On December 18, 1996, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the Inter-American Commission”)
received a petition dated December 16 of that year lodged against the
Republic of Venezuela (hereinafter “the State” or “Venezuela”) by
Rights International, The Center for International Human Rights Law, Inc.
(hereinafter “the petitioner”), based on Article 44 of the American
Convention on Human Rights (hereinafter “the Convention” or “the
American Convention”) and the American Declaration of the Rights and
Duties of Man.
The petition claims that the State violated the following articles
of the American Convention: 5(1) (Right to Humane Treatment); 7(6) (Right
to Personal Liberty); 8 (Right to a Fair Trial); 11(1) (Right to Privacy);
13 (Freedom of Thought and Expression); 24 (Right to Equal Protection);
and 25 (Right to Judicial Protection) in connection with Article 1(1)
(Obligation to Respect Rights), as a result of alleged measures taken
against Messrs. Aldemaro Romero and Aisur Ignacio Agudo, two marine
biologists who witnessed the killing of dolphins and denounced it as
common practice among Venezuelan fishermen. According to the
petitioner’s brief, the above denunciation made to the Venezuelan press
and authorities, as well as to the international press, prompted the State
to take revenge by indicting them and convicting them of the very crime
that they had denounced. This
indictment and conviction on the part of the State caused both to flee the
country with their families. They are currently living abroad.
From its examination of the admissibility requirements, the
Commission finds the petition to be inadmissible in accordance with
Article 46(1)(a) of the American Convention and Article 37 of the
Regulations of the Commission.
II. PROCESSING BY
4. On January 27,
1997, the Commission began to process the case and requested the State for
information on the facts alleged by the petitioner.
On April 2 and May 15, 1997, the State made applications for
extensions of the period for presenting its reply in the instant case.
On July 7 and October 22, 1997, the Commission reiterated to the
State its request for such information as it deemed pertinent, advising it
of the possibility of application of Article 42 of the Commission’s
On October 29, 1997, the State presented its reply (dated October
23 of that year), arguing that it was inadmissible in accordance with
Article 46 of the American Convention.
The petitioner submitted comments on the State’s reply and
information was subsequently received from both parties.
The Commission received the petitioner’s comments and
supplementary information on December 8, 1997 and July 27, 1998,
respectively. The State presented its reply to the petitioner’s comments
on April 22, 1998.
6. On March 2,
1999, in accordance with Article 48(1) of the Convention and Article 45 of
its Regulations, the Commission placed itself at the disposal of the
parties with a view to reaching a friendly settlement of the matter. On
April 26, 1999 the petitioner presented its acceptance of the
Commission’s offer, together with a proposed arrangement which it would
be willing to accept. To date
the State has presented no comments or reply in that respect.
POSITIONS OF THE PARTIES
According to the petition, in February 1993, Dr. Aldemaro Romero Díaz
and Professor Aisur Ignacio Agudo Padrón, two prominent marine
biologists, filmed and photographed Venezuelan fishermen harpooning a
dolphin/porpoise in waters off the state of Sucre.
In the same video the fishermen said it was common practice among
Venezuelan fishermen to use it as shark bait, which led Dr. Romero to
denounce the killing in a press conference on May 6, 1993, where he used
the video as a key piece of evidence to support his claim.
According to the petitioner, on May 11, 1993, the two biologists
sent a letter, together with the video and photographs, to the Attorney
General complaining about the killing of porpoises and suggesting
corrective measures designed to encourage their conservation.
The petitioner adds that in this letter they did not request
punitive measures for the fishermen who appear in the video and that their
efforts provoked scant reaction from the Venezuelan government.
The petitioner says that in October 1993, Messrs. Romero and Agudo
testified before the Environment Commission (Comisión del Ambiente)
of the Venezuelan Congress and presented the video and proposed
conservation measures that they had prepared. On February 2, 1994 the
biologists testified in a court of Carúpano and submitted documents and
evidence regarding the killing of dolphins in Venezuela.
The videotape was later released in the United States and,
according to the petitioner, the Venezuelan Government, embarrassed by the
negative publicity, accused Dr. Romero and Professor Agudo of having
bribed the fishermen and directed them to kill the dolphin, which they
The petitioner claims that the government altered the original
videotape and “took images and dialogue out of context” in order to
support ”trumped up criminal charges alleging that Dr. Romero and
Professor Agudo violated a Venezuelan law” that prohibited the killing
The petitioner says that the alleged victims in this case had been
unable to obtain a copy of the indictment against them until March 22,
1996, when the Embassy of Venezuela in Brazil issued a press release
saying that the alleged victims had violated Article 59 of the Venezuelan
Criminal Statute on the Environment (Ley Criminal sobre el Ambiente).
