated and declares it inadmissible under article 2 of the Optional Protocol.

23. Appellate judgment, p. 77. ↩
24. Ibid., pp. 77–79. ↩

In relation to the alleged arbitrary exclusion of evidence put forward by the defence, such as statements by students claiming that they alone were responsible for the violence of 12 February 2014, the Committee does not see in the judgment at first instance a request related to excluded statements by students; nor does it find in the appellate judgment any grounds for the appeal related to such an exclusion. In addition, with respect to the claim that no consideration was given to the statement of a former prosecutor, made in the United States of America, that he had been coerced into fabricating evidence and the retraction, in the media, by an expert witness of her expert report and her statement in court, the Committee observes that the appellate court, which considered the admissibility of the evidence at second instance, noted that the expert witness had testified during the trial and been examined and cross-examined by the parties and that testimonial evidence could be admitted only if no recording system had existed or been used at trial, which had not been the case. In the light of the foregoing, the Committee concludes that these claims have not been sufficiently substantiated and are therefore inadmissible under article 2 of the Optional Protocol.

The Committee considers that the claims relating to the violation of the right to the presumption of innocence have been sufficiently substantiated for the purposes of admissibility and declares that it is not precluded, on the basis of article 2 of the Optional Protocol, from examining this part of the communication.

The Committee notes the claim that Mr. López Mendoza’s rights under article 7 were violated owing to the conditions of his detention at the prison, the treatment he received from staff and the psychological torture that he experienced because of how his family members were treated. The Committee also notes that the State Party disputes these claims, indicating that the author received favourable treatment compared to other convicted persons and requesting that the submission of false information be considered (see paras. 6.12–6.15 above).

The Committee considers that, as Mr. López Mendoza has not refuted the arguments put forward by the State Party with regard to the conditions of his cell and has not contradicted the information provided by the State Party on the treatment by staff, he has not sufficiently substantiated these claims for the purposes of admissibility, and it therefore declares them inadmissible under article 2 of the Optional Protocol.

Furthermore, the Committee considers that the claims of psychological torture resulting from the treatment of his family members, which are based on other claims that the Committee has not accepted, have not been sufficiently substantiated and therefore declares them inadmissible under article 2 of the Optional Protocol.

The Committee also notes the claim of a violation of article 10 in respect of Mr. López Mendoza as a result of the solitary confinement – lasting a total of nine months, out of the three years and four months of his detention at the National Centre for Military Detainees – imposed without formal proceedings or the possibility of appeal. The Committee also notes the State Party’s argument that these penalties were applied in response to failures to comply with the facility’s rules (such as the recording and posting of several videos on Twitter while inside the prison, the possession of mobile telephones, insulting conduct toward staff and the sending of clandestine correspondence) and that Mr. López Mendoza was notified in writing of the penalties and provided with information on his right to appeal, although he did not appeal. Accordingly, the Committee considers that the claims of a violation of article 10 have not been sufficiently substantiated and declares them inadmissible under articles 2 and 5 (2) (b) of the Optional Protocol.

The Committee considers that the claims relating to violations of articles 9, 19 and 25 have been sufficiently substantiated for the purposes of admissibility and declares that it is not precluded, on the basis of article 2 of the Optional Protocol, from examining them.

The Committee considers that the claims under articles 9, 14 (1) and (2), 19 and 25 of the Covenant have been sufficiently substantiated for the purposes of admissibility and proceeds with its examination on the merits.

The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

The Committee notes that the authors claim that there was a violation of Mr. López Mendoza’s right to freedom of expression because his conviction constituted criminalization for expressing criticism of the Government and was handed down for the “mere expression of his ideas and thoughts” and without any description of “the circumstances of how, where or when” his “alleged statements” might have influenced the commission of the offences (see para. 3.13 above). The Committee also notes that the State Party disputes that Mr. López Mendoza was convicted for the mere expression of ideas critical of the Government and claims that he was recognized as the perpetrator of several offences for having threatened public order by disseminating messages calling for civil and military insurrection and, in particular, issuing a call to “go after the heads of the public authorities”, and specifically for having instigated the violent demonstration of 12 February 2014 in connection with his movement La Salida (see paras. 6.27–6.30 above).

