evidence against him, his remaining in preventive detention for a period longer than that
established by law, and the constant violation of his right to the presumption of innocence. 31
16. The petitioner argues that on February 26, 2007, the First Specialized Subsidiary Chamber
of the Court of Appeals of the Criminal Judicial Circuit for the Metropolitan Area of Caracas
declared itself to have jurisdiction to hear the amparo action and declared it inadmissible
based on Article 6(5) of the Organic Law of Amparo over Constitutional Rights and Guarantees,
that is, since the moving party opted to exercise the regular means of challenge enshrined in
the legal order, without fully meeting the legal conditions for the amparo action to prevail 32
since Mr. Díaz Peña’s defense opted to file a motion to appeal the decision that denied any
review of the preventive measure. Moreover, she noted that according to Article 264 of the
COPP, the review of the measure ordering deprivation of liberty can be requested as many
times as necessary and its refusal does not constitute a violation of a constitutional right or
guarantee. 33
17. The petitioner notes that the declaration of inadmissibility was appealed on March 2,
2007 34, and that on May 11, 2007, the Constitutional Chamber of the Supreme Court of Justice
rejected the appeal and affirmed the decision of the First Specialized Subsidiary Chamber of
the Court of Appeals. 35 She alleges that with this decision all domestic remedies available to
secure the liberty of Mr. Díaz Peña pursuant to Article 244 of the COPP were exhausted. She
notes that in tandem, on April 17, 2007, more than three years after the detention of Raúl
José Díaz Peña, the Fourth Court of First Instance was asked once again to review the
deprivation of liberty, and that motion was rejected on April 23, 2007, considering that the
circumstances due to which the measure was initially decreed have not changed, and that the
circumstances for presuming danger of flight are still present, since the sentence that could be
imposed on Mr. Díaz Peña is “considerable.” 36
18. By virtue of the foregoing, the petitioner alleges that the State is responsible for violating
the right to personal liberty protected at Article 7 of the American Convention insofar as at the
time of his arrest Mr. Díaz Peña was not shown the arrest warrant nor was he informed of his
rights, as per Article 117 of the COPP. She alleges that the detention was with the words “I’m
sorry but you have to come with me” and that afterwards the officer who detained him wrote
false information in the document with respect to the moment and place of detention. She
further alleges that the trial of Raúl José Díaz Peña began more than three years after his
arrest, and his conviction was handed down more than four years later, in violation of Article
244 of the COPP, which establishes a limit of two years for the precautionary deprivation of
liberty. The petitioner notes that all the remedies pursued on behalf of Raúl José Díaz Peña,
such as the review of the deprivation of liberty, the replacement of the deprivation of liberty,
the motion to annul, and the amparo action, have been dismissed by the authorities.
31
The petitioner notes that the amparo action was filed before the Supreme Court of Justice and that on December
19, 2006, the Constitutional Chamber of the Supreme Court of Justice declared that it lacked jurisdiction to hear the
constitutional amparo action, and it referred the matter to the corresponding Courts of Appeals. It notes that on
February 8, 2007, two members of the Special Chamber of the Court of Appeals of the Criminal Judicial District for the
Metropolitan Area of Caracas recused themselves, which is why a Subsidiary Chamber was constituted. Constitutional
Chamber of the Supreme Court of Justice, writing for the Court Judge Marcos Tulio Dugarte Padrón, Case No. 06-1245,
December 19, 2006. Attached to petitioner’s brief of January 23, 2007.
32
The petitioner cites the First Specialized Subsidiary Chamber of the Court of Appeals of the Criminal Judicial Circuit
for the Metropolitan Area of Caracas with Jurisdiction to Hear Terrorism-related Cases, in Constitutional Jurisdiction,
Case No. S7-3119-07, February 26, 2007. Petitioner’s brief received at the IACHR March 28, 2007.
33
The petitioner cites the First Specialized Subsidiary Chamber of the Court of Appeals of the Criminal Judicial Circuit
for the Metropolitan Area of Caracas with Jurisdiction to Hear Terrorism-related Cases, Case No. S7-3119-07, February
26, 2007. Petitioner’s brief received at the IACHR March 28, 2007.
34
The petitioner makes reference to the appeal brief directed to the Judges of the Constitutional Chamber of the
Supreme Court of Justice, March 2, 2007. Attached to the petitioner’s brief of May 7, 2007.
35
The petitioner cites the Constitutional Chamber of the Supreme Court of Justice, writing for the Court Judge Arcadio
Delgado Rosales, Case No. 07-0376, May 11, 2007, which indicated, among the grounds of inadmissibility, that “the
injured person has opted to take recourse to the regular courts or made use of pre-existing judicial means [and] that
the moving party pursued the regular remedies provided for in the law against the deprivation of liberty for more than
two years without having been tried.” Attached to the petitioner’s brief received at the IACHR May 16, 2007.
36
The petitioner cites the Fourth Court of First Instance for Criminal Matters (for Trial) of the Criminal Judicial Circuit
of the Judicial District for the Metropolitan Area of Caracas, April 23, 2007. Attached to the petitioner’s brief of May 7,
2007.
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