15
inactivity of the Attorney General’s Office by not having requested the dismissal according
to section 301 ejusdem, means not doing a full interpretation of the code in question and
not understanding that the private individuals should have, in that situation and according
to the two sections mentioned, directly resorted to the judicial authorities.
Moreover, this requirement is also based (paragraph 315 and 316) on the mistaken
interpretation of section 75 of the COPP25, by understanding from that, the burden that
lies on the State to produce all the measures of evidence necessary and to investigate the
complaints with due diligence, concluding that the judicial authorities did not decide on
the application of the rules on connection, neither they delivered decisions, except for
some cases, that clarified whether the channel chosen was the appropriate one
(paragraph 317). The truth is that said section deals with the ancillary jurisdiction for the
case in which a same person is held responsible for the commission of a publicly
actionable crime and a crime prosecutable at the request of a party, determining that the
case shall be heard by the court competent to try the publicly actionable crime and the
rules of ordinary procedure shall govern. The rule does not establish the proceeding that
the State should institute but the way in which the procedural matter should be resolved if
a person is held responsible for the commission of two crimes of different nature.
d) The sentencing majority concludes that the investigations did not constituted an
effective means to guarantee the right to humane treatment and the right to seek, receive
and impart information of the alleged victims (paragraphs 358 and 359); therefore, it was
determined that the State is responsible for the non-compliance with articles 13.1 and 5.1
in conjunction with article 1.1 of the Convention, in light of the fact that the State led
reporters to a situation of relative vulnerability (with a weak or nonexistent causal link as
has been emphasized supra), which derived in a hindrance for the reporters to exercise
their profession and the omission of State’s authorities to carry out the investigations with
due diligence (paragraph 362).
The foregoing conclusion makes us think about the responsibility of the State for the
delivery of public services, including the Venezuelan judicial system and in this way,
23
“Section 24. Exercise. The criminal action must be instituted by the Attorney General's Office ex officio,
unless it may be only be instituted by the victim or at the victim's request". The emphasis is mine.
“Section 25. Offenses that can be prosecuted in a private suit. The victim can only institute the actions resulting
from crimes that the law establishes as offenses prosecutable in a private suit. Moreover, the prosecution shall
be conducted pursuant to the special procedure regulated by this Code.
Nevertheless, for those offenses that can be prosecuted in a private suit as established in Chapters I, II and III,
Title VIII, Second Book of the Criminal Code, it would be enough the accusation brought before the Public
Prosecutor Office or before the competent police division of criminal investigations, made by the victim or its
legal representatives or guardians, if the victim were incompetent, without prejudice to the terms established by
special laws”.
Where the victim is not able to bring an accusation or suit by itself, due to its age or mental condition, or if the
victim has no legal representation, or if such representation is not competent, the Attorney General's Office has
the obligation to institute the criminal action. The pardon, dismissal or waiver of the victim shall end the
proceeding, unless the victim was a minor (less than 18 years of age).
24
Para. 321 of the judgment from which I dissent.
25
“Section 75. Ancillary Jurisdiction. “If any of the related crimes corresponds to the competence of an
ordinary court and other crimes to the competence of special courts, the case shall be heard by the ordinary
criminal court”.
When a same person is responsible for the commission of a publicly actionable crime and a crime prosecutable at
the request of the aggrieved party, the case shall be heard by the court competent to try the publicly actionable
crime and the rules of ordinary procedure shall govern”.
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