Information;Judgment — ECLI:EU:T:2021:447
Date: 2021-07-14
Language of the case: English
Court formation: Seventh Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment - unfounded

summary of an article published on the website ‘Notitotal.com’, according to which, during a demonstration held in Caracas (Venezuela) on 19 June 2017, ‘controlled by the Bolivarian National Guard’, 48 people were injured. Next, according to the applicant, the press articles gathered by the Council from the internet often refer to other sources of information, even though such ‘recycling’ of information affects the reliability of their content. Lastly, he submits that many of the press articles relied upon by the Council are biased because they were published in newspapers and on websites which support the opposition. 55 In the second place, the applicant argues that the Council did not have sufficient evidence to establish that serious and systematic human rights violations were committed due to the use of excessive force by the Bolivarian National Guard. 56 In order to assess the role of the Bolivarian National Guard and the applicant’s role, the applicant argues that it was necessary to take account of the provisions governing the Bolivarian National Guard. Thus, the Bolivarian National Guard is a constitutional body forming part of the Venezuelan armed forces. It is responsible, inter alia, for conducting operations as required to maintain order within the country. In addition, the legislation applicable to the Bolivarian National Guard provides for progressive degrees for the use of force depending on the level of resistance and opposition and governs, inter alia, the use of tear gas and firearms. The Venezuelan legal framework on the functioning of the Bolivarian National Guard is thus in line with the ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana (Cuba) from 27 August to 7 September 1990. 57 Furthermore, the Council should also have taken account of the fact that, from the beginning of 2016, the then President of Venezuela had declared a state of emergency and that, given the severe social crisis in which Venezuela was immersed in 2017, the President, on 13 May 2017, also declared a state of exception covering the whole of the Venezuelan territory. 58 According to the applicant, under his command, the Bolivarian National Guard never received the order to intervene with the use of force or with firearms. It used only rubber bullets and tear gas and thus acted within the competences conferred on it by the legislation on the control and maintenance of public order. 59 In the third place, the applicant claims that his statements should have been assessed in the context in which they were made, that is, in the light of the turbulent political, social and economic situation in Venezuela. He refers in that regard to his statement in the video published on the website ‘Notimpacto.com’. 60 Furthermore, he argues that it should be noted that military criminal courts are part of the judiciary and that, under the Military Code of 17 September 1998, military courts have jurisdiction over civilians in cases, inter alia, of rebellion. However, the Bolivarian National Guard has no power to decide whether an accused person must appear before a civil or military court. 61 In the fourth place, and in any event, the applicant argues that he left his position with the Bolivarian National Guard and was relieved of his duties as Chief of the Capital District Government before the contested acts were adopted. The applicant submits that therefore, since he no longer carried out any public role, the contested acts could not achieve the aim pursued by the Council. 62 The Council contests the applicant’s arguments. 63 It should be borne in mind that the effectiveness of the judicial review guaranteed by Article 47 of the Charter requires, inter alia, that the Courts of the European Union are to ensure that the decision, which affects the person or entity concerned individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern the question of whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 119, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775,paragraph 64). 64 To that end, it is for the Courts of the European Union, in order to carry out that examination, to request the competent European Union authority, when necessary, to produce information or evidence, confidential or not, relevant to such an examination (see judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 120, and the case-law cited; judgment of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 65). 65 That is because it is the task of the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well founded (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 121, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 66). 66 For that purpose, there is no requirement that that authority produce before the Courts of the European Union all the information and evidence underlying the reasons alleged in the act sought to be annulled. It is however necessary that the information or evidence produced should support the reasons relied on against the person concerned (judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 122, and of 28 November 2013, Council v Fulmen and Mahmoudian, C‑280/12 P, EU:C:2013:775, paragraph 67). 