The Committee notes that freedom of expression is an indispensable condition for the full development of the person, is essential for any society and constitutes the foundation stone for every free and democratic society:²⁵ democracy is not conceivable without the possibility that dissenting political voices be fully heard,²⁶ so that democracy will not be enervated, pluralism will not deteriorate, the mechanisms for complaint by the individual will not become ineffectual and, above all, a fertile ground will not be created for authoritarian systems to take root in society.²⁷ The Committee also recalls that, under article 19 (3) (b), of the Covenant, as the exercise of the right to freedom of expression carries with it special duties and responsibilities, it may be subject to certain restrictions that are provided by law and necessary, in particular, for the protection of national security or of public order, or of public health or morals. Such restrictions must conform to the strict tests of necessity and proportionality.²⁸ The Committee also recalls that States Parties must put in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression and that article 19 (3) may never be invoked as a justification for the muzzling of any advocacy of multiparty democracy, democratic tenets and human rights.²⁹ Lastly, the Committee recalls that, when a State Party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the statements and the harm.³⁰

25. General comment No. 34 (2011), para. 2. ↩
26. Inter-American Court of Human Rights, Ivcher-Bronstein v. Peru, Judgment, 6 February 2001, para. 151. ↩
27. Inter-American Court of Human Rights, Herrera-Ulloa v. Costa Rica, Judgment, 2 July 2004, para. 116; Granier et al. (Radio Caracas Televisión) v. Venezuela, Judgment, 22 June 2015, para. 140; and San Miguel Sosa et al. v. Venezuela, Judgment, 8 February 2018, para. 154. ↩
28. General comment No. 34 (2011), para. 22. ↩
29. Ibid., para. 23. ↩
30. Ibid. para. 36. See also Shin v. Republic of Korea (CCPR/C/80/D/926/2000), paras. 7.2 and 7.3; and Barriga et al. v. Ecuador (CCPR/C/136/D/3267/2018), para. 9.5. ↩

In this regard, the Committee notes the information provided by the State party on Mr. López Mendoza’s ability to express himself while in detention (see para. 6.29 above). The Committee also notes the decisions of the courts on Mr. López Mendoza’s statements, including some made after the events of 12 February 2014 (see para. 6.27 above). However, no direct and immediate connection was established between Mr. López Mendoza’s statements and the harm that occurred on 12 February 2014. As noted by the Working Group on Arbitrary Detention, the Government does not indicate how Mr. López Mendoza’s words might have led to the acts of arson and the damage to property with which he is charged. It does not specify which parts of his statements may have caused those serious acts or incited their commission. Furthermore, when the Government refers to the offence of unlawful association, it does not make clear which illegal group it is referring to.³¹ The Committee also shares the view of the Working Group that there is no evidence to suggest that there is a cause and effect relationship between the organization of a political demonstration, the speech made in the course of that demonstration and the deaths, injuries and material damage that occurred on the fringes of the demonstration, which had, moreover, already ended.³² This conclusion is reinforced by the fact that the courts based their findings in part on statements made after the events and on statistics that do not provide specific and individualized evidence of a threat to national security under article 19 (3) (see para. 6.29 above). In the light of the foregoing, the Committee concludes that his conviction was handed down to curb his expression of political dissent, in violation of article 19 (3) of the Covenant.

31. Working Group on Arbitrary Detention, opinion No. 26/2014, para. 52. ↩
32. Ibid., para. 54. ↩

The Committee notes that the authors claim that the facts of the present case constitute a violation of Mr. López Mendoza’s liberty of person because his arrest was arbitrary, as it was ordered for “an unheard of and unjustified number of offences” and as it was a punishment for his legitimate exercise of his right to freedom of expression. The Committee also notes the State Party’s argument that it is not true that the arrest was made without a warrant, as alleged by Mr. López Mendoza before the Working Group on Arbitrary Detention and its indication that the opinion of the Working Group was based on this false premise. The State Party points out that, after the events of 12 February 2014, when, after Mr. López Mendoza’s speech, demonstrators set fire to official vehicles, attacked and destroyed the plaza of Parque Carabobo and damaged the ground floor of the building of the Public Prosecution Service, his deprivation of liberty was ordered by a competent court in the context of criminal proceedings initiated for his suspected involvement in the commission of various criminal offences defined under domestic law, in which he was subsequently found guilty, it having been proved that he made daily calls on social media for his 2.7 million followers to demonstrate, causing “an aggressive attitude among his followers” (see para. 6.5 above). The prosecutor thus asked the court to issue an arrest warrant on suspicion of the commission of several offences. The judge hearing the case declared the request for the arrest to be well-founded and issued arrest warrant No. 008-14.

