Washington College of Law|
Center For Human Rights and Humanitarian Law
RESOLUTION No 2/84
Case No 9058 (VENEZUELA)
May 17, 1984
- On October 6, 1976, a "Compañía Cubana de Aviación"
aircraft took off from Barbados, Lesser Antilles, for Cuba, carrying
70 persons, including passengers and crew. Most of the passengers
The aircraft disintegrated in flight, killing all aboard. The
tragedy was attributed to an explosive device placed on board for
Following various investigations, Orlando Bosch, Luis Posada,
Hernán Ricardo Lozano, and Freddy Lugo were apprehended and charged
before Venezuelan courts with planning and executing the terrorist
- On February 15, 1983, the Inter-American Commission on
Human Rights received a note that made the following complaint:
In October 1976, the Office of the Attorney General of
Venezuela, during the Administration of President Carlos Andrés
Pérez, ruled that Orlando Bosch, Freddy Lugo, Hernán Ricardo
Lozano, and Luis Posada, indicted in the case of the Cuban
Airliner should be brought to trial in the Ordinary Courts.
Thus, on November 1, 1976, the Attorney General's Office
delivered the bonds to the Judge in First Instance of the
Criminal Court, Dr. Delia Estaba Moreno.
In August 1977, Dr. Delia Estaba decided that this case was not
within her competence, and referred it together with the
records, to the Military Courts, specifically to the First
Military Court of First Instance.
On September 27, 1977, the Military Prosecutor petitioned for
the dismissal of the charges against the four indicted men,
because "the innocence of the four accused has been credibly
proven" (in the words of the Prosecutor). The War Council
endorsed the Prosecutor's judgment and ruled that the charges
be dismissed. The War Council's judgment covers 865 pages.
The Permanent War Council of Caracas referred the case and the
records to the Court Martial for consultation.
Since the case has been pending in the Court Martial there have
been three prosecutors; each time a new prosecutor is appointed,
he must study the record to form his own judgment and,
therefore, the case is delayed. The most recent removal of a
prosecutor was in December of last year.
We will simply state that the detainees have been living for six
years and four months with this case pending, and two years and
four months after having been acquitted of the charges by the
Permanent War Council of Caracas.
- Through a note dated February 17 of the same year, the
Commission forwarded to the Government of Venezuela the pertinent
parts of the denunciation, and requested the corresponding
information. It explained that the request did not entail a
prejudgment of the admissibility of the denunciation.
- The IACHR subsequently received other letters on the same
charges. Some of them contained newspaper clippings from various
papers, giving accounts of the situation of the men. Even before
that, the Commission had received a similar complaint referring
solely to the situation of Dr. Orlando Bosch. The pertinent parts
of these communications were forwarded to the Venezuelan Government
by a note dated August 25, 1982, with regard to Case 8043, which,
because it concerns the same individuals and refers to the same
violation, was merged with this case.
- On March 22, 1983, the Commission received further
information from the complainants, reporting that Dr. Orlando Bosch,
detained at the San Carlos Garrison, in Caracas, Venezuela, had gone
on an indefinite hunger strike on Wednesday, March 16, 1983, to
protest the fact that the Court Martial had allowed more than two and
a half years to elapse without making a decision on the verdict of
dismissal of charges handed down in his favor by the War Council.
It was stated that Dr. Orlando Bosch's state of health was critical,
because of his hunger strike, and that he had been denied visits by
his family, and particularly his wife, Adriana, as well as his
personal physician and his friends.
The complainants asserted that the San Carlos Garrison did not
have adequate services for anyone suffering from the debilitation
that Dr. Bosch was experiencing, which could bring out his death, and
they, therefore, requested his transfer to the Military Hospital.
The complainants reiterated in this letter that the human rights of
Dr. Bosch and the others involved in the case were being violated
with their protracted imprisonment and the drawn proceedings, even
after they had been found innocent and the Prosecutor had withdrawn
the charges. They asked the IACHR to take the precautionary measures
necessary to protect the health and safeguard the life of Dr. Orlando
Bosch, and that the Commission request that respect be shown for due
process and an early date be set for the Court Martial to hear this
- The pertinent parts of this communication were sent to the
Government of Venezuela in a note dated April 7, 1983, with the
request that the appropriate steps be taken.
