Venezuela: Requirements and procedures to file a complaint with the Public Prosecutor's Office (Ministerio Público); requirements and procedures for obtaining a copy of a complaint, including who can obtain it, the timeframe within which the copy can be obtained, and who authorizes its issuance; information on whether the court must ratify a decision by the Public Prosecutor's Office to not pursue a complaint and not investigate (2016-April 2017) [VEN105736.E]

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Overview

The Organic Code of Criminal Procedure, Decree No. 9.042 (Código Orgánico Procesal Penal, Decreto No. 9.042) states the following:

[translation]

Powers

Article 267. Any person who has knowledge of the commission of a punishable act may report it to a prosecutor from the Public Prosecutor's Office [Ministerio Público] or a criminal investigation police body. (Venezuela 2012)

The Organic Code of Criminal Procedure further states the following:

Investigation by the Public Prosecutor's Office

Article 265. When, by any means, the Public Prosecutor's Office becomes aware of the perpetration of a punishable act requiring public prosecution, it shall order that proceedings be undertaken to investigate and place on the record its perpetration, to determine all circumstances that could affect its classification and the responsibility of the perpetrators and other participants, and to secure objects directly and indirectly linked to commission of the offence.

Police investigation

Article 266. If notification is received by the police authorities, the latter shall so advise the Public Prosecutor's Office within the next twelve hours and shall only conduct the necessary and urgent proceedings.

Necessary and urgent proceedings shall be aimed at identifying and locating the perpetrators and other participants in the punishable act, and securing objects directly and indirectly linked to commission of the offence. (Venezuela 2012)

The website of the Public Prosecutor's Office indicates that the Public Prosecutor's Office is under the direction of the Public Prosecutor (Fiscal General de la República) (Venezuela n.d.a).

According to the website of the Public Prosecutor's Office, a complaint can be filed at the following offices of the Public Prosecutor's Office:

  • the Registry Office for Document Submission (Oficina de Registro de Presentación de Documentos) of the office of the Public Prosecutor, located at the Public Prosecutor's Office headquarters in Caracas;
  • the State Public Prosecutor's Office (Fiscalía Superior) of the state where the punishable offence occurred; and
  • the Public Prosecutor on Duty (Fiscal de Guardia en Sede) at any branch of the Public Prosecutor's Office or the State Public Prosecutor's Office of the applicable state (Venezuela n.d.b).

According to sources, police bodies where complaints can be filed include:

  • the Scientific, Penal and Criminal Investigations Corps (Cuerpo de Investigaciones Científicas, Penales y Criminalísticas, CICPC) (Venezuela n.d.b; Corporate Criminal Lawyer 26 Apr. 2017; Lawyer 28 Apr. 2017);
  • the Bolivarian National Guard (Guardia Nacional Bolivariana) (Venezuela n.d.b; Corporate Criminal Lawyer 26 Apr. 2017; Lawyer 28 Apr. 2017);
  • the Bolivarian Service of National Investigation (Servicio Bolivariano de Investigación Nacional, SEBIN) (Corporate Criminal Lawyer 26 Apr. 2017);
  • state police (Venezuela n.d.b; Corporate Criminal Lawyer 26 Apr. 2017; Lawyer 28 Apr. 2017);
  • municipal police (Venezuela n.d.b; Lawyer 28 Apr. 2017);
  • and, in [translation] "applicable cases," the Children and Adolescent Protection Councils (Consejos de Protección de Niños, Niñas y Adolescentes) (Venezuela n.d.b; Lawyer 28 Apr. 2017).

Further and corroborating information on such cases could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2. Requirements and Procedures

The Organic Code of Criminal Procedure indicates the following:

Form and Content

Article 268. Complaints may be made verbally or in writing and must include identification of the complainant, his/her address or place of residence, a detailed narration of the act, indication of the persons who committed it and those who witnessed it or have knowledge of it, and all pertinent information concerning the complainant.

In the case of a verbal report, a record will be drawn up in the presence of the complainant, who shall sign it together with the official receiving the report. A written complaint shall be signed by the complainant or by a representative with the authority to do so. If the complainant is unable to sign, he/she shall affix his/her fingerprints.

Start of the investigation

Article 282. Once a report has been filed or a complaint received in regard to the commission of a crime requiring public prosecution, the prosecutor from the Public Prosecutor’s Office shall, without delay, order that the investigation be initiated and all necessary proceedings undertaken to determine the circumstances set out in Article 265 of this Code.