According to the petition, the Government launched a defamatory
press campaign attacking the activities and scientific reputation of the
two biologists, while the Venezuelan Consulate in Miami, in response to
the huge outpouring of criticism it received, sent out letters saying that
the Venezuelan Government had found evidence that proved “beyond a
shadow of doubt” that the video had been “fabricated and
Venezuelan Minister of Foreign Affairs and the Governor of the State of
Sucre supported this position and the Governor later called for the
biologists to be tried for treason.
The petitioner says that the press in Venezuela, taking their cue
from the Government, have pursued the theory that Dr. Romero conspired
with the United States and Europe, as well as with tuna fishing companies,
to prevent the lifting of the embargo imposed in 1991 by the United States
on Venezuelan tuna. The petitioner also considers that the State’s
persecution violated the freedom of expression of Dr. Romero and Professor
As a result of the foregoing, Dr. Romero and his family started to
receive death threats in Venezuela against them and, on February 19, 1994,
he fled with his family to the United States.
In April 1994 a judge of the State of Sucre issued a warrant for
the arrest of Dr. Romero and Professor Agudo.
On April 12 and 13, 1994, the Venezuelan police visited the home of
Professor Agudo, as well as that of his parents and sisters and made
threats. These threats prompted Mr. Aisur Ignacio Agudo to go into hiding
and, according to the petition, led Professor Agudo’s father to commit
suicide on May 14, 1994. Subsequently,
Professor Agudo’s wife, who suffered from a chronic heart complaint,
died on April 12, 1995, as a result of a decline in her health.
Professor Agudo’s mother and sisters continued to receive threats
until April 1996.
The petitioner also says that the father of Dr. Romero made a
series of attempts to resolve the case against his son and to obtain legal
representation for him in Venezuela; however, these efforts have not
yielded any positive results. The
matter is made worse by the fact that the “Venezuelan courts are beset
with serious problems that stem from corruption and political interference
in the affairs of the judicial system” and cause the system to be
ineffective as well as “corrupt and biased”.
The petitioner claims that prison conditions in Venezuela are
dangerous and the Venezuelan police frequently kill and torture people in
suspicious and inexcusable circumstances, sometimes to obtain information.
Nevertheless, such abuses committed by State officials enjoy
impunity in Venezuela. The petitioner argues that this situation, along
with the threats and partiality of Venezuelan officials, have made it
impossible for the two biologists to defend themselves against the charges
According to the petition, the State has, to the detriment of the
alleged victims violated Articles 5(1) and 11(1) as a result of the false
charges, the official international campaign of defamation, and the
threats against Messrs. Romero and Agudo. The petition also claims that
the State violated Articles 7(6), 8, 24 and 25 by not permitting the
alleged victims equal access to a remedy under domestic law and denying
them their rights of representation, to an impartial and independent
tribunal, and to be presumed innocent; and, finally, Article 13, with
respect to the freedom of expression of the biologists.
As to the exhaustion of domestic remedies, the petitioner says that
the exceptions set forth in Article 46(2) of the Convention are applicable
in this case, since the domestic remedies are ineffective and inadequate
and do not afford due process of law for the alleged victims’ petition
in Venezuela. The reason for
the foregoing is that the petitioner regards it as a proven fact that the
State presumed the guilt of Messrs. Romero and Agudo, refused to notify
them of the charges against them, and denied them the right of defense.
The petitioner adds that if a remedy in a given case is not
effective then it is not necessary to exhaust it and mentions that in the
instant case the impossibility to overcome the obstacles and procedures
that the State used to hamper Dr. Romero render the Venezuelan remedies
insufficient for the case in hand. Even
if Dr. Romero and Professor Agudo were to return to Venezuela, the
petition says, there is a reasonable likelihood that the remedies under
Venezuelan law would be ineffective for protection of the alleged
victims’ rights in this case. The petition further clarifies that the
two are not fugitives but refugees living abroad.
The petitioner holds that in the event of a clear lack of judicial
guarantees and of effective remedies, the Commission, on taking up an
objection asserting non-exhaustion of domestic remedies, may also decide
on the merits at the same time, a situation the petitioner considers
analogous to the instant case.
As for the deadline for presentation of the petition, the
petitioner says that Articles 34(2) and 38(2) of the Commission
Regulations apply because it is not possible to determine a reasonable
period from the date on which the human rights of Messrs. Romero and Agudo
were violated; and there is no court decision from which to measure such a
period. The petitioner adds
that the instant petition is not pending in another international
proceeding for settlement.
