On February 3, 1997 the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received a petition dated January 30,
1997 regarding the alleged violation by the Republic of Venezuela
(hereinafter “Venezuela” or “the State”) of rights protected in
the American Convention on Human Rights (hereinafter “the Convention”)
to the detriment of Mr. Braulio Jatar Alonso (hereinafter “the
petitioner”). Mr. Braulio
Jatar Alonso was indicted for the crimes of extortion and attempted
peddling of influences by a
public official, as a result of events that occurred while he was ad
honorem advisor to the Chair of the Oversight Committee (Comisión
de Contraloría) of the Chamber of Deputies of Venezuela.
The Superior Tribunal for the Protection of Public Assets sentenced
Mr. Jatar Alonso, in his condition as a public official, to three and a
half years in prison for extortion and acquitted him of the charge of
attempted peddling of
influences by a
public official. Mr. Jatar
filed an appeal and the Tribunal pronounced a judgment in which it reduced
the sentence to three years in prison.
Mr. Jatar then filed an appeal for protection ("amparo"),
which was disallowed and on January 31,
1995, the Tribunal ordered execution of the sentence and declared Mr.
Jatar a fugitive of justice abroad. On December 29, 1998, Mr. Jatar
communicated to the Commission his decision to give himself up to the
Venezuelan authorities as part of an agreement with the Venezuelan
Ministry of Justice under which he would be granted a presidential pardon.
On December 30, 1998 he was granted a presidential pardon on
In particular the petition alleges violation by the Venezuelan
State of Articles 8 (Right to a Fair Trial); 11 (Right to Privacy); 24
(Right to Equal Protection); and 25 (Right to Judicial Protection) in
connection with Articles 1(1) and 2 of the American Convention, to the
detriment of Mr. Braulio Jatar Alonso.
The petitioner lodged his petition on February 3, 1997.
The Commission began to process the petition on February 18, 1997.
The State presented its reply in which it argued that the petition
was inadmissible in accordance with Articles 46(1)(b) of the Convention
and 38(1) of the Commission Regulations, inasmuch as the petition was
lodged after the deadline for presentation and that none of the allegedly
violated rights had been infringed by the State.
From its analysis of the admissibility requirements, the Commission
finds the petition inadmissible in accordance with Article 47(a) of the
American Convention, and Article 37 of its Regulations.
PROCESSING BY THE COMMISSION
On February 18, 1997 the Commission began to process the case and
requested the State for information on the facts alleged by the
petitioner. On August 18,
1997, the State requested the Commission to grant it an extension under
Article 34(5) of the Commission Regulations (hereinafter “the
Regulations”) and on September 10, 1997 presented its reply dated
September 5 of that year, in which it held that the petition was
inadmissible pursuant to Articles 46(1)(b) of the Convention and Article
38(1) of the Regulations. The
petitioner submitted comments to the State’s reply and the Commission
later received information from both parties.
The Commission received the petitioner’s comments together with
supplementary information on September 27, 1997; February 23, July 8,
August 3, December 1, and December 17, 1998; and on February 5, April 30,
September 9, and November 1, 1999; and October 17, 2000.
The State presented its comments on January 26, April 21, and
October 13, 1998; and on March 11, September 20, and October 23, 1999; and
August 24, 2000.
On September 7, 2000, Mr. Braulio Jatar presented a brief dated
September 1 of that year, in which he informs the Commission that he has
instituted a “domestic legal proceeding for review of the illegal and
arbitrary judgment pronounced by the now-abolished Superior Tribunal for
the Protection of Public Assets in the Republic of Venezuela” and
requested “a stay of the instant proceeding until a final decision had
been rendered on [his] new petition before the new criminal courts in
pursuance of the procedure provided in Articles 463 et
seq. of the new Organic Code of Criminal Procedure.”
POSITIONS OF THE PARTIES
The petitioner alleges that between 1989 and 1990, while serving as
ad honorem advisor to the Chair
of the Oversight Committee of the Chamber of Deputies of Venezuela and in
the course of practicing his profession as an attorney-at-law, he attended
a private meeting in the State of Florida with a prospective client by the
name of Lamaletto in the company of his partner, Dr. Aurelio Fernández
Cocheso. A video was filmed
of that meeting allegedly showing a discussion over the fee to be paid to
Messrs. Jatar Alonso and Fernández Cocheso for the services required by
the prospective client.