With this order, the Public Prosecutor’s Office will officially open an investigation. (Venezuela 2012)

According to the website of the Public Prosecutor's Office, citizens can file a complaint for crimes such as "fraud, theft, injury, homicide, rape, kidnapping, possession and trafficking of drugs, environmental offences, gender-based violence, and corruption, among others" (Venezuela n.d.b). In correspondence with the Research Directorate, a Maracaibo-based lawyer who specializes in corporate criminal defence law, indicated that the procedure for filing a complaint is the same nation-wide (Corporate Criminal Lawyer 26 Apr. 2017).

In correspondence with the Research Directorate, a Caracas-based lawyer who specializes in criminal and administrative law, indicated that the prosecutor assigned to the case is not necessarily the same as the body that receives the complaint (Lawyer 28 Apr. 2017). The Lawyer gave the example that a complaint can be filed at the Public Prosecutor's Office but later referred to a regular prosecutor for investigation (Lawyer 28 Apr. 2017). According to a Law Firm based in Caracas that specializes in economic criminal law, international criminal law, and business and commercial law, once the complaint is received, the case is assigned [translation] "randomly" to a prosecutor for investigation (Law Firm 15 May 2017).

2.1 Line 0800-FISCA-00

According to the website of the Public Prosecutor's Office, citizens can call the Public Prosecutor's Office's citizen's support Line 0800-FISCA-00 to ask questions and receive guidance from the telephone line operators (Venezuela n.d.c). If the case presented falls within the jurisdiction of the Public Prosecutor's Office, the caller will be assisted by a lawyer or by an attorney on duty in the corresponding jurisdiction (Venezuela n.d.c). If the Public Prosecutor's Office is not the competent authority to hear the case, the telephone line operator will provide the caller with [translation] "necessary information" on the competent body to hear the case (Venezuela n.d.c). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2.2 Victim's Assistance Units

The website of the Public Prosecutor's Office indicates that the Victim's Assistance Units (Unidades de Atención a la Víctima, UAV), a branch of each of the State Public Prosecutor's Offices, provides "personalized" assistance to victims of crime by providing them, free of charge, with "support and advice" as well as information on their rights "to ensure appropriate participation in the penal process" (Venezuela n.d.d). A different page on the same website indicates that there are 33 UAVs throughout the country (Venezuela n.d.e). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2.3 Citizen's Service Office

The website of the Public Prosecutor's Office indicates that the Citizen's Service Offices (Oficinas de Atención al Ciudadano), located in each of the State Public Prosecutor's Offices, provide advice to people who seek the assistance of the Public Prosecutor's Office which, in turn, directs the person to the appropriate government institutions (Venezuela n.d.f). The Citizen's Service Offices [translation] "have administrative, technical and legal staff, and a team of psychologists, sociologists, and social workers" that provide assistance year-round between 8:00 a.m. and 4:00 p.m. (Venezuela n.d.f). A lawyer on duty is available between 4:00 p.m. and 8:00 p.m. (Venezuela n.d.f). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. Issuance of a Receipt of the Complaint

Sources indicate that a receipt of a complaint that is filed before the Public Prosecutor's Office is not issued, but that, if the complaint is in writing, the complainant can request that the public servant taking the complaint stamps a copy of the complaint with a stamp (Lawyer 28 Apr. 2017; Corporate Criminal Lawyer 26 Apr. 2017) and that they sign it (Corporate Criminal Lawyer 26 Apr. 2017). According to the Caracas-based Law Firm, the complainant receives a receipt when the complaint is submitted in writing or verbally (Law Firm 15 May 2017).

The Corporate Criminal Lawyer provided the information in the following paragraph:

When the complaint is filed with the Public Prosecutor's Office, the complainant is asked to return [translation] "a few days later" so he or she can obtain the file number of the case and the coordinates of the prosecutor who is in charge of the investigation. When a complaint is filed with the police, which is often verbally, a receipt is not "usually" issued due to the lack of stationery office supplies, in which case the complainant has to provide such supplies him or herself. Police bodies, instead, issue an "internal number," like the CICPC's, or direct the complainant to the Public Prosecutor's Office to obtain the file number of the case and the coordinates of the prosecutor who is in charge of the investigation (Corporate Criminal Lawyer 26 Apr. 2017). Further and corroborating information about the issuance of a receipt of the complaint could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

4. Requirements and Procedures for Obtaining a Copy of the Complaint

The Organic Code of Criminal Procedure indicates the following:

Nature of the proceedings

Article 286. All proceedings during the investigation are not available to third parties.