- Subsequently, petitions in the same sense from groups of
persons and organizations concerned with the protection of human
rights were received; the pertinent portions of these were sent to
the Government of Venezuela, via a note dated April 25, 1983.
- On April 21, 1983, the Commission received a communication
from the Government of Venezuela, containing note 0436 of the Foreign
Policy Administration of the Ministry of Foreign Affairs, replying
to the request for information made by the Commission. The pertinent
In regard to this matter, the Office of the Attorney General,
in accordance with the powers vested in it by the Constitution
to ensure that the administration of justice be
carried out properly and speedily, and that the Nation's courts
apply the law correctly in penal proceedings, under
consultation, issued the following statement on the factual and
legal elements of the situation of this case. In this regard,
we report the following:
- Citizens Luis Posada Carriles, Orlando Bosch Avila, Hernán
Ricardo Lozano, and Freddy Lugo were brought to trial before the
Permanent War Council of Caracas, for the alleged crimes of
treason, murder in the second degree, forgery of documents, and
On September 26, 1980, the aforementioned Military Court decided
" ... In view of all the facts presented, this Permanent War
Council of Caracas, administering justice on behalf of the
Venezuelan State, and duly empowered by Law, CONDEMNS citizens
Hernán Ricardo Lozano and Orlando Bosch Avila, sufficiently
identified in the proceedings as having been the agents
responsible for the criminal act of USING FORGED PASSPORTS, said
offense being described in paragraph 3 of Article 327 of the
Penal Code, which is applicable in the absence of a regulatory
provision in the Code of Military Justice, and in accordance
with Article 20 of the former, each one is sentenced to a prison
term of four (4) months, twenty-two (22) days, and twelve (12)
hours, and the ancillary penalties contemplated in Article 407
of the same Code, of political disqualification for the duration
of the sentence, loss of the right to any awards and objects or
instruments with which the crime was committed; ACQUITS fully
citizens Hernán Ricardo Lozano, of the charges of TREASON,
MURDER IN THE SECOND DEGREE, POSSESSION OF WEAPONS, AND PASSPORT
FORGERY; Freddy Lugo and Luis Posada Carriles, sufficiently
identified in the proceedings, of the charges of TREASON, MURDER
IN THE SECOND DEGREE, and POSSESSION OF WEAPONS; and Orlando
Bosch Avila, of the charges of MURDER IN THE SECOND DEGREE,
POSSESSION OF WEAPONS, AND CONTEMPT OF COURT, charges brought
by the Second Military Prosecutor at the Defendant's Hearing in
this case. Let it be so recorded, let it be published, and let
the defendants be notified; let the authenticated legal copies
be issued; and let a consultation be made with the Court Martial
as to its legal appropriateness."
- This decision of the Permanent War Council of Caracas was
brought to the Court Martial, in accordance with the provisions
of Article 150 of the Code of Military Justice, which
... "Any definitive verdict of either acquittal or condemnation,
issued by the Military Judges of First Instance, shall be
routinely reviewed by the Superior Court, and such judgment may
be appealed." Consequently, the judgment of acquittal made by
the Permanent War Council of Caracas was referred to the Court
Martial for review, and the individuals under process were not
released from custody, in accordance with Article 335, paragraph
2, of the Code of Military Justice. This expressly states that
conditional freedom shall be granted:
"... When in first instance a judgment of acquittal is issued
and so long as this judgment is valid or until it is revoked,
provided that the charges were not for the offenses of treason,
espionage, rebellion, mutiny, insurrection, or any others that
carry the penalty of imprisonment."
In this connection, the judgment of acquittal of the Permanent
War Council of Caracas was issued in First Instance. However,
the release of the defendants Luis Posada Carriles, Orlando
Bosch Avila, Hernán Ricardo Lozano, and Freddy Lugo was not
warranted, since the Second Military Prosecutor, in due course,
had charged them with the crimes of treason, murder in the
second degree, and others that carry prison sentences.
- On March 24, 1983, the Court Martial declared itself
incompetent to handle the case, based on a recent ruling of the
Supreme Court of Justice, in deciding in the case of a woman
journalist, that persons must be judged by their natural judges;
it decided to send the case, consisting of 23 pieces plus the
exhibits, to the Superior Judge, XIV Criminal Court, José Erasmo
Pérez España, and to submit the conflict of competence to the
Criminal Chamber of the Supreme Court of Justice.
