being that of a common crime. They indicate that by clarification of September 17, 2007, the Court of First Instance Sitting as Court of Control of the Judicial Circuit of the Metropolitan Area of Caracas answered that Allan Brewer Carías was said to be the intellectual author of a frustrated attack on the President of the Republic, and that accordingly it was shown that what the indictment described it was not in the nature of a political crime. They indicate that the defense appealed and asked that said clarification be annulled, but that the appeal was dismissed on October 29, 2007. 28. In addition, they note that when an invitation was sent to Allan Brewer Carías to give a lecture at the Inter-American Institute of Human Rights (IIDH), the Ambassador of Venezuela in Costa Rica sent a letter to the president of the IIDH referring to Allan Brewer Carías as someone who “as is known, participated as material and intellectual author and provided direction to ensure correctness in the drafting of the decree by which the constituted branches of government were abolished in the Bolivarian Republic of Venezuela” and that for this reason “he fled the country.” They indicate that in addition arrest orders were requested of INTERPOL in connection with the two invitations sent to Allan Brewer Carías to give lectures in Peru and Spain, and that he decided not to attend, based on security considerations. 29. On January 11, 2008, the representatives of Allan Brewer Carías filed a motion for dismissal before the Twenty-Fifth Judge of Control based on Decree 5790, with Rank, Value, and Force of Special Law on Amnesty, issued on December 31, 2007, by President Hugo Chávez. That provision, directed to “all those persons who, in confrontation with the established general order, and who as of this date are in their right and have been subjected to criminal proceedings, who have been tried and convicted,” includes, among the conduct subject to amnesty, “the drafting of the Decree of the de facto government of April (12,) 2002.”27 The request was denied on January 25, 2008, based on Allan Brewer Carías not having entered an appearance in the proceeding. The petitioners allege that the denial was groundless, in violation of the right to effective judicial protection and equal protection. They indicate that the decision was appealed to the Fifth Chamber of the Court of Appeals of the Criminal Circuit of the Metropolitan Area of Caracas and denied on April 3, 2008. 3. Arguments on the violation of the American Convention 30. The petitioners allege that the State is responsible for violating the rights established in Articles 8(1), 8(2), 11, 13, 22, 24, 25, 1(1), and 2 of the American Convention, to the detriment of Allan Brewer Carías. 31. Based on the right to be heard by a competent, independent, and impartial judge or court, established at Article 8(1) of the American Convention, the petitioners argue that the prosecutors and judges who acted in the indictment and arraignment of Brewer Carías are provisional officials, and that they have been replaced whenever their decisions were not “to the liking of the persecutors.” They argue that the provisional nature of judges and prosecutors violates the guarantee of independence and impartiality set forth at Article 8 of the American Convention insofar as they do not enjoy stability in their position, and can be freely removed or suspended. 32. With respect to the right of all persons accused of a crime to be presumed innocent so long as their guilt has not been legally established, set forth at Article 8(2) of the American Convention, the petitioners allege that a proceeding was begun against Allan Brewer Carías based on a “notorious communicational fact” (“hecho notorio comunicacional”), even though he refuted the information that appeared in the press. The petitioners allege that in the case-law of the Constitutional Chamber of the Supreme Court of Justice of Venezuela, a “notorious communicational fact” is only present when there is news disseminated by the media that has not been refuted or contradicted. They also argue that the office of the prosecutor shifted the burden of proof by requiring the defense to disprove the accusation it leveled against Allan Brewer Carías. 27 Gaceta Oficial No. 5.870 Extra of December 31, 2007. Art. 1.A. Petitioners’ brief received February 25, 2008, para. 2. 7