The Committee recalls that article 9 provides that no one shall be deprived of liberty except on such grounds and in accordance with such procedure as are established by law.³³ While the Committee observes that arrest warrant No. 008-14 was indeed issued in response to the initiation of criminal proceedings for the suspected commission of several offences, it also considers that the statements made by the author at the time did not appear to justify the criminal charges and thus the arrest warrant.³⁴ Furthermore, having concluded above that there was a violation of article 19, the Committee considers that the author’s arrest also curbed his political dissent, in violation of article 9 of the Covenant.

33. General comment No. 35 (2014), para. 22. See also Lula da Silva v. Brazil (CCPR/C/134/D/2841/2016 (Final proceedings)), para. 8.2. ↩
34. See also Inter-American Commission on Human Rights, Situation of Human Rights in Venezuela, 2017 (OEA/Ser.L/V/II. Doc. 209), para. 92. ↩

The Committee notes that the authors claim that their right to be heard by an independent and impartial judge was violated, as the judges and prosecutors who took part in the case were temporary or provisional officials appointed on a discretionary basis for political reasons. The Committee also notes that, in the State Party’s view, the authors confine themselves to general allegations about the independence of the courts and prosecutors, without clearly specifying how the actions of the temporary or provisional judges and prosecutors were biased and without having pursued any of the remedies provided for under domestic law for challenging the impartiality of judges. Furthermore, in the State Party’s view, all the judges who heard the case showed no noticeable preferences at any time, sustaining objections made by both the prosecution and the defence.

The Committee recalls its long-standing jurisprudence according to which the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception.³⁵ In addition, The Committee recalls that States Parties should take specific measures to guarantee the independence of the judiciary, protect judges from any form of political influence and establish clear procedures and objective criteria for appointment, remuneration, tenure, promotion, suspension, dismissal and disciplinary sanctions. Furthermore, a situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal.³⁶ In the present case, in which high-ranking officials made statements against a recognized political dissident prior to any conviction, in a judicial context where judges are appointed by the executive branch under provisional appointments that, moreover, deprive them of the stability and composure needed for the performance of their duties, including the examination of highly political cases, the Committee considers that all of the foregoing factors may create an atmosphere of pressure where justice officials feel they must follow a certain direction, thus giving rise to a perception of a lack of judicial guarantees.³⁷ Because of this set of factors – the lack of necessary guarantees for security of tenure, the appointment of judges by the executive branch, the condemnatory statements by high-ranking officials and the political persecution against the author – the Committee concludes that there has been a violation of article 14 (1) of the Covenant.

35. General comment No. 32 (2007), para. 19. See also Lula da Silva v. Brazil, para. 8.9. ↩
36. Cedeño v. Bolivarian Republic of Venezuela (CCPR/C/106/D/1940/2010), para. 7.3; and Brewer‑Carías v. Bolivarian Republic of Venezuela (CCPR/C/133/D/3003/2017), paras. 9.2 ff. See also CCPR/C/VEN/CO/5, para. 35. See further Inter-American Court of Human Rights, Casa Nina v. Peru, Judgment, 24 November 2020, paras. 81–83; Martínez Esquivia v. Colombia, Judgment, 6 October 2020, para. 97; Apitz Barbera et al. v. Venezuela, Judgment, 5 August 2008, para. 43; and Álvarez Ramos v. Venezuela, Judgment, 30 August 2019, para. 148. ↩
37. Conference room paper setting out the detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, para. 162; available at https://www.ohchr.org/en/hr-bodies/hrc/regular-sessions/session45/list-reports. See also Inter-American Commission on Human Rights, Situation of Human Rights in Venezuela, 2017, para. 92. ↩