As may be noted from the preceding, in the case concerned, the
resources of internal jurisdiction have not been exhausted, in
accordance with the Nation's laws; therefore, the Government of
Venezuela shall keep the Inter-American Commission on Human
Righst informed of the developments in this case.
- The pertinent parts of the aforementioned communication
from the Government were forwarded to the complainants through a note
dated May 5, 1983.
- The complainants also addressed themselves to the
Inter-American Court of Human Rights, and requested the intercession
of that high Court on behalf of Dr. Orlando Bosch. The Court, by a
note that the Commission received on May 18, 1984, forwarded the note
of the complainants, as well as a note to the complainants acknowledging receipt, in which it
stated that the Court was unable to hear the complaint, under the
provision of Article 61.1 of the American Convention on Human Rights.
- The Commission studied the response of the Venezuelan
Government, and observed that in the processing of the consultation
to which, according to Venezuelan law, the verdict of absolute
acquittal of Messrs. Orlando Bosch Avila, Hernán Ricardo Lozano,
Freddy Lugo, and Luis Posada Carriles, would be subject, there had
been a delay in the administration of justice, since the verdict of
acquittal had been handed down on September 26, 1980; the Court
Martial declared its incompetence on March 24, 1983; and to date no
verdict had been reached by a competent court, to the consequent
prejudice of Messrs. Bosch, Lozano, Lugo, and Posada. The Commission
expressed its concern to the Government of Venezuela because of this
situation through a note dated September 30, 1983, sent on October
3, 1983, requesting any information that might be deemed pertinent.
- The Government of Venezuela did not reply to that
communication, for which reason the Commission once more addressed
that Government through a note dated February 8, 1984, in the
Through a note dated October 3, 1983, the Commission
expressed its concern to the Venezuelan Government due to the
fact that the mentioned persons have not been released, despite
the verdict of acquittal handed down by the Permanent War
Council of Caracas on September 26, 1980.
The Commission considered that in the case of Messrs.
Bosch, Lugo, Lozano, and Posada there had been a delay in the
administration of justice since, while it is true that in
accordance with Venezuelan law, the mentioned verdict would be
subject to a consultation with the Superior Court, as of the
date of the aforementioned note (three years after the verdict
of acquittal), the competent appellate court has failed to
produce a decision to define the situation of the mentioned
To date, the Commission has not received a reply to its
note of October 3, 1983, nor does it have any knowledge as to
whether the competent court that is handling the consultation
has pronounced itself.
In view of the preceding and of the fact that Messrs.
Bosch, Lugo, Lozano, Ricardo, and Posada continue to be held,
the IACHR has instructed me to address Your Excellency's
distinguished Government to request that it provide us with all
the information that it may deem pertinent with regard to the
case of the aforementioned persons."
- To date, the Commission has not received a reply to either
of those notes, although newspaper accounts indicate that Superior
Criminal Court, José Erasmo Pérez España, to whom the case had
referred after the Court Martial declared itself incompetent to
continue with the proceedings, decided to remand the case to the
stage of filing charges, and that the case had been transferred to
the Court of first instance for the pertinent purposes.
That from the documents and allegations submitted by the
complainants and the Government of Venezuela to the Commission for
consideration, it is evident that the present case meet all the
requirements for admissibility, since the denunciation was presented
in proper form and in due time; that a State party to the Pact of San
José is concerned; and that the right that has been allegedly
violated is one of those protected by the aforementioned Convention;
Therefore, having seen the antecedents in this case and the
considerations having been stated,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
- To declare the petition made by the complainants in this
case to be admissible because it meets the requirements established
in the American Convention on Human Rights.
- To urge the Government of Venezuela to adopt the pertinent
measures so that the competent courts may expedite the proceedings
in the case at hand, given the long period of time that has passed
without any decision to define the situation of the indicted persons.
- To communicate this resolution to the Government of
Venezuela and to the complainants.
Note: Dr. Andrés Aguilar excused himself from this case, in
accordance with the provisions of Article 19 of the Rules of