I/A Court H.R., Case of Barreto Leiva v. Venezuela. Merits, Reparations and Costs. Judgment of November 17, 2009. Series C No. 206.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2010-3-e.pdf




The State must notify the accused of the charges against him and the reasons and evidence therefore before he or she renders his or her first statement before any public authority. This information must be rendered expressly and in a clear and integral manner that is sufficiently detailed so as to allow the accused to fully exercise his or her right to defence and prove his version of the facts. The State must not wait until a person is formally accused or deprived of liberty to provide him or her with the information necessary for the timely exercise of the right of defence.


The right to adequate time and means for the preparation of the defence includes the right to access the case record and to submit arguments to be considered in the analysis of the evidence.


If the State intends to limit this right, it must respect the principle of legality, show the legitimate goal it intends to achieve, and demonstrate that the means to be used in order to achieve that goal are adequate, necessary, and strictly proportional.


An individual's right to defense arises as of the moment in which he or she is put under investigation. He or she must have access to legal representation at all times during that investigation, especially while rendering statements.


The right to legal representation cannot be satisfied by the body which will later file charges against an accused. It is unreasonable to give opposing functions to a single entity.


Article 8.1 ACHR enshrines the individual's right to a hearing by a competent court established by law. When a privilege of an accused provides special jurisdiction, there is not necessarily a conflict with the right to a competent tribunal if such privilege is expressly established and defined by the legislative branch and serves a legitimate purpose.


The law must regulate the joinder of related cases, establishing the Court that shall have jurisdiction over cases that are joined.


The aim of the right to appeal a judgment is to protect the right of defense by creating a remedy to prevent a flawed ruling from becoming final. States have some discretion in regulating the right of review, but they may not establish restrictions or requirements inimical to the very essence of the right to appeal a judgment. Laws regulating the joinder of cases may not produce the inadmissible result of depriving a person of the right to appeal a judgment issued against him.


The American Convention on Human Rights guarantees the right of every person to be tried within a reasonable time or to be released without prejudice to the continuation of proceedings. This right imposes temporal limits on the duration of pre-trial detention and, consequently, on the State's power to protect the object of the proceedings by using this type of precautionary measure.




I.  In 1993, Oscar Enrique Barreto Leiva, then Director General of the Department of Administration and Services of Venezuela, was summoned by the Supreme Court of Justice three times to testify in a criminal proceeding against the President of the Republic at the time, once as a witness, and twice as a co-defendant. Later, an arrest warrant was issued against him and he was sentenced on 30 May 1996, to one year and two months in prison for misappropriation of public funds. Due to the investigation's secrecy, Barreto Leiva was not notified of the charges against him before he was called to testify and was unable to be assisted by counsel of his choice during those interrogations. Moreover, he was preventively detained, exclusively on the basis of indications of criminal responsibility, for longer than the sentence finally imposed, and he was unable to appeal the judgment against him, as the highest court in the land had served as the Court of First Instance.


The Inter-American Commission on Human Rights (hereinafter, the "Commission") filed an application with the Court on 31 October 2008, requesting that the latter declare the State of Venezuela (hereinafter, the "State") responsible for the violation of Article 7 ACHR (Right to Personal Liberty), Article 8 ACHR (Right to a Fair Trial) and Article 25 ACHR (Right to Judicial Protection), in relation to the obligations established in Article 1.1 ACHR (Obligation to Respect Rights) and Article 2 ACHR (Domestic Legal Effects). The Commission also requested that the Court order reparations in favour of the victim.


The representative's submission of 1 January 2009, made no additional allegations against the State.

II. In its Judgment, the Court declared that the State had violated the right to prior notification under Article 8.2.b ACHR, in relation to Article 1.1 ACHR, for failing to officially notify Barreto Leiva that he was being investigated in relation to the case for which he was giving testimony; the right to adequate time and means to prepare a defence under Article 8.2.c ACHR, in relation to Articles 1.1 and 2 ACHR, because under Venezuelan law, facts learned from the investigations always remained secret until the person investigated was arrested, regardless of the particular circumstances of the case; and the right to be assisted by legal counsel of choice under Article 8.2.d ACHR, in relation to Article 1.1 ACHR, because the right to defence arises from the moment an investigation against the individual is ordered, and this right cannot be satisfied by a counsel provided by the Public Prosecutor. Furthermore, the Court found that the State had violated Barreto Leiva's right to appeal a ruling under Article 8.2.h ACHR, in conjunction with Articles 1.1 and 2 ACHR, as he was convicted in a court of sole instance and had no possibility of appealing the judgment against him.


The Court also found that the State was responsible for violating the right to personal liberty and the prohibition against arbitrary detention established in Articles 7.1 and 7.3 ACHR, in relation to Articles 1.1 and 2 ACHR, given that Barreto Leiva was preventively detained, in accordance with Venezuelan law, merely because of the existence of "founded indications of guilt." According to the Court, preventive detention may only be imposed when there are objective indications that the accused will try to elude justice or impede the proceedings against him. Additionally, the Court declared that the State had violated the right to personal liberty, the right to trial within a reasonable time, and the right to be presumed innocent under Articles 7.1, 7.5 and 8.2 ACHR, in relation to Article 1.1 ACHR, because the length of his preventive detention, which exceeded the sentence finally imposed, was unreasonable and disproportionate.


However, the Court also declared that the State did not violate the right to be tried by a competent court under Article 8.1 ACHR, as Venezuelan law reasonably established that Barreto Leiva's case should be heard by the Supreme Court given the connection of the charges to those against the President. Furthermore, neither the Commission nor the representative proved a violation of the right to an impartial tribunal recognised under Article 8.1 ACHR or of the right to call and examine witnesses at trial established in Article 8.2.f ACHR. Finally, the Court found no violation Article 25.1 ACHR, declaring that the facts used to allege a violation of that Article fell under the sphere of application of Article 8.2.h ACHR, which provides for a specific type of remedy that must be offered to every person accused of a crime.


Accordingly, the Court ordered the State to allow Barreto Leiva to appeal his sentence. It also ordered that the State provide him adequate reparations if he was found innocent or if the reviewing court found his sentence excessive. In addition, the Court ordered the State to adapt its domestic law so as to guarantee the right to appeal to all those accused of crimes, to publish the sentence in the official newspaper and another newspaper of national circulation, and to pay non-pecuniary damages and the victim's costs in this dispute.