Case Summary and Outcome

The Second First Instance Criminal Tribunal of Miranda, Venezuela, acquitted Mr. Pedro Jaimes, who was detained after posting on his Twitter account information about the presidential aircraft’s flights. He was accused of interfering with aeronautical security, disclosing political secrets, and cyber espionage. The defendant argued that he was exercising his right to freedom of expression, and that the information he shared was already publicly available on the internet and that society had a legitimate interest in knowing how public resources were used. Furthermore, Mr. Pedro Jaimes claimed that the restrictions on his human rights were not provided by law, necessary, or proportional. While the Court did not refer to the right to freedom of expression, it concluded that no evidence demonstrated the commission of the crimes Mr. Pedro Jaimes was accused of, and ordered his immediate release. Mr. Pedro Jaimes’ lawyers, during his detention, also requested precautionary measures before the Inter-American Commission on Human Rights, that were subsequently granted. A petition before the United Nations Working Group on Arbitrary Detention was also submitted. The Working Group adopted the petitioner’s arguments as their own and held that Mr. Pedro Jaimes’ detention was arbitrary and that his right to freedom of expression had been violated.

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Facts

Mr. Pedro Patricio Jaimes Criollo managed a Twitter account called @AereoMeteo, where he shared information about weather conditions and air traffic around the world. On May 3, 2018, he posted information about the flight route of the Venezuelan presidential airplane. He tweeted the itinerary of the aircraft, along with other air traffic data, such as location, height, and speed.

On May 10, 2018, Mr. Jaimes was apprehended at his house, by agents of the Bolivarian National Intelligence Service (SEBIN).

On May 12, 2018, he was charged with the crimes of interference with aeronautical security, disclosure of political secrets, and cyber espionage. He was detained on remand, under the argument that there was a proven flight risk. After his detention, on May 15, 2018, agents returned to Mr. Jaimes’ house and seized electronic equipment and other devices, such as computers and radars.

His family and lawyers claimed they had tried, several times, to visit Mr. Jaimes at “El Helicoide”, the headquarters of the Bolivarian National Intelligence Service (SEBIN), but the officers there repeatedly stated that he was not being held at that location.

On May 28, 2018, Mr. Jaimes’ lawyers filed a habeas corpus action, which was later declared inadmissible because the court had confirmed that Mr. Jaimes Criollo was, in fact, being held at “El Helicoide” prison.

On June 4, 2018, Mr. Carlos José Correa Barros, Executive Director of the NGO “Espacio Público”, requested precautionary measures to the Inter-American Commission on Human Rights to guarantee the rights to life, personal liberty, and personal integrity of every person detained at “El Helicoide”, but particularly of Mr. Pedro Jaimes.

On June 18, 2018, Mr. Carlos Correa and two other lawyers from “Espacio Público” sent another petition, this time to the United Nations Working Group on Arbitrary Detention, claiming an enforced disappearance and the violation of the rights to freedom of opinion and expression. In their view, the alleged violations of Pedro Jaimes’ rights to personal liberty, personal integrity, and private and family life, were a retaliation for the legitimate exercise of his right to freedom of expression on social networks. They argued that Pedro Jaimes was arrested, prosecuted and then disappeared, as a result of the exercise of his freedom of expression.

On October 4, 2018, the Inter-American Commission on Human Rights adopted the precautionary measures and asked Venezuela to take the necessary steps to protect Pedro Jaimes’ rights to health, life, and personal integrity. Regarding the alleged violation of the right to freedom of expression, the Commission held that it should be evaluated on the merits of an eventual petition or case, and not in a precautionary measures procedure.

On September 19, 2019, the UN Working Group on Arbitrary Detention published its opinion concerning Pedro Jaimes. It held that Mr. Jaimes was arbitrarily detained for having exercised his right to freedom of expression by sharing, through Twitter, information of legitimate public interest that was not harmful to national security. Consequently, it requested the government to release Mr. Jaimes unconditionally and offer him appropriate compensation and other reparations.

On January 8, 2020, the Second First Instance Criminal Tribunal of Miranda closed the admission of evidence for the criminal procedure against Pedro Jaimes. On November 17, 2020, the Court opened the oral and public proceedings, which concluded on January 21, 2021.

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Decision Overview

The main issues before the Second First Instance Criminal Tribunal of Miranda, Venezuela, were whether Pedro Jaimes’ actions constituted a crime, whether the conditions of his apprehension and detention were legal, and whether these circumstances entailed a violation of his right to freedom of expression.

The Prosecutor accused Mr. Pedro Jaimes of the crimes of interference with aeronautical security, disclosure of political secrets, and informatic espionage, according to the Venezuelan Criminal Code, the Civil Aeronautics Act, and the Special Act against Cybercrimes. In her opinion, Mr. Pedro Jaimes repeatedly posted on his Twitter account content against the Venezuelan State, mainly the location, routes, and destinations of the Presidential aircraft whenever the President used it. Furthermore, the Prosecutor argued that Mr. Jaimes Criollo was arrested in flagrante delicto, and that he used technological tools to interfere with the radio communications of aircrafts and airports, to obtain classified information that was subsequently shared on social networks.

