Research Directorate, Immigration and Refugee Board of Canada
1. Legislation
In correspondence with the Research Directorate, a senior partner at a law firm headquartered in Caracas, whose practice areas include criminal law, indicated that search warrants are regulated by articles 196 to 199 of the Organic Code of Criminal Procedure (Código Orgánico Procesal Penal, COPP), Decree No. 9,042 (Decreto N° 9.042) (Senior Partner 25 Mar. 2021).
The COPP provides the following:
[translation]
Search
Article 196. When a search is to be conducted of a dwelling, public offices, a commercial establishment, in its closed premises, or of residential premises, a written warrant from a judge will be required.
The police agency in charge of criminal investigations, when urgent and required, may apply directly to the magistrate for the warrant, with prior authorization, by any means, from the Public Prosecutor’s Office, which will be noted in the application.
The decision of the judge ordering the entry and search of a private residence shall be justified.
The search will be conducted in the presence of two competent witnesses, preferably neighbours with no ties to the police.
If the accused is there but without counsel, another person will be asked to attend. This information will be set out in the record.
The following cases are excluded from the provisions:
- When preventing a crime from being committed or continued.
- Persons wanted for arrest.
The detailed grounds for a warrantless search will be noted in the record.
Warrant contents
Article 197. The warrant must include the following:
- The judicial authority who is ordering the search and a short description of the procedure being ordered.
- A specific indication of the place(s) to be searched.
- The authority that will be conducting the search.
- The specific reason for the search with an exact description of the items or persons being sought and the steps to be taken.
- Date and signature.
The warrant will last a maximum of seven days, after which the authorization will expire, unless it is issued for a determined period, in which case the information will be therein set out.
Procedure
Article 198. The search warrant will be disclosed to whoever is residing at the location or whoever is at the location, providing them with a copy; it will proceed in keeping with article 186 of this Code.
If the party informed resists or no one answers, public force will be used to enter. Upon completion of the search, if the location is empty, it will remain locked and if this is not possible, it will be ensured that no one else can enter until it can be. This procedure will be set out in the record.
Public areas
Article 199. The exception set out under article 196 does not apply to administrative offices of the public service or to gathering and recreational sites when they are open to the public. In such cases, the persons in charge of the site must be given notice of the judge-ordered warrant, except when this would be prejudicial to the investigation. (Venezuela 2012)
2. Issuance Procedures
The information in the following paragraph was provided by a lawyer at a Caracas-based law firm, whose practice areas include criminal law, in correspondence with the Research Directorate:
A search warrant can [translation] "only" be issued for a "dwelling," "public offices," a "commercial establishment, in its closed premises," or "residential premises." Excluding the exception provided in article 196 of the COPP, a search warrant "must be in writing." A judge with "Jurisdiction in a Criminal Court of First Instance with Supervisory Functions" (Competencia Penal de Primera Instancia en Funciones de Control) "must sign any search warrant" and the decision by the judge to issue a search warrant "will always be justified." The search shall be conducted in the presence of two witnesses who must not have ties to the police. The officials who conduct the search must provide a copy of the search warrant to the individuals present on the premises. "In practice, some courts" require search warrant authorization to be recorded in both the criminal file and an "internal court book" (Lawyer 19 Mar. 2021).
According to the lawyer, searches have been conducted without search warrants (Lawyer 19 Mar. 2021). Other sources similarly report that Venezuelan authorities have conducted searches of premises without presenting search warrants (UN 15 Sept. 2020, para. 266; Amnesty International 18 Feb. 2021; OAS 6 Apr. 2020, para. 119, 160).
3. Appearance
Sources indicated that there is no standard format for search warrants (Lawyer 19 Mar. 2021; Senior Partner 25 Mar. 2021). The Senior Partner stated that search warrants across Venezuela "could" look different from each other, since the only legal requirement for the search warrant is to comply with article 197 of the COPP (Senior Partner 25 Mar. 2021). The lawyer noted that all courts have [translation] "different formats," but that "some" are "similar in terms of wording and form" (Lawyer 19 Mar. 2021).