The petitioner says that, to his surprise, upon his return to
Venezuela the contents of that video were released and he was brought upon
criminal charges as a result of persecution by “powerful political
figures,” who had been the subject of investigations conducted by him in
the course of carrying out his work of examining complaints of corruption
as part of his duties as ad honorem
advisor. The foregoing resulted in his prosecution in Venezuela (for acts
that occurred abroad) as a public official and in accordance with the
Organic Law on Protection of Public Assets for several offenses against
the res publica, one such being
the crime of extortion.
The petitioner claims that violations of due process occurred
during the proceeding, which led to his conviction based on a recording
made abroad without his consent and on the testimony of two persons with
an interest in the outcome of the trial. He says that his right to equal
protection was violated, as was his right to be assisted by legal counsel,
and he adds that he is afraid to be in a Venezuelan prison due to the
The petitioner underscores that Mr. Fernández, who likewise was
serving as ad honorem advisor,
was also at the meeting that resulted in his later prosecution. The
petitioner says that no charges whatsoever were brought against the
latter, nor was he prosecuted for the same crimes as Mr. Jatar.
In connection with the foregoing, the petitioner claims that he was
tried without due guarantees by a tribunal that lacked legal competence.
He was attributed the condition of a public official, a position
which he did not hold since he was an ad
honorem advisor and was neither appointed, nor took an oath at any
time as a public official. Despite that, he was tried by the Superior
Tribunal for the Protection of Public Assets in a proceeding that
characterized the lack of independence and impartiality of the Venezuelan
courts, which lack a simple and prompt recourse “designed to protect
people against acts that violate their human rights and which enable those
rights to be restored.” Furthermore,
Venezuela was arbitrarily imposed on him as the venue for his trial, when
the correct procedure would have been for him to be investigated in the
United States because that is where the events took place.
The petitioner alleges that the State violated his right to have
his honor and reputation respected as a result of being morally
discredited, and adds that the State of Venezuela violated his right to
equal protection of the law, as reflected by the fact that the petitioner
was the only one prosecuted and convicted for the denounced acts.
The petitioner says that he lodged his petition in a timely manner
and that he first addressed the Commission on July 31, 1996, on which
occasion his petition was not processed for failure to meet the necessary
requirements. On January 30, 1997 he presented a brief that “ratified,
amended, and complemented” the information contained in his original
petition. He adds that the
record shows that on January 8, 1997 he addressed the Commission and
mentioned the “sudden appearance of a Supreme Court decision that
disallowed” his amparo
application and was “supposedly
delivered on May 23, 1996.”
Finally, the petitioner holds that the reply of the Government of
Venezuela “missed the deadline for presentation, even with all the
legally permitted extensions being granted” given that the State was
notified on February 18, 1997, and the deadline for presentation of its
reply was August 18, 1997. Based
on the foregoing, the petitioner requests that the State be found in
The State requests that the petition be found inadmissible on
grounds that it was lodged after the deadline for presentation, the
violations alleged do not exist, and it does not state the true facts.
The State argues that the petition is inadmissible because it was
submitted to the Commission for consideration later than six months after
the petitioner was notified of the final judgment of the Superior Tribunal
for the Protection of Public Assets, which convicted the petitioner of the
crime of extortion. The State says that it has not interfered with nor
obstructed the petitioner’s access to the remedies under international
law and that, on the contrary, the petitioner has been at full liberty to
seek them but in the instant case has missed the deadline for doing so.
The State says that the petitioner “has been tried in an
absolutely normal proceeding conducted with respect for the guarantee of
due process,” which began with a “noticia criminis”, after which an order to proceed was issued in
accordance with the provisions contained in the Code of Criminal
Procedure, and the necessary investigations were held, at which the
petitioner was present in order to testify voluntarily.
The State adds that initially a warrant was issued for the arrest
of the petitioner for the crimes of attempted extortion, unlawful use of
information and attempted peddling of influences by a public official,
which are crimes recognized in and punished by the Organic Law on
Protection of Public Assets, in accordance with the Criminal Code and the
Code of Criminal Procedure. The petitioner appealed the arrest warrant and
the Superior Tribunal for the Protection of Public Assets withdrew the
warrant for the crime of [unlawful] use of confidential information but
maintained it on all other counts.
The State says that an indictment was filed for the crimes of
extortion and peddling of influences by a public official and that the
petitioner submitted a written reply to those charges at a public hearing
of the accused, which was “postponed on various occasions […] due to
the failure on the part of the counsel for the defense to attend that
proceeding.” The State adds
that during the trial the petitioner’s defense attorney formally recused
the judge presiding over the case and the record was referred to another
bench, which “pronounced judgment sentencing citizen Braulio Jatar to
serve a term of three and a half years in prison for the crimes of
Extortion and Peddling of influences by a public official”.