The Committee notes that the authors claim that the facts of the present case constitute a violation of the right to the presumption of innocence because of the public statements of high-ranking officials who prejudged the case, including statements by the President of the Republic – who described Mr. López Mendoza as being part of a group of “right-wing fascists sowing the seeds of fear and violence”; said on night of 12 February 2014: “I say to these fugitives from justice: Give yourselves up! You should be behind bars”; and stated: “López ordered the street to be burned, and where is he? In prison, like I said” – and statements by the then Minister for Foreign Affairs, Elías Jaua, who said that Mr. López Mendoza was responsible for the acts of violence (see para. 3.8 above). The Committee also notes the State Party’s argument that, as a matter of public interest, Mr. López Mendoza’s arrest led to broad public debate as a matter of general interest but did not entail interference by the executive branch in the judiciary. The State Party also argues that the defence repeatedly sought to influence the judge by submitting statements from various international figures that went so far as to request Mr. López Mendoza’s immediate release.

The Committee recalls that it is a duty for all public authorities to refrain from prejudging the outcome of a trial, e.g. by abstaining from making public statements affirming the guilt of the accused,³⁸ and a direct reference to a case made by the President before a judgment is handed down can violate the principle of the presumption of innocence.³⁹ The Committee observes that, in the present case, these statements have neither been refuted nor explained by the State Party. It also recalls its earlier conclusion regarding judges and prosecutors who lack the necessary guarantees for security of tenure, including stability and continuity, and may therefore be influenced in their work by statements of the Head of State. Therefore, the Committee considers that, in the context of a trial of a political dissident, such statements by the Head of State may have an impact on prosecutors and judges, who may feel compelled to lean in a certain direction. The Committee concludes that, because of the direct reference to the case by high-ranking officials and the President of the country and the manner in which their statements were made, there is a presumed violation of the principle of the presumption of innocence that applies to every accused person in the absence of a judgment to the contrary.

38. General comment No. 32 (2007), para. 30. See also Zinsou v. Benin (CCPR/C/111/D/2055/2011), para. 7.3 ↩
39. Cedeño v. Bolivarian Republic of Venezuela, para. 7.4. ↩

Finally, the Committee notes the claim that Mr. López Mendoza’s right to vote and to stand for election was violated because he was deprived of his political rights without reasonableness, justification or grounds. The Committee also notes the State Party’s argument that the deprivation of political rights was applied in accordance with the Criminal Code as a consequence of criminal punishment and for the duration of the sentence.

While the Committee observes that the deprivation of political rights was applied in accordance with the Criminal Code as a consequence of criminal punishment and is proportionate to the length of the sentence, as required by general comment No. 25 (1996),⁴⁰ it also considers that, in the present case, the violation of article 25 follows directly from the findings of violations of articles 9, 14 and 19.

40. General comment No. 25 (1996), para. 14. ↩

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the information before it discloses a violation by the State Party of articles 9, 14 (1) and (2), 19 and 25 of the Covenant.

Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide an effective remedy. Accordingly, the State Party should: (a) make full reparation to individuals whose Covenant rights have been violated, including through adequate compensation; and (b) review the conviction handed down on 10 September 2015. The State Party is also under an obligation to take steps to prevent similar violations from occurring in the future. In this regard, the State Party should: (a) take all necessary measures to effectively guarantee the exercise of freedom of expression; and (b) take the necessary legislative or administrative measures to increase the independence and impartiality of the judicial system.

Bearing in mind that, by becoming a Party to the Optional Protocol, the State Party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the present Views. The State Party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State Party.