67 So far as concerns the types of evidence which may be relied on, the prevailing principle of EU law is the unfettered evaluation of the evidence available (judgment of 6 September 2013, Persia International Bank v Council, T‑493/10, EU:T:2013:398, paragraph 95 (not published)). In that regard, it is important to recall that, in the absence of investigative powers in third countries, the assessment of the EU authorities must rely on publicly available sources of information, reports, articles in the press or other similar sources of information (see, to that effect, judgment of 14 March 2018, Kim and Others v Council and Commission, T‑533/15 and T‑264/16, EU:T:2018:138, paragraph 107). It is clear from the case-law that, inter alia, in some situations, the Courts of the European Union may take into account reports from international organisations (see, to that effect, judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 48). 68 Moreover, according to settled case-law, having regard to the preventive nature of the restrictive measures adopted by the Council, if, in the course of their review of the lawfulness of the contested acts, the Courts of the European Union consider that, at the very least, one of the reasons mentioned in those acts in respect of a person on whom those measures are imposed is sufficiently detailed and specific, that it is substantiated and that it constitutes a sufficient basis in itself to support the decision to include or retain the name of the persons on the lists annexed to those acts, the fact that the same cannot be said of other such reasons cannot justify the annulment of those acts (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 130; of 28 November 2013, Council v Manufacturing Support & Procurement Kala Naft, C‑348/12 P, EU:C:2013:776, paragraph 72; and of 26 March 2019, Boshab and Others v Council, T‑582/17, not published, EU:T:2019:193, paragraph 221). 69 It is in the light of those principles that it is necessary to examine whether the grounds for including the applicant on the lists at issue are vitiated by errors of assessment. 70 As set out in paragraphs 4 and 5 above, in accordance with Article 6(1) and Article 7(1) of Decision 2017/2074, the general criteria established by the Council for inclusion on the lists cover, first, natural persons who are ‘responsible for serious human rights violations or abuses or the repression of civil society and democratic opposition in Venezuela’ and, second, natural persons ‘whose actions, policies or activities otherwise undermine democracy or the rule of law in Venezuela’. 71 In that regard, it should be borne in mind that, as regards the general context in Venezuela, it is apparent from recitals 1 and 5 to 8 of Decision 2017/2074 and recitals 1 and 2 of Regulation 2017/2063 that the contested acts were adopted on account of the continuing deterioration of democracy, the rule of law and human rights in Venezuela, as a result of, inter alia, the use of excessive force, and the repression of civil society and democratic opposition. Recital 5 of Decision 2017/2074 states that, on 26 July 2017, the European Union expressed concern at the numerous reports of human rights violations and the use of excessive force, and called on the Venezuelan authorities to respect the Venezuelan Constitution and the rule of law and to ensure that fundamental rights and freedoms, including the right to peaceful demonstration, are guaranteed. 72 That general context of the situation in Venezuela was also referred to by the Council before the Court, without it being disputed by the applicant. The Council thus recalled that, after December 2015, following elections to the National Assembly, a coalition of opposition parties had won the majority of the seats. In January 2016, the then President of Venezuela declared a state of emergency and ruled by decree. By April 2017, demonstrations had taken place almost daily for several months, which resulted in the death and injury of many civilians and thousands of arrests. In May 2017, the then President of Venezuela announced the creation of a Constituent Assembly the members of which were elected on 30 July 2017 following an electoral process boycotted by the opposition. 73 In the present case, the Council considered that the applicant was involved in the repression of Venezuelan civil society and democratic opposition, that he was responsible for serious human rights violations committed under his command by the Bolivarian National Guard, and that his actions and policies as General Commander of the Bolivarian National Guard, in particular where it played a leading role in the maintenance of the order during civil demonstrations and when he publicly advocated the jurisdiction of military courts over civilians, undermined the rule of law in Venezuela. 74 In that regard, in its file, the Council relied, inter alia, on the following evidence: – An article of 29 June 2017, published on the website ‘www.efectococuyo.com’ entitled ‘The Prosecutor General’s Office summons Benavides Torres for [human rights] violations during demonstrations’; – An article of 30 June 2017, published on the website ‘https://konzapata.com’ entitled ‘The case and double charge against General Antonio Benavides Torres’; – An article of 20 June 2017, published on the website ‘http://notitotal.com’ entitled ‘At least 48 injured in the repression of demonstrators in Caracas’; – An article of 19 June 2017, published on the website ‘http://eltubazo.com.ve’ entitled ‘The National Guard fires at demonstrators in Altamira’; – The report of the Office of the UN High Commissioner for Human Rights (HCHR) of 30 August 2017; – The declaration of the Secretary General of the Organization of American States (OAS) of 16 May 2017. 75 In that regard, as the Council states, it is apparent from the HCHR report of 30 August 2017 that, from April to July 2017, the Venezuelan security forces used firearms loaded with buckshot, marbles and metal rod pieces in the repression of demonstrations, that at least 14 demonstrators were killed by those types of ammunition and that, during those demonstrations, the Bolivarian National Guard was the only security force present. 