The State says that the conviction was appealed and subsequently
the court sentenced the petitioner to serve a term of three years in
prison “for being guilty of the crime of extortion […] and acquitted
citizen Braulio Jatar of the charges brought by the representative of the
Attorney General’s office with respect to the crime of attempted
peddling of influences by a public official.”
The petitioner did not exercise his right to appeal the decision to
the court of cassation, for which reason the decision was final and the
court ordered its execution. Based
on the foregoing, the State holds that the trial of the petitioner was
conducted in an “absolutely normal” manner and in accordance with
As to the Tribunal’s lacking legal competence, the State says
that the petitioner should have indicated his disagreement with the
conviction by filing an appeal with the court of cassation and not with an
international instance, such as the Commission. The State further adds
that if the courts had been biased and took their orders from the
Executive Branch the petitioner would have been convicted of the three
crimes for which the first arrest warrant was issued or for the maximum
terms possible for the crimes with which the Office of the Attorney
General charged him. The
State adds that the petitioner claims to disagree with the judgment but
did not exercise his right of appeal to the court of cassation; instead
his lawyers accepted the judgment and the petitioner found himself a
fugitive of justice abroad.
The State says that Venezuelan criminal procedure provides remedies
designed to correct all procedural irregularities, in order to ensure
equal rights and powers for the parties, and to ensure full exercise of
the right of defense in the proceeding. If the petitioner considered that
any of his rights had been impaired he should have pursued the legal
remedy the law provides in order to seek redress for the act he regarded
as injurious. The petitioner also had the possibility to file an
accusation against the judge presiding over the case if he considered that
that person originated the violation of his right to equal protection.
As to the right of defense, the State says that the petitioner was
duly represented by several attorneys who defended him at every stage and
level of the criminal process. The State points out that the remedy of amparo
exists in Venezuela, that is a prompt, brief and effective remedy for
protection of fundamental rights which enables immediate redress of
infringed interests protected by law, and that all persons have recourse
to it in accordance with the Constitution and the Organic Law on
Protection of Constitutional Rights and Guarantees.
The state argues that a criminal investigation for allegedly
committing a punishable act does not constitute a violation of the right
to have one’s honor and reputation respected, since it is possible to
exercise one’s right of defense and, in the case of the petitioner, the
judgment that found him guilty of the crime of extortion was accepted.
The State further mentions that the petitioner expresses his
disagreement because citizen Aurelio Fernández Concheso was not convicted
and, for that reason, considers that his right to equal protection was
violated. The State argues that the fact that a warrant was not issued for
the arrest of Mr. Fernández “is not due to a violation of the right to
equal protection of the law, but to having found no irregularity that
merited a criminal investigation of him.”
Competence of the Commission and formal admissibility requirements
The petitioner claims that the State has violated his rights under
Articles 1(1), 2, 8, 11, 24 and 25 of the American Convention.
The State ratified the American Convention on Human Rights on
August 9, 1977. The events
connected with the complaints before the Commission occurred after the
State ratified the American Convention. The
petition was lodged with the Commission by Mr. Braulio Jatar Alonso, who
has legal competence to do so in accordance with Article 44 of the
American Convention. On that
basis, the Commission is competent to take up the instant petition under
Article 44 of the American Convention and Articles 18 and 19 of its
Requirements for the admissibility of the petition
The Commission analyzes below the admissibility requirement for the
petition set down in Article 46(1)(a) of the Convention, which requires
that the remedies under domestic law shall have been pursued and exhausted
in accordance with generally recognized principles of international law,
as regards the duty of the State to provide suitable and effective
domestic remedies in order to redress violations of human rights; and, as
a counterpart thereto, the obligation of the alleged victim to exhaust the
remedies under domestic law.
In the instant case the petitioner has argued that the remedies
under Venezuelan law were duly exhausted in accordance with the
requirements set down in the American Convention for lodging a case with
the Commission. The State,
for its part, holds that the remedy of amparo
sought by the alleged victim was not the suitable recourse for impugning
the decision of the Superior Tribunal for the Protection of Public Assets,
given that Article 6(5) of the Organic Law on Protection of Constitutional
Rights and Guarantees provides that amparo
is not admissible when the appellant has sought remedies under the general
jurisdiction, as is the case of appeal, and that in the instant case the
appropriate remedy was an appeal to the court of cassation and not amparo.