Estoy de acuerdo con las conclusiones del Comité sobre la admisibilidad de la comunicación y sobre la violación, en contra de Leopoldo Eduardo López Mendoza, de los derechos que le confieren los artículos 9 (libertad individual), 19 (libertad de expresión), 14 (derecho a un juicio justo, presunción de inocencia y derechos de la defensa) y 25 (derechos electorales) del Pacto. Sin embargo, me resulta imposible compartir la conclusión del Comité sobre la inadmisibilidad de la denuncia de malos tratos (art. 7) y las condiciones de detención inhumanas (art. 10). Esta conclusión contradice flagrantemente las conclusiones de la Comisión Interamericana de Derechos Humanos sobre el Sr. López Mendoza y su familia, así como las conclusiones de la misión internacional independiente de determinación de los hechos sobre la República Bolivariana de Venezuela establecida en el marco de las Naciones Unidas⁴¹, que cabría esperar que el Comité hubiera tenido en cuenta. Sin embargo, lo que es más importante, la decisión del Comité contiene una contradicción interna que no solo invalida la conclusión sobre los artículos 7 y 10 del Pacto, sino que revela el carácter artificial de su enfoque de la cuestión del agotamiento de los recursos internos y de la condición de fundamento de las alegaciones, así como los peligros del mensaje que envía a los opositores políticos una decisión de este tipo. El presente voto particular insistirá en estos puntos.

41. Véase, en particular el documento de sesión con las conclusiones detalladas de la misión internacional independiente de determinación de los hechos sobre la República Bolivariana de Venezuela. ↩

En los párrafos 8.3 y 8.4 del dictamen, el Comité rechaza las quejas de la esposa y los hijos del autor en relación con los artículos 7 y 10, en parte por no haberse agotado los recursos internos (párr. 8.3) y en parte por falta de fundamento (párr. 8.4). Sin embargo, estos dos aspectos de la decisión no resisten el análisis. En cuanto al agotamiento de los recursos internos, resulta sorprendente que el Comité remita a la familia del autor a los tribunales del Estado Parte, de los que afirma más adelante, en la parte relativa al fondo, que no respetan ninguna de las garantías impuestas por el artículo 14, párrafo 1, del Pacto (párrs. 9.7 y ss.). En cuanto a la falta de fundamento, el Comité ignora las alegaciones fundamentadas relativas a la inseguridad de la familia del autor, reconocidas en múltiples ocasiones por la Comisión Interamericana de Derechos Humanos, que ha formulado numerosas medidas cautelares a su favor, y por la misión internacional independiente de determinación de los hechos⁴². Estos elementos fueron aportados por el autor al Comité, que decidió, sin justificarlo, descartarlos. Sin embargo, teniendo en cuenta el contexto del caso —la represión de los opositores políticos y de sus familiares y abogados⁴³ y las deficiencias crónicas de la justicia señaladas por el Comité—, este Comité debería haber concluido la admisibilidad con arreglo al artículo 7 respecto a la familia y haber constatado la violación de este artículo por parte de la República Bolivariana de Venezuela.

42. Ibid., párrs. 400 y ss. ↩
43. Calificados, cabe recordar, como crímenes de lesa humanidad por la misión internacional independiente de determinación de los hechos y actualmente examinados por la Corte Penal Internacional en la causa relativa a la Situación en Venezuela I. ↩

De manera igualmente incoherente y artificial, el Comité decide rechazar las denuncias del autor en su propio nombre, basándose en los artículos 7 (malos tratos, párrs. 8.11 a 8.13) y 10 (régimen penitenciario, párr. 8.14). Esta parte de la decisión no solo es factualmente y jurídicamente incorrecta, sino también sumamente peligrosa.

En cuanto al régimen de sanciones disciplinarias y al aislamiento durante más de nueve meses denunciados por el autor (art. 10), el Comité hace suyas las conclusiones del Estado Parte según las cuales, dado que el autor infringió el reglamento penitenciario al publicar mensajes en las redes sociales, la sanción estaba justificada y, por lo tanto, las alegaciones carecen de fundamento. El Comité añade que el autor no ha interpuesto recurso alguno contra estas sanciones. Más allá del carácter puramente formalista de este último punto —una vez más, contradicho por la continuación de la decisión del Comité, que señala los defectos estructurales de la justicia interna—, esta posición del Comité contradice de manera directa y sin justificación la conclusión del Grupo de Trabajo sobre la Detención Arbitraria relativa al mismo autor por los mismos hechos, que había estimado que, entre otros elementos, el mantenimiento en régimen de aislamiento del autor constituía una violación grave de los artículos 9 y 14 del Pacto⁴⁴. Es cierto que el Grupo de Trabajo no menciona el artículo 10 del Pacto, ya que su mandato se centra en la detención, pero el hecho es que, para el Grupo de Trabajo, el aislamiento debe situarse en el contexto de las demás violaciones sufridas por el autor y no puede ser justificado por las autoridades por el simple motivo, como acepta el Comité, de que el autor haya ejercido su libertad de expresión.