The proceedings may only be reviewed by the accused, his/her defence counsel and the victim, regardless of whether civil action is pursued, or by their representatives holding special power of attorney. This notwithstanding, officials who participate in the investigation and persons who for any reason have knowledge of the proceedings carried out during the course thereof, are required to keep them confidential.

In cases in which the participation of officials from State security agencies is alleged, the Ombudsperson's Office may have access to the proceedings that make up the investigation. In such cases, the officials of the Ombudsperson's Office shall be required to keep that information confidential.

… (Venezuela 2012)

According to the Corporate Criminal Lawyer, a complainant must also be the victim in order to have access to the investigation file and obtain copies of said file (Corporate Criminal Lawyer 26 Apr. 2017). If the complainant is not the victim, he or she will be considered a third party, and as such, will not have access to the investigation file (Corporate Criminal Lawyer 26 Apr. 2017). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

The Organic Code of Criminal Procedure states the following:

Article 121. The following shall be considered victims:

  1. The person directly aggrieved by the offence.
  2. The spouse or common-law partner, child, adoptive parent, relatives up to the fourth degree by blood and second degree by marriage, and heirs, in offences that result in the incapacity or death of the aggrieved party.
  3. The spouse or common-law partner, child, adoptive parent, relatives up to the fourth degree by blood and second degree by marriage, when the offence is committed to the detriment of an incapacitated person or a person under eighteen years of age.
  4. Partners, shareholders or members, in the case of offences that affect a corporation and that are committed by the persons directing, administering or controlling it.
  5. Associations, foundations and other entities, in offences that affect collective or diffuse interests, provided that the objective of the group is directly linked to those interests and that they were incorporated prior to perpetration of the offence.

If there are several victims, they must be represented by a single representative. (Venezuela 2012)

Sources indicate that the State Public Prosecutor is the entity responsible for issuing copies of complaints (Lawyer 28 Apr. 2017; Corporate Criminal Lawyer 26 Apr. 2017). The Lawyer indicated that although the Organic Code of Criminal Procedure does not stipulate this endorsement, it is a "generalized institutional and well-established practice" (Lawyer 28 Apr. 2017).

According to the Lawyer, the requestor fills out an application form at the prosecutor's office that is investigating the case, and that application form is sent alongside an internal notification and the copy of the investigation file to the State Public Prosecutor for their approval (Lawyer 28 Apr. 2017). If the application is approved, the State Public Prosecutor notifies the requestor to pick up the copies of the complaint within the next three business days (Lawyer 28 Apr. 2017). The Corporate Criminal Lawyer indicated that in order to obtain a copy of a complaint, the requestor must send a "well justified" written request to the State Public Prosecutor indicating the reasons for the request, the specific pages of the investigation file requested, and a declaration that the requestor will not use the copies in a way different from the indicated reasons (Corporate Criminal Lawyer 26 Apr. 2017). If the request is approved, the State Public Prosecutor notifies the requestor and asks him or her to bring the necessary fee to pay for the copies (Corporate Criminal Lawyer 26 Apr. 2017). According to the Corporate Criminal Lawyer, in "many cases" the requestor goes with the officer from the Public Prosecutor's Office to a photocopying centre to make the copies of the complaint because the Public Prosecutor's Office, "in all cases, does not have a photocopy machine for external use nor does it assume the cost of the requested copies" (Corporate Criminal Lawyer 26 Apr. 2017). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

According to the website of the law firm of the Corporate Criminal Lawyer, [translation] "for a long time" the office of the Public Prosecutor did not issue copies of investigation files until the Supreme Court (Tribunal Supremo de Justicia) of Venezuela ruled that victims have a right to obtain such copies (ALC Penal n.d.). The same source states that since 2006, the office of the Public Prosecutor grants copies of the investigation file to the accused (ALC Penal n.d.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

4.1 Denial of Issuance of a Copy of the Complaint

The Corporate Criminal Lawyer stated that State Public Prosecutors can deny the request for the issuance of a copy of a complaint for reasons including the inability to verify that the requestor is either the victim, the accused or counsel; doubt about the use of the copies; or insufficient justification of the request (Corporate Criminal Lawyer 26 Apr. 2017). If the request for a copy of the file is denied, the requestor can submit another request, correcting any errors if applicable, to a criminal court (Tribunal Penal) to order the Public Prosecutor's Office the issuance of the copies (Corporate Criminal Lawyer 26 Apr. 2017). According to the Corporate Criminal Lawyer, "this procedure is unusual and lengthy" (Corporate Criminal Lawyer 26 Apr. 2017). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

