The International League Against Arbitrary Detention urges Bolivia to take all necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 33/2023 concerning Ayben Huaranca Murillo, asking Bolivia to immediately release him, and to accord him an enforceable right to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Ayben Huaranca Murillo (Plurinational State of Bolivia): Opinion No. 33/2023.
ARREST OF A NURSE WHO TREATED THE WOUNDS OF INJURED PROTESTERS
In October 2019, following the Presidential elections in which Evo Morales Ayma was elected for the third time, numerous protests erupted in Bolivia. Those were violently repressed by police and armed-forces. Notably, on 19 November 2019, in Sentaka (city of El Alto), a protest took place and was violently repressed by such forces (i.e., soldiers firing tear gas and shooting from helicopters), killing 8 persons and injuring dozens of others.
Ayben Huaranca Murillo is a Bolivian national and nurse who was working at the Hospital Materno Infantil in La Paz. On 19 November 2019, while going to work in the morning, Mr. Huaranca Murillo came across the protest and its violent repression. He decided to help the wounded persons, begged the police to call ambulances, to stop the violence. In return, the police and soldiers threatened him, saying he would die if he did not leave. He stayed there from 10 a.m to 6:30 p.m to treat the wounded. The source noted that during this day, Mr. Huaranca Murillo's actions were filmed and uploaded on social medias.
At night, he learned by his family that the authorities had publicly declared he had passed himself as a policeman and soldier, while the protestors in Sentaka had been described as terrorists and criminals. On 20 November 2019, after having publicly clarified the situation, he went to work. In the afternoon, two plainclothes police officers came to his work and asked him to accompany them to make a statement about the events of the previous day. He was taken to the office of the Special Force to Fight Crime, where he was interrogated several times and during which he was physically and psychologically tortured, in an attempt to make him confess.
On 21 November 2019, Mr. Huaranca Murillo was charged under the following provisions of the Penal Code and Code of Criminal Procedure of the Plurinational State of Bolivia: article 130, in relation to public incitement to commit a crime, article 123, related to sedition, and article 133, in relation to terrorism. Specifically, he was accused of having acted and used social media in a public manner to incite the commission of crimes under the pretext of taking advantage of social conflicts arising in the country, acting maliciously by generating disturbances with seditious messages related to terrorism.
On 22 November 2019, during his precautionary hearing, the judge decided to held Mr. Huaranca Murillo in pre-trial detention, in the San Pedro penitentiary. On 11 December 2019, following a request submitted by his defense, he was granted house arrest. However, it was not rendered effective until 17 April 2020. On 16 August 2021, Mr. Huaranca Murillo was eventually released from his house arrest, as the Public Prosecutor's Office requested the withdrawal of the accusation against him due to insufficient evidence, which implied a dismissal of the case.
The Working Group gave the Government of Bolivia the opportunity to answer these allegations, which it did on 3 March 2022.
ARRESTED WITHOUT A WARRANT AND HELD IN PRE-TRIAL DETENTION WITHOUT JUSTIFICATION
According to the source, Mr. Huaranca Murillo was apprehended without an arrest warrant and without being informed of the reasons for his arrest. The Government did not contest these facts, but justified the arrest by referring to the state of emergency and the need to control violent uprisings at the time. Considering this, the Working Group found that the lack of adequate procedure to arrest Mr. Huaranca Murillo breached article 9 (1) of the Covenant, and that the lack of information provided to him concerning the reasons of his arrest breached article 9 (2) of the Covenant.
The source also noted that Mr. Huaranca Murillo was held in pre-trial detention from 22 November 2019 onwards, without a legal basis. Besides, the source emphasised that from 11 December 2020 to 17 April 2020, Mr. should have been put under house arrest, which he wasn't despite an official legal decision requiring so. This was not denied by the Government. In this light, the Working Group recalled that pre-trial detention should be exceptional, only last the shortest possible time, and based on an individual determination of the facts. Finding these conditions were not respected in this case, the Working Group found a violation of article 9 (3) of the Covenant.