44. Grupo de Trabajo sobre la Detención Arbitraria, opinión núm. 26/2014, párr. 59. ↩

Aún más problemática es la conclusión del Comité sobre el artículo 7 en relación con las condiciones de detención del autor y los malos tratos que habría sufrido (párr. 8.11). Como se ha indicado anteriormente, estas alegaciones detalladas en la denuncia están ampliamente respaldadas por la Comisión Interamericana de Derechos Humanos y en las conclusiones de la misión internacional independiente de determinación de los hechos. En sus conclusiones detalladas, publicadas en 2020, la misión señala, por ejemplo, que, además del aislamiento, la brutalidad y la intimidación, ha recibido pruebas suficientes para establecer que, al menos en una ocasión, los funcionarios de la prisión supuestamente arrojaron excrementos y orina en la celda del Sr. López Mendoza. Ninguna de estas denuncias fue atendida por las diferentes autoridades⁴⁵.

45. Documento de sesión con las conclusiones detalladas de la misión internacional independiente de determinación de los hechos sobre la República Bolivariana de Venezuela, párr. 399. ↩

Al optar por dar prioridad —sin motivarlo— a la argumentación del Estado Parte en detrimento de las alegaciones fundamentadas del autor, y respaldadas por varias decisiones e informes internacionales, el Comité adopta, en este dictamen, una posición difícilmente comprensible y sostenible: por un lado, afirma que el derecho a la libertad de expresión de los opositores políticos a un régimen no democrático debe protegerse, pero, por otro, deja vía libre al Estado para aislar a dichos opositores, maltratarlos y privarlos de la protección de la ley.

Presento esta declaración de voto parcialmente concurrente en relación con las conclusiones del Comité en su dictamen respecto de la comunicación núm. 3053/2017. Valoro el reconocimiento de violaciones a los artículos 9, 14, párrafos 1 y 2, 19 y 25 del Pacto en perjuicio del autor.

A pesar de que se acepta que la orden de aprehensión del autor no parece estar justificada y pudo incluso haber sido dictada “para frenar su disidencia política” (párr. 9.6), no se ordena la puesta en libertad solicitada por el autor (y ni siquiera se hace referencia a ella). El Sr. López Mendoza se encuentra en España sujeto al trámite de una solicitud de extradición formulada por el Estado Parte.

A pesar de que el Comité considera que se violó el artículo 25 del Pacto en relación con los derechos políticos del autor, no se ordena la restitución de dichos derechos políticos, tal y como solicitó el autor. El dictamen ni siquiera se refiere a ello.

El dictamen hace caso omiso de la petición de investigar, juzgar y sancionar a los responsables de las graves violaciones a los derechos humanos que se constatan en el expediente.

Considero errado en grado muy importante el haber concluido que las alegaciones de tortura física y psicológica en perjuicio de autor “no han sido suficientemente fundamentadas” y por lo tanto se declara inadmisible esa petición. Abundante ha sido la mención de torturas de ambos tipos relacionadas con las condiciones de detención: la sanción que se impuso al autor por haber publicado y distribuido información sobre las condiciones de la prisión, admitida por el Estado Parte (párr. 6.16); la privación de luz natural de que fue objeto a lo largo de cuatro meses; los lanzamientos frecuentes de orines y excrementos sobre su cuerpo y su entorno; la perturbación del sueño en las noches previas a audiencias judiciales, y las amenazas de muerte específicamente recibidas. Lo anterior debe añadirse a la tortura psicológica que para el autor significó el vejamen repetitivo al que era expuesta su esposa cuando le visitaba en el presidio, que incluía el tener que quitarse las ropas y ser sometida a requisas profundas incluso en su intimidad corporal, hechos todos ellos que no fueron desmentidos por el Estado Parte.