The lawyer indicated that a search warrant will have the letterhead of the issuing court at the top, the "original" signature of the issuing judge at the bottom, and a wet seal of the issuing judge's office placed to the left of the judge's signature (Lawyer 19 Mar. 2021). The same source added that the warrant should include the following information:
- the date of issue
- the file or case number of the investigation
- the search warrant's period of validity, which may not exceed seven consecutive days
- the [translation] "identification" and organizational affiliation of each official participating in the search
- precise information on the property to be searched, including its address and who might be inside (Lawyer 19 Mar. 2021).
The English and French translations of a sample search warrant provided by the Senior Partner are attached to this Response (Attachment 1). The lawyer indicated that the sample search warrant provided in a 13 July 2017 article by a lawyer about police searches in Venezuela, posted on the legal information website Aquí se habla derecho, matches the search warrants that [translation] "legal professionals are used to seeing" (Lawyer 19 Mar. 2021). The English and French translations of a sample search warrant, provided in the 13 July 2017 article by the lawyer about police searches in Venezuela, are attached to this Response (Attachment 2).
4. Security Features
The Senior Partner stated that the security features on the search warrant include "[o]nly the seal and signature of the judge and clerk" (Senior Partner 25 Mar. 2021). The same source added that any attorney can verify the authenticity of the search warrant in court "under the authorization of the defendant or claimant" (Senior Partner 25 Mar. 2021). The lawyer indicated that the original search warrant must be signed by the judge, which allows anyone to verify the document with the office of the issuing judge (Lawyer 19 Mar. 2021).
5. Prevalence of Document Fraud Related to Search Warrants
The Senior Partner stated that their law firm has been "informed that some law enforcement agents sell fake search warrants; however, [these are] not easy to obtain" (Senior Partner 25 Mar. 2021). The lawyer indicated that [translation] "it is not common to see fraudulent copies of search warrants" and added that while it is "easy" to make a copy from a sample warrant, it is "not easy to obtain a seal from a court" (Lawyer 19 Mar. 2021). The same source added that forging private and public documents is considered a [translation] "high-level crime" (delito de alta entidad) in Venezuela (Lawyer 19 Mar. 2021).
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
Amnesty International. 18 February 2021. Venezuela: Impunity in the Face of Lethal Policy of Social Control. (AMR 53/3632/2021) [Accessed 25 Mar. 2021]
Lawyer, Caracas-based law firm. 19 March 2021. Correspondence with the Research Directorate.
Organization of American States (OAS). 6 April 2020. Inter-American Commission on Human Rights (IACHR). "Chapter IV.B Venezuela." Annual Report 2019. [Accessed 25 Mar. 2021]
Senior Partner, law firm headquartered in Caracas. 25 March 2021. Correspondence with the Research Directorate.
United Nations (UN). 15 September 2020. Human Rights Council. Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela. (A/HRC/45/CRP.11) [Accessed 25 Mar. 2021]
Venezuela. 2012. Código Orgánico Procesal Penal, Decreto N° 9.042. Excerpt translated by the Translation Bureau, Public Services and Procurement Canada. [Accessed 24 Mar. 2021]
Additional Sources Consulted
Oral sources: Five law firms in Venezuela; Foro Penal; lawyer who practices criminal law in Venezuela and New York; Programa Venezolano de Educación Acción en Derechos Humanos (PROVEA); Venezuela – embassy in Ottawa; Venezuelan American National Bar Association.
Internet sites, including: ALC Penal Abogados Penalistas; ecoi.net; EU – European Asylum Support Office; Factiva; Foro Penal; Human Rights Watch; Netherlands – Ministry of Foreign Affairs; Programa Venezolano de Educación Acción en Derechos Humanos (PROVEA); UN – Refworld, UN Office on Drugs and Crime; US – Department of State, embassy in Caracas; Venezuela – Ministerio Público.
Attachments
- Venezuela. 2017. Juzgado primero de primera instancia en lo penal en funciones de control circuito judicial del área metropolitana de Caracas (Criminal Court No. 1 of First Instance with Supervisory Functions of the Judicial District of the Metropolitan Area of Caracas). Sample of a search warrant. Sent to the Research Directorate by a senior partner of a law firm headquartered in Caracas, 25 March 2021. Translated by the Translation Bureau, Public Services and Procurement Canada.
- Venezuela. 2015. Tribunal de Control de Barquisimeto (Barquisimeto Supervisory Court). Sample of a search warrant. Translated by the Translation Bureau, Public Services and Procurement Canada. [Accessed 19 Mar. 2021]