The defendant argued that the detention and the criminal proceedings were arbitrary. He claimed that publishing the information was a legitimate exercise of his right to freedom of expression, as enshrined in the Venezuelan National Constitution, Article 19 of the International Covenant on Civil and Political Rights, and Article 13 of the American Convention on Human Rights. Additionally, Mr. Pedro Jaimes argued that the information he posted about the location of the Presidential aircraft was already publicly available. In this sense, he explained that through the open website Flightradar24, by introducing the “plate” of an airplane routes can be tracked and that the Venezuelan Presidential aircraft’s plate is public. Thus, the information was not restricted. On the contrary, for the defendant, society has a legitimate interest in knowing how public resources are used, and which are the governmental activities of the President, so the information he published was a matter of public interest and, consequently, specially protected by international law.

The defendant also claimed that this restriction to freedom of expression was not provided by law, necessary nor proportionate, as Mr. Pedro Jaimes was detained without a legal order, and incarcerated for one year and five months, where he allegedly suffered tortures and other violations to his right to due process. The defendant also said that he was the victim of an enforced disappearance, as the government denied information about his detention and whereabouts for several days. Finally, the defendant highlighted that the judiciary had been omitting the freedom of expression dimension of the case. In his opinion, the main issue here was that the information that he published, which was the basis for his detention and criminal prosecution, was publicly available and no law expressly prohibited the disclosure of this data. Consequently, the whole procedure was illegal. Furthermore, Mr. Pedro Jaimes said that he obtained the information without breaching any security system and that the government failed to explain how the case might be considered a matter of national security.

The judge in charge of the Second First Instance Criminal Tribunal of Miranda acquitted Mr. Pedro Jaimes. She did not refer to the claim regarding freedom of expression. In her opinion, no evidence demonstrated the commission of the crimes charged against Mr. Pedro Jaimes and found no basis for his alleged criminal responsibility. In sum, the Court held that the presumption of innocence was not overturned and concluded that it was not possible to issue a condemnatory judgment in light of the testimonial and documentary evidence received. Mr. Jaimes was declared not guilty, and the judge ordered his immediate release.

International Procedures

Apart from the local judgment, it is worth analyzing briefly the precautionary measures adopted by the Inter-American Commission on Human Rights, and the opinion of the UN Working Group on Arbitrary Detention. While the Inter-American Commission stated that the issue around freedom of expression should be evaluated on the merits of an eventual petition or case, and not in a precautionary measures procedure, it recalled that generally “the right to freedom of expression applies as a rule to all communications, ideas, and information disseminated through the Internet.” [para. 22]

The UN Working Group on Arbitrary Detention referred more extensively to this issue. Firstly, regarding the detention, it held that “a person is considered to have been arrested in flagrante delicto when the accused is deprived of liberty during or immediately after the commission of a crime or is arrested in pursuit moments after the crime has been committed.” [para. 88]  However, in this case, the Working Group recalled that Mr. Pedro Jaimes was arrested on the morning of May 10^th, without an arrest warrant being shown, and that he had shared the itinerary of the presidential plane through his Twitter account on 3 May, a week before. Consequently, the Working Group found that there was no convincing information that proved that “the arrest was carried out either while the offence was being committed, immediately afterward or in pursuit.” [para. 89] Hence, he was not arrested in flagrante delicto and his initial arrest was considered arbitrary.

Secondly, the Working Group highlighted that “freedom of opinion and freedom of expression are indispensable prerequisites for the full development of the person and constitute the cornerstone of free and democratic societies.” [para. 92] It also held that the “Internet is, in many respects, a mode of communication comparable to the diffusion or reception of information or ideas through any other means (…) However, there also exist meaningful differences between the exercise of the freedom of expression via the Internet, and other, more traditional means of communication. Namely, the distribution and reception of information via the Internet is much wider and quicker. In addition, the Internet is more easily accessible to anyone. Even more significantly, the Internet is a mode of communication which operates not on a local but on a global scale, not depending on national territorial boundaries.” [para. 94]

For the Working Group, “when a State party invokes a legitimate ground to restrict freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, establishing a direct and immediate connection between the expression and the threat.” [para. 97] In this case, it held that the air traffic information shared by Mr. Pedro Jaimes “was drawn from sources in the public domain and can easily be found on the Internet.” [para. 97] Additionally, the Working Group affirmed that there was no law that clearly and precisely stipulated that the information was classified for reasons of national security and found that the government failed to provide convincing evidence about the alleged interference in communications to obtain the data shared on social networks.

The Working Group concluded that Mr. Pedro Jaimes was arbitrarily detained “for having exercised the right to freedom of expression by sharing, through the Twitter social network, information of legitimate public interest that was not prejudicial to national security”. [para. 99] Hence, it requested the government to release him unconditionally and award him reparations.

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