Igualmente alejada de la realidad fáctica es la conclusión del Comité en el sentido de que el hecho de que el autor haya sido mantenido en aislamiento solitario por más de 9 de los 40 meses que estuvo detenido no fundamenta suficientemente la violación del artículo 10 del Pacto (tratamiento inhumano y degradante en prisión). En el dictamen se da crédito más bien a la explicación del Estado Parte de que las continuas sanciones de aislamiento respondían a la conducta del autor por evidenciar precisamente condiciones inhumanas del centro de detención, como tener teléfonos celulares, hacer grabaciones y publicaciones en Twitter de dichas condiciones y desarrollar conductas típicas de quienes ejercen otros derechos civiles y políticos, tales como tenencia de teléfonos celulares, proselitismo político o envío de correspondencia en forma clandestina y, en general, por haber alterado el orden del centro (estableció la costumbre de que todos los días, al caer la noche, los detenidos se asomaran a sus puertas a gritar consignas —políticas, por supuesto—, en coro y a viva voz).

En resumen, el dictamen, por sus serias falencias, se encuentra muy lejos de constituir una reparación integral, como lo exige el procedimiento en caso de violaciones constatadas. Esas limitaciones impiden que este caso sea un ejemplo de verdadera justicia y reparación integral.

Concordamos plenamente con la conclusión del Comité de que los hechos examinados en el presente caso ponen de manifiesto una violación por el Estado Parte de los artículos 9, 14, párrafos 1 y 2, 19 y 25 del Pacto. Sin embargo, tenemos una observación respecto de la forma en que se resolvió la situación relativa a una violación de la libertad de expresión del autor, particularmente en el párrafo 9.4 del dictamen.

Al respecto, el Comité sostiene que no se ha establecido una conexión directa e inmediata entre las declaraciones públicas del autor y los resultados lesivos que se produjeron el 12 de febrero de 2014, y refuerza su posición aludiendo a las conclusiones contenidas en el informe del Grupo de Trabajo sobre la Detención Arbitraria de 2014, en el cual se indicaba que el Gobierno del Estado Parte no precisó en qué medida el discurso del Sr. López Mendoza pudo dar lugar a los incendios y daños de que se le acusa, agregando que no había elementos que permitieran concluir una relación de causa a efecto entre la convocatoria a una manifestación política, el discurso pronunciado durante la misma y los resultados de muertos, heridos y daños materiales que se produjeron al margen de dicha concentración, que, por otra parte, ya había concluido⁴⁶. Y como elemento adicional se señala en el dictamen que “esta conclusión se refuerza por el hecho de que los tribunales han parcialmente basado sus conclusiones en declaraciones posteriores a los eventos o en el uso de estadísticas que no ofrecen una prueba concreta e individualizada de la amenaza a la seguridad nacional en los términos del artículo 19, párrafo 3”.

46. Grupo de Trabajo sobre la Detención Arbitraria, opinión núm. 26/2014, párrs. 52 y 54. ↩

Lo que nos preocupa de este razonamiento es que el Comité se refiere a decisiones de los tribunales del Estado Parte y, concretamente, a elementos probatorios al sostener que “los tribunales han parcialmente basado sus conclusiones en declaraciones posteriores a los eventos o en el uso de estadísticas que no ofrecen una prueba concreta e individualizada”. Como muestra la reiterada jurisprudencia del Comité, la valoración de hechos y pruebas o la interpretación de la legislación son cuestiones que corresponden, en principio, a los tribunales nacionales, a menos que sean manifiestamente arbitrarias o constituyan una denegación de justicia⁴⁷, cuestión que no se aborda en el dictamen. Sin embargo, la afirmación que hace el Comité sobre las conclusiones de los tribunales del Estado Parte podría tácitamente apuntar a que estos hicieron una valoración de pruebas manifiestamente arbitraria, asunto que no formó parte de la discusión de este caso. En consecuencia, nos parece que la frase citada no debió haberse incluido como parte del razonamiento del Comité en el párrafo 9.4 del dictamen.

47. Véase Simms c. Jamaica (CCPR/C/53/D/541/1993). ↩