76 In addition, as the Council submits, the Secretary General of the OAS, in his Declaration of 16 May 2017 on Venezuela, stated that the applicant and the Minister for the Interior led the two institutions accused of having used force in Venezuela and that, in that sense, they were responsible for every aggression, every shot and every death. 77 Furthermore, three press articles in the Council’s file also refer to the use of excessive force in the repression of demonstrations in 2017. First, it is apparent from the article of 29 June 2017, published on the website ‘www.efectococuyo.com’, that the Prosecutor General’s Office issued the applicant with a summons for alleged serious and systematic human rights violations during the 2017 demonstrations in Venezuela through the use of excessive force in the repression of demonstrations. 78 Second, the article of 19 June 2017, published on the website ‘http://eltubazo.com.ve’, refers to the use of firearms by the Bolivarian National Guard to repress a demonstration held on the same day in the Altamira district in Caracas. That article reproduces tweets by the Venezuelan Minister for the Interior, bearing the same date, from which it is apparent that, although he condemned the violence of protesters, he nevertheless acknowledged that, during the demonstration in question, several people had been injured and one person killed by a firearm. He also stated that an investigation had been opened for undue and disproportionate use of force. 79 Third, the article of 20 June 2017, published on the website ‘http://notitotal.com’, refers to 48 people injured at a demonstration on Monday 19 June 2017 in Caracas. It is also apparent from the article in question that the spokespersons for the health centres which received the injured indicated that they had traumas and multiple injuries caused by rubber bullets and that some of them were intoxicated with tear gas. It is true that, as the applicant states, the article of 20 June 2017, published on the website ‘http://notitotal.com’, refers generally to ‘security forces’ and does not explicitly mention the Bolivarian National Guard. However, two elements in the Council’s file make it possible to infer that the reference to ‘security forces’ concerned the Bolivarian National Guard. First, the article published on the website ‘eltubazo.com’, cited in paragraph 78 above, makes clear reference to the involvement of the Bolivarian National Guard in the repression of the demonstration of 19 June 2017. Second, in the article published on the website ‘konzapata.com’ of 30 June 2017 concerning the applicant, reference is made to the use of real bullets against demonstrators on 19 June 2017 and to the subsequent removal of the applicant, the following day, from his duties as Commander of the Bolivarian National Guard. 80 Furthermore, as the applicant states, it is true that the article of 29 June 2017, published on the website ‘www.efectococuyo.com’, and the article of 19 June 2017, published on the website ‘http://eltubazo.com.ve’, refer to other sources of information, namely a press release from the Prosecutor General’s Office and tweets by the Venezuelan Minister for the Interior, respectively. 81 However, it must be noted that, in accordance with settled case-law, the activity of the Court of Justice and of the General Court is governed by the principle of the unfettered evaluation of evidence, and that it is only the reliability of the evidence before the Court which is decisive when it comes to the assessment of its value. Furthermore, in order to assess the probative value of a document, regard should be had to the credibility of the account it contains and, in particular, to the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (see judgment of 26 October 2016, Kaddour v Council, T‑155/15, not published, EU:T:2016:628, paragraph 85 and the case-law cited). 82 In the present case, it should be noted that the press articles referring to other sources of information, mentioned in paragraph 80 above, originate from two different digital sources of information. Moreover, they were published on different dates. In addition, each digital source of information provides different information, despite the fact that all those sources agree, in essence, as to the excessive nature of the use of force by the Bolivarian National Guard acting under the applicant’s authority. 83 The applicant also claims that many press articles relied on by the Council were published in newspapers and on websites supporting the opposition and that they are therefore biased. However, it must be noted that he does not expressly dispute the lack of impartiality of the evidence submitted by the Council concerning the use of excessive force, referred to in paragraphs 75 to 79 above. In any event, that argument of the applicant must be rejected. The applicant has failed to demonstrate that the evidence referred to in paragraphs 75 to 79 above relay incorrect information, with the result that, even if the author had issued a subjective opinion on the facts which he or she set out in that evidence, that does not mean that they have presented those facts untruthfully. 84 As regards the applicant’s arguments alleging that the Council failed to take into account all the relevant factors relating to the use of force, the applicant claims, first of all, that, in order to assess the role of the Bolivarian National Guard under his command, the Council should have taken into account the provisions governing the Bolivarian National Guard, in particular as regards the use of force. He submits, in that regard, that those provisions comply with the relevant international standards, in particular in that they enshrine the principle of the progressive use of force according to the level of resistance and opposition by citizens. 