The Judiciary made two decisions last week that criticized the investigations carried out by the Public Ministry in relation to the deaths of two prisoners, who were being investigated for being allegedly involved in conspiracies against the government of President Nicolás Maduro.
On Thursday, October 8, the 29th Court of Trial of Caracas decreed the absolute nullity of the conclusive act of accusation presented by the Public Ministry to request the prosecution of two agents of the Bolivarian National Intelligence Service (Sebin), indicated as responsible for the death of the former councilor of Primero Justicia, Fernando Albán.
In this case, the defendants are Inspector Miguel David Dos Santos Rodríguez (29) and Detective Keyberth José Cirelli Moreno (30), accused of breach of custody obligations, a crime punishable from 15 days to six months, according to article 267 of the Penal Code.
According to the investigation by the Prosecutor's Office, Albán was on the 10th floor of the Sebin-Plaza Venezuela at lunchtime when he asked to go to the bathroom. "At that moment, he ran towards a panoramic window located three meters from the toilet and threw himself into the void", a situation that caused his death on October 8, 2018, according to the prosecution's indictment.
For the 29th Court of Trial, this accusation by the Public Ministry violated Article 49 of the Constitution, numeral 1, which establishes that everyone has the right to be notified of the charges for which they are being investigated. "They will be null and void obtained by violation of due process," adds the aforementioned constitutional article, which was violated by the Prosecutor's Office at the time of investigating Albán's death. Therefore, he ordered the Prosecutor's Office to present a new investigation condensed into a conclusive act.
Albán was arrested on October 5, 2019 for his alleged connection to the attempted assassination perpetrated against President Maduro on August 4, 2018 on Bolívar Avenue in Caracas during the celebration of the 81st anniversary of the Bolivarian National Guard.
The second death investigated by the Prosecutor's Office and criticized by the Judiciary is that of Captain Rafael Ramón Acosta Arévalo. This soldier in active reserve was being investigated for his alleged connection to a conspiratorial movement aimed at the overthrow by assassination of President Maduro, according to videos released by the then Minister of Communication, Jorge Rodríguez.
Because of this, Acosta Arévalo was arrested on June 26, 2019 at a bus stop located near the Buenaventura Shopping Center, via Guatire-Guarenas (Mir). The soldier was detained in the General Directorate of Military Counterintelligence (Dgcim) located in Boleíta, Sucre municipality (Mir). From there he was transported on June 28 to the Caracas 3rd Military Control Tribunal located in Fort Tiuna. In front of the judge, he fainted, which warranted his transfer to the “Vicente Salias” military hospital where he was admitted without vital signs, according to the investigations.
The two officials who captured the captain were prosecuted for the crime of pre-intentional homicide with cause, death caused by injuries, but with circumstances unknown to the attacker, according to article 410 of the Penal Code. The record prepared by the Dgcim indicates that Acosta Arévalo "died moments before his presentation hearing in the military courts." For this homicide, the 36th Control Court of Caracas sentenced the Dgcim Ascanio Antonio Tarascio Mejía and Estiben José Zárate Soto to six years and eight months in prison.
A year after that decision, the Criminal Chamber of the Supreme Court of Justice, devoted itself to the knowledge of that file, according to sentence No. 85 drawn up by magistrate Maikel Moreno. And on October 9, the magistrates issued a decision similar to the one taken in relation to the death of former councilor Fernando Albán. On this occasion, the Criminal Chamber decreed the absolute nullity of the accusation presented on September 3, 2020, by the lawyers Yosefin Bravo Carrillo, Albis Arroyo Guzmán, provisional and auxiliary prosecutors 34 ° national, against the defendants Tarascio and Zárate, as well as all the procedural acts subsequent to the presentation of said conclusive act, including the sentence of six years in prison. Consequently, the Criminal Chamber gave the Public Ministry 30 days to present a new conclusive act, that is, a new investigation, "regardless of the defects observed, ensuring the protection of the rights and constitutional guarantees of all parties ”.
What are these vices observed by the Criminal Chamber? In this regard, the magistrates indicated that "actions were carried out that violate the right to defense, due process, effective judicial protection, and the rights of the crime victim." And they add that that accusatory brief by which the Prosecutor's Office requested to prosecute the two Dgcim agents "suffers from the fundamental requirements demanded by article 328 of the Organic Code of Criminal Procedure, which are the necessary assumptions to activate the contradictory and concentrated trial, and it contains the bases on which the sentence will be built ”.
The Criminal Chamber warned that the narrative of the events set forth in the accusation prepared by prosecutors Bravo and Arroyo is "confusing, contradictory, imprecise and discordant." They point out that an accusation without the basis required by law will result in a failed claim by the prosecutor of the Public Ministry.
The magistrates also turned their gaze to the 36th Court of Control of Caracas and assigned it part of the responsibility for the vices observed during the prosecution's investigation. In this regard, the Chamber said that this Court should "exercise material and formal control of the accusation" during the preliminary hearing held on September 24, 2019. They also point out to the aforementioned Court that it did not guarantee the summons of attorney Alonso Medina Roa, representative of the family of Captain Acosta Arévalo. "With said action, the aforementioned court violated the rights of the victim," the magistrates stated.
All these irregularities were classified by the Criminal Chamber as "serious violations of the constitutional and legal order" that led them to advocate the file. The magistrates drew up a paragraph in the sentence to establish that this instance, “is the guarantor of the faithful compliance of Human Rights, which the Bolivarian Republic of Venezuela has signed in the International Pacts and Agreements in relation to the fruitless function of the officials who are entrusted with the surveillance of those deprived of liberty ”. The Chamber emphasized that “the Venezuelan State is committed to sanctioning the perpetrators, accomplices in the commission of illegal acts, within its jurisdiction; as well as the taking of measures to avoid impunity and violation of Human Rights ”.
Corker and Bachelet.
The deaths of Fernando Albán and Rafael Acosta Arévalo occurred at a time when Venezuela was scrutinized by international bodies. The day Albán died, Senator Bod Corker, president of the United States Senate Foreign Relations Committee, was in Caracas, who had held meetings with President Nicolás Maduro and opposition leaders in a mediation task.
"The government has a responsibility to ensure that everyone understands how it could have happened," Corker said on his Twitter account when commenting on Albán's death.
The senator met Maduro when he was a deputy and part of the Venezuela-United States Parliamentary Friendship Group, between 2000-2005. That instance is known as the Boston Group and has had a relaunch in the last two years. The then deputies Calixto Ortega and Rafael Lacava belonged to him at the time, who currently hold positions of magistrate of the Supreme Court of Justice one and governor of Carabobo the other.
Meanwhile, the death of Acosta Arévalo occurred six days after the United Nations High Commissioner for Human Rights, Michel Bachelet, had been in Venezuela, who met with President Maduro and other heads of public powers, including Deputy Juan Guaidó (Will Popular), president of the National Assembly. As a result of that visit, the High Commissioner installed a delegation in Venezuela.