and ACCOMPLICE IN CONSPIRACY, defined and sanctioned in article 287, all of the Penal Code,” all of which meant that it was necessary “TO APPROVE AN ARREST WARRANT against RAUL JOSE DIAZ PEÑA, in accordance with the provisions of Chapter III, of section VIII, tome 1, of the Code of Criminal Procedure.”59 63. Although, according to the judicial case file provided by the State, the said Note No. 103-04 was addressed to the Head of the CICPC Arrests Division,60 on February 10, 2004, the Sixty-second Prosecutor of the Public Prosecution Service of the Caracas Metropolitan Area contacted an agent of the National Investigations Directorate of the then DISIP, and instructed him to withdraw the said note and arrest warrant,61 which the latter proceeded to do. 64. Furthermore, the evidence provided by the Commission, which the State has not disputed, reveals that, on February 18, 2004, the above-mentioned prosecutor sent a summons to Raúl José Díaz Peña ordering him “to appear, OBLIGATORILY,” before the said prosecutor on Wednesday, February 25, 2004, “with his lawyer, so that his statement could be taken pursuant to the provisions of article 130 of the Code of Criminal Procedure”;62 in other words, in order to take a statement from the accused.63 This summons does not appear in the judicial case file forwarded by the State. 65. On February 25, 2004, Raúl José Díaz Peña presented himself before the Sixty-second Prosecutor of the Public Prosecution Service.64 However, the judicial case file contains no record of this appearance, but rather a police record prepared by the DISIP officials who arrested him “near the Prosecution’s offices.”65 66. In the section on facts of its merits report No. 84/10, the Commission notes that there are two versions of the way in which the said arrest was carried out, namely: 59 Decision ordering the judicial measure of preventive detention issued by the Eleventh First Instance Examining Court of the Judicial District of the Caracas Metropolitan Area on January 22, 2004 (evidence file, tome X, folios 5544 to 5545). 60 Cf. Note No. 103-04 of January 22, 2004 (evidence file, tome X, folio 5547). 61 Cf. Police record of February 10, 2004 (evidence file, tome X, folios 5657 to 5657-A). 62 Summons of February 18, 2004 (evidence file, tome V, folio 2744). 63 Article 130 of the Code of Criminal Procedure establishes with regard to the testimony of the accused that: “The accused shall make a statement during the investigation before the official of the Public Prosecutor’s Office in charge of the investigation, when he appears spontaneously and requests this, or when he is summoned by the Public Prosecutor’s Office. If the accused has been arrested, the examining judge shall be notified immediately so that the accused can make a statement before him, within twelve hours at the latest from the time of his arrest; this time limit shall be extended by a similar period, when the accused so requests in order to appoint a defense counsel. During the intermediate stage, the accused shall make a statement, if this is requested, and the statement shall be received in the preliminary hearing by the judge. During the oral trial, he shall testify when and as established by this Code. The accused shall have the right to abstain from testifying and also to testify as often as he wishes, provided that his testimony is pertinent and does not appear to be merely a means of delaying the proceedings. In any case, the testimony of the accused shall be null if it is not given in the presence of his defense counsel. Code of Criminal Procedure (evidence file, tome XXVI, folio 17521). 64 Cf. Testimony given by Raúl José Díaz Peña by electronic audiovisual means before the Inter-American Court of Human Rights during the public hearing held on December 1, 2011. 65 Police record of February 25, 2004 (evidence file, tome X, folios 5659 to 5660). 20