4.2 Timeframe

The Corporate Criminal Lawyer provided the information in the following paragraph:

There is no time limit for requesting copies of complaints. However, it is not possible to obtain a copy of the complaint immediately after filing it, because the case has to go to the prosecutor's office assigned to the investigation first, to go through "several steps", including the assigning of a file number. If the complaint has been rejected or dismissed by a court, copies can be requested from the court that issued the ruling rather than the Public Prosecutor's Office, as parties in the process "would have … lost their status as victim, accused, [or] defense lawyer" after the ruling. Copies of complaints cannot be obtained when a court has ruled a stay of proceedings in the case as this will limit access to the investigation file including for the parties to the case (Corporate Criminal Lawyer 26 Apr. 2017). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

4.3 Obtaining a Copy of the Complaint from Outside Venezuela

Sources indicate that copies of complaints can be obtained from abroad through a proxy in Venezuela who has power-of-attorney (Lawyer 28 Apr. 2017; Corporate Criminal Lawyer 26 Apr. 2017). However, without providing further detail, the Corporate Criminal Lawyer indicated that obtaining such copies from abroad is "more difficult" (Corporate Criminal Lawyer 26 Apr. 2017). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

5. Dismissal of the Complaint

The Organic Code of Criminal Procedure indicates the following:

Dismissal

Article 283. Within thirty working days following receipt of the report or complaint, the Public Prosecutor’s Office shall send a well-reasoned document to the Arraignment Judge to ask that it be dismissed, when the act is not criminal in nature, where action has clearly prescribed, or where there is a legal obstacle to carrying out the proceedings.

The procedure shall be as provided for in this Article if, after the investigation is initiated, it is determined that the acts covered by the proceedings constitute an offence that may only be prosecuted at the request of the aggrieved party.

Effects

Article 284. A decision ordering dismissal, when based on the existence of a legal obstacle to carrying out the proceedings, may not be amended while that obstacle is still in effect. Upon accepting the dismissal, the Judge shall return the proceedings to the Public Prosecutor’s Office, which shall place the file in the archives.

If the Judge refuses the dismissal, he/she shall order that the investigation be continued.

A victim may appeal a decision to dismiss, regardless of whether civil action is pursued, within the five days following the date of publication of the decision. (Venezuela 2012)

Information on the implementation of this article could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

ALC Penal. N.d. "Requisitos para obtener copias del expediente en Fiscalía." [Accessed 25 Apr. 2017]

Corporate Criminal Lawyer, ALC Penal, Maracaibo. 26 April 2017. Correspondence with the Research Directorate.

Law Firm, Caracas. 15 May 2017. Correspondence with the Research Directorate.

Lawyer, Caracas. 28 April 2017. Correspondence with the Research Directorate.

Venezuela. 2012. Código Orgánico Procesal Penal, Decreto N0. 9.042. Excerpts translated by the Translation Bureau, Public Works and Government Services Canada. [Accessed 8 May 2017]

Venezuela. N.d.a. Ministerio Público. "Fiscal General." [Accessed 3 May 2017]

Venezuela. N.d.b. Ministerio Público. "Dónde denunciar." [Accessed 6 Jan. 2017]

Venezuela. N.d.c. Ministerio Público. "Cómo Funciona nuestra atención en línea." [Accessed 24 Apr. 2017]

Venezuela. N.d.d. Ministerio Público. "Unidad de Atención a la Víctima." [Accessed 25 Apr. 2017]

Venezuela. N.d.e. Ministerio Público. "Unidades de Atención a la Víctima." [Accessed 25 Apr. 2017]

Venezuela. N.d.f. Ministerio Público. "Atención al ciudadano." [Accessed 25 Apr. 2017]

Additional Sources Consulted

Oral sources: economic criminal lawyer based in Caracas; three criminal lawyers based in Caracas; lawyer specialized in corporate law based in Caracas; lawyer specialized in labour law based in Caracas; two lawyers specialized in administrative law based in Caracas; Venezuela – Consulate in Toronto, Embassy in Ottawa, Ministerio Público, Permanent Mission to the Organization of American States; US – Embassy in Caracas.

Internet sites, including: ACCESS Facility; Derecho Venezolano; ecoi.net; El Universal; Factiva; Today Venezuela News; UN – Refworld; UPR Info; US – Department of State, Embassy in Caracas; Venezuela – Embassy in Ottawa, Jurisdicción Disciplinaria Judicial, Policía Nacional Bolivariana.