As such, the Working Group found that the arrest and detention of Mr. Huaranca Murillo had violated his right not to be arbitrarily detained, guaranteed by article 9 of the Universal Declaration of Human Rights and article 9 of the Covenant. As such, they lacked a legal basis, rendering his deprivation of liberty arbitrary under category I.
TARGETED FOR EXERCISING HIS RIGHT TO FREEDOM OF EXPRESSION
The source argued that the Senkata massacre took place in the midst of an anti-government protest. Within this context, Mr. Huaranca Murillo provided medical aid to the injured protestors, and used social media to ask for help and to denounce what he was seeing as a witness to this violence. The source argued that his use of social media was the reason for the criminal charges he faced, which was not contradicted by the Government. As such, the Working Group recalled that the right to freedom of expression included political opinions, and found that the arrest of Mr. Huaranca Murillo had resulted from his exercise of this right, in breach of article 19 of the Universal Declaration of Human Rights and article 19 of the Covenant.
Moreover, the source noted that the charges brought against Mr. Huaranca Murillo were vague and general, which allowed them to be used in a capricious manner to incriminate him. In this regard, the Working Group recalled that criminal laws should be drafted with precision, so that individuals can adapt their behaviour accordingly, and so that law enforcement officials cannot have uncontrolled interpretations. It noted that otherwise, such laws could have a chilling effect on fundamental freedoms.
Considering the above, the Working Group found that the detention of Mr. Huaranca Murillo was arbitrary under category II.
DENIED IMMEDIATE ACCESS TO LEGAL ASSITANCE AND SUBJECTED TO TORTURE
First, the source argued that Mr. Huaranca Murillo was denied immediate access to legal counsel because following his arrest, he was taken to the office of the Special Force to Fight Crime, where he was detained incommunicado for more than 20 hours. There, he was subjected to physical and psychological torture - including beatings, kicking, and threats of death - on three separate occasions, in order to force a confession. Notably, the officers demanded that he confess to being a militant of the 'Movimiento al Socialismo' (MAS) and to incriminate others. Besides, the source claimed that even when he was finally given access to a lawyer, the police threatened him so that he would not reveal that he had been tortured. These allegations were not denied by the Government.
Considering the above, the Working Group found that Mr. Huaranca Murillo had been deprived of his right to access a lawyer, guaranteed under article 14 (3) of the Covenant, and more specifically his right to have adequate time and facilities to prepare a defence and to communicate with a lawyer of his choice, guaranteed under article 14 (3) (b).
As to the allegations related to his detention incommunicado during which he was tortured, the Working Group recalled that prompt and regular access to family members and lawyers are essential safeguard against torture, while incommunicado detention increases the risk for torture. The Working Group found that the torture Mr. Huaranca Murillo was subjected to undermined his ability to defend himself, especially as it denied his right to be presumed innocent under article 14 (2) of the Covenant, and that it undermined the whole proceedings against him since it violated his right not to be forced to confess guilt under article 14 (3) (g) of the Covenant. Noting that the Government conducted a visit to San Pedro prison with UN staff to visit Mr. Huaranca Murillo in relations to these allegations, the Working Group expressed its concern about these alleged torture, and thus referred the case to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment for further consideration.
Considering all the above, the Working Group found that Mr. Huaranca Murillo's rights to a fair trial, protected under article 10 of the Universal Declaration of Human Rights and article 14 of the Covenant, were violated. Therefore, the Working Group found that his detention was arbitrary under category III.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
In light of the foregoing, the UN Working Group Against Arbitrary Detention considered that the detention of Ayben Huaranca Murillo was arbitrary and fell under categories I, II, and III because his deprivation of liberty was in contravention of articles 9, 10 and 19 of the Universal Declaration of Human Rights and articles 9, 14, and 19 of the International Covenant on Civil and Political Rights.
The Working Group urged the Bolivian Government to investigate the circumstances of the violations of his rights and take appropriate measures against those responsible for them. The Working Group considered that, taking into account all the circumstances of the case, the appropriate remedy would be to release him immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law. The Working Group also expressed its concern about the alleged numerous cases of arbitrary detentions in Bolivia, particularly those related to the political crisis in Senkata.
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