85 However, it is apparent from the file (see paragraphs 75 to 79 above) that the Council did not rely on the provisions regulating the activities of the Bolivarian National Guard, but merely stated that, under the applicant’s command, the Bolivarian National Guard made use, in practice, of excessive force to contain demonstrations organised between 1 April and 20 June 2017. 86 Next, the applicant claims that the Council should have taken into account the fact that, from the beginning of 2016, the then President of Venezuela declared a state of emergency and the fact that, because of the serious social crisis in which Venezuela found itself in 2017, the then President of Venezuela also declared, on 13 May 2017, a state of exception applying to the whole of the Venezuelan territory, in order to preserve internal public order. The applicant also claims that the Council should have taken into consideration the fact that the demonstrations in April and May 2017 had not been authorised. The applicant also submits that the Council should have taken account of the violence of the demonstrators themselves. The applicant refers in particular, in that regard, to the video mentioned in the article of 20 June 2017, published on the website ‘http://notitotal.com’, which shows armed rioters whose violence explains the reaction of the security forces. 87 However, the fact that the then President of Venezuela had declared a state of emergency and that the demonstrations in April and May 2017 had not been authorised cannot justify the fact that the Bolivarian National Guard brutalised unarmed people and fired tear gas, rubber bullets and even real bullets which, according to HCHR, led to the death of 14 demonstrators. Use of excessive force undermines human dignity and constitutes, in principle, a violation of fundamental rights. Even taking into consideration the video in question, as well as other documents in the file revealing the presence of troublemakers among the protesters, the applicant has not established that the demonstrations in question were so aggressive that they could have been controlled only through the use of tear gas, rubber bullets and even real bullets, which caused the death of several demonstrators and injured hundreds of people. 88 In the light of the foregoing, the Council was entitled, without making an error of assessment, to consider that the Bolivarian National Guard, under the applicant’s command, made use of excessive force when maintaining order during civil demonstrations. Accordingly, the Council also did not make an error of assessment in finding that, in the light of the general context of the situation in Venezuela, as described in paragraph 72 above, the applicant had been involved in the repression of Venezuelan civil society and democratic opposition and that he was responsible for serious human rights violations under his command by the Bolivarian National Guard, without it being necessary to examine, in accordance with the case-law cited in paragraph 68 above, the relevance and probative value of the other elements relied on by the Council. 89 That conclusion cannot be called into question by the applicant’s arguments that, when the contested acts were adopted, he no longer held any official position. More specifically, the applicant submits that he ceased to hold the position of Chief of the Capital District Government on 4 January 2018. 90 It is not apparent from the file, nor is it claimed by the applicant, who was specifically questioned on that point at the hearing, that the termination of his various public offices was a decision which he himself took, in response to the infringements of the rule of law and democracy in Venezuela, in order to distance himself from such infringements (see, by analogy, judgments of 26 March 2019, Boshab and Others v Council, T‑582/17, not published, EU:T:2019:193, paragraph 152, and of 12 February 2020, Kande Mupompa v Council, T‑170/18, EU:T:2020:60, paragraph 131 (not published)). Moreover, account must be taken of the very short period of time which elapsed between, on the one hand, the date of 4 January 2018 when the applicant ceased to hold office as Chief of the Capital District Government and, on the other hand, the date of 22 January 2018 when his name was first included on the lists at issue. In those circumstances, the Council could legitimately take the view that the applicant remained associated with the regime which was in power in Venezuela since, during his duties as Commander of the Bolivarian National Guard, he undermined democracy and the rule of law in Venezuela. 91 The foregoing considerations cannot be regarded as involving the creation of a presumption or a reversal in the burden of proof to the detriment of the applicant, contrary to the applicant’s submission. Their significance is simply that the reference, in the grounds of the contested acts, to posts formerly occupied by the applicant, discloses that the Council considered that, for that reason, the applicant remained associated with the regime in power in Venezuela and that the Council was not aware of anything to call that consideration into question (see, by analogy, judgment of 22 April 2015, Tomana and Others v Council and Commission, T‑190/12, EU:T:2015:222, paragraph 167). 92 Consequently, the second plea in law must be rejected and, therefore, the action must be dismissed in its entirety. Costs 93 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs in accordance with the form of order sought by the Council. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Dismisses the action; 2. Orders Mr Antonio José Benavides Torres to pay the costs. da Silva Passos Reine Truchot Delivered in open court in Luxembourg on 14 July 2021. E. Coulon S. Papasavvas Registrar President * Language of the case: English.