The Commission finds that the petitioner himself addressed it on
September 7, 2000, in a written communication dated September 1 of that
year, requesting a suspension of proceedings in the instant case before
the Inter-American Commission because a new domestic legal proceeding for
review of judgment was pending in Venezuela.
In connection with the foregoing, the Commission has held that the
international protection afforded by the supervisory bodies of the
Convention is of a subsidiary, reinforcing, and complementary nature. The
Preamble to the Convention refers to its nature as a mechanism for
reinforcing or complementing the protection provided by
the domestic law of the American states. It cannot, therefore, be
assumed that the Commission is an instance that may review disputes over
alleged violations that have not been taken up and exhausted by the
domestic courts or, by the same token, which are pending a decision in the
For the foregoing reasons and in light of the last communication
from the petitioner to the Commission, in
casu, the Inter-American Commission says that it has on previous
occasions found on the inadmissibility of petitions lodged without meeting
the requirement of prior exhaustion of domestic remedies and, accordingly,
concludes that it lacks competence to take cognizance of the instant case.
Based on the foregoing, the Commission abstains, since the matter
is rendered moot, from examining the other admissibility requirements
provided in the Convention.
The Commission has found that the petition does not meet the
requirement provided in Article 46(1)(a) of the American Convention and
that the information advanced by the parties does not make it possible to
apply the exceptions provided for in Article 46(2) thereof.
In consequence, the Commission concludes that the petition is
inadmissible in accordance with Article 47(a) of the Convention.
Based on the preceding factual and legal arguments,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare the
instant case inadmissible.
2. To notify the
petitioner and the State of this decision; and
3. To publish this
decision and to include it in its Annual Report to the OAS General
Done and signed in Washington, D.C., on the 19th day of the month of October, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman, Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo, Commissioners.
Article 196 of the Venezuelan Criminal Code provides in connection
with the crime of extortion (Title III, Offenses against the res
publica, Chapter II, Extortion) that:
any public official who, abusing his position, compels someone to give or to promise either to the official himself or to a third party a sum of money or benefit or bribe, shall be sentenced to eighteen months to five years in prison. If the sum of money or bribe given or promised is of minor value, the term of imprisonment shall be from three to twenty-one months.
The petitioner makes reference to Article 4 (1) and (2) of the
Venezuelan Criminal Code, which provides:
following are liable to prosecution in Venezuela and shall be punished
in accordance with Venezuelan criminal law:
Venezuelans in a foreign country who are accused of treason
against the Republic and those who commit acts against other
Venezuelans that are punishable under that country’s laws.
Foreign subjects or citizens, who commit a crime in a foreign
country against the security of the Republic or against a national
both cases it is required that the criminal suspect have entered the
territory of the Republic and a complaint filed against him by the
injured party, or by the Office of the Attorney General in cases of
treason or an offense against the security of Venezuela.
They say that in the instant case, on July 29, 1994, the court of
first instance pronounced judgment against which the petitioner
appealed; A decision was issued on that appeal by the Superior
Tribunal for the Protection of Public Assets on January 31, 1995, and
on March 1, 1995, Mr. Jatar filed an appeal of amparo
for protection of his constitutional rights with the Venezuela Court
of Cassation in criminal matters.
In respect of this point it should be mentioned that at the time of
ratifying the American Convention Venezuela made a reservation as
regards Article 8(1), insofar as Article 60(5) of the Constitution of
the Republic of Venezuela establishes that persons accused of an
offense against the res publica
may be tried in absentia,
with the guarantees and in the manner prescribed by law. Such a
possibility is not provided for in the aforementioned Article 8.
With the exceptions provided in Article 46(2) of the American
Article 6 of the Organic Law on Protection of Constitutional Rights
and Guarantees, provides that:
action of amparo shall not be admitted:
When the injured party has opted to seek redress in the general
jurisdiction or made use of preexisting judicial means …
See: Resolution 29/88, Case No. 9260, Jamaica, September 14, 1988;
Report No. 39/96,
Case No. 11.673, Argentina, October 15,
1996; and Report No. 88/99, Case No. 12.013, Paraguay, September 27,
 In this regard see, inter alia, Report 73/99, Case No. 11.701, Mexico, May 4, 1999; Report 24/99, Case No. 11.812, Mexico, March 9, 1999; and Report 82/98, Case No. 11.703, Venezuela, September 28, 1998.