The State requests that the petition be found inadmissible because
the facts stated by the petitioners do not tend to establish a
violation of the rights guaranteed by the Convention inasmuch as
they are not true; and for failure on the part of Messrs. Romero and Agudo
to exhaust the remedies under domestic law.
The State says that on January 7, 1994 the Coastguard of the City
of Cumaná, Sucre State, informed the Second Court of First Instance for
Criminal Matters of Sucre Judicial District and the Attorney General’s
Office that a preliminary inquiry had been opened, in pursuance of Article
75(c) of the Venezuelan Code of Criminal Procedure, into an offense
categorized in the Criminal Statute on the Environment (Ley Penal sobre
el Ambiente) in accordance with the Law on Protection of Wild Animals
(Ley de Protección de la Fauna Silvestre), as a result of the
screening of a video made by the Fundación Bioma on the killing of
dolphins on the eastern coast of Venezuela, which was broadcast in the
United States by the television network CNN.
The State says it went on to conduct all the necessary proceedings
in accordance with Article 90 of the Venezuelan Code of Criminal Procedure
in order to prepare a record of the perpetration of the punishable acts.
In the course of the aforesaid enquiry, the fishermen who were
filmed in the abovementioned video gave statements, two of them saying
that the biologists told them they were carrying out a research project
and as part thereof they asked them to harpoon a dolphin for research that
was going to be conducted in Caracas.
Based on the testimony of the fishermen who accompanied Messrs.
Romero and Agudo, the latter were summoned to give statements on February
2, 1994. On March 16, 1994,
further testimony was received that incriminated the alleged victims in
the killing of a dolphin for research. As part of the enquiry, the State says that an expert was
called, who stated that examination of the video showed that the way that
the dolphin was harpooned was not the most suitable and that it could not
be said to be a routine practice of the fishermen.
Based on the foregoing, on April 11, 1994, a warrant was issued for
the arrest of Messrs. Romero and Agudo for incitement to the crime of
hunting and killing a dolphin under Article 59 of the Criminal Statute on
the Environment in connection with Articles 83 of the Criminal Code, and
with Article 287 of said instrument for those who acted in name and as
representatives of the non-governmental organizations Bioma and Fundacetácea.
By the same token two members of the public were prosecuted for
aiding and abetting in the crime of hunting and killing a dolphin.
According to the State, “it is demonstrated that the Venezuelan
biologists hired the fishermen” in order to go out to the sea to take
photographs and film video footage, and later ordered them to harpoon a
dolphin for scientific purposes. The State claims that the petitioners chose an easy and
convenient way of avoiding the charges brought against them and, instead,
opted to discredit the Venezuelan State with false accusations by
pretending to be victims.
The State adds that Messrs. Romero and Agudo lodged the petition
with the Commission without having exhausted the remedies under domestic
law in accordance with Article 46 of the Convention, given that they have
not made use either of the ordinary remedies of criminal procedure, or of
the extraordinary remedies provided by domestic law. Further, since they
intend to evade Venezuelan justice, they have not placed themselves at the
disposal of the authorities for the case against them to be heard and
thereby enable them to pursue the remedies they deem appropriate in order
to uphold their claims.
The State claims that the allegation of threats against the
biologists is utterly false and is intended to justify evasion of justice
and to avoid compliance with the rule of exhaustion of domestic remedies
required in order to appeal to take one’s case before the inter-American
system. The State adds that
under the Venezuelan system of laws there is freedom of expression,
autonomy and separation of powers, and the right to be presumed innocent,
on which basis the biologists cannot claim prejudgment of the case against
them by the Courts.
Furthermore, the State rejects the argument that detainees in
Venezuelan jails are subjected to abuses that violate their physical
integrity and says that defendants in Venezuela are equal before the law
and enjoy the procedural benefits to which they are legally entitled.
Furthermore, the State says that if Messrs. Romero and Agudo should decide
to face justice they may enjoy the procedural benefits provided by
Venezuelan law, as did the other accused in the instant case.
The State also says that in Venezuela prompt and effective remedies
are recognized for the protection of human rights and that the petitioners
have not pursued these remedies because their intention is to evade
justice. Instead, they appeal to the inter-American system seeking to
excuse their domestic obligation when the international law of human
rights reinforces or complements the domestic law, which is why the
obligation of prior exhaustion of domestic remedies exists.
The State holds that in the instant case no human rights have been
violated and that respect has been shown for freedom of expression; for
the moral integrity, personal liberty, honor and dignity of the
petitioners; and for the existence of judicial guarantees, due process,
equality before the law, and the principle of innocence. The State adds
that the petitioners have access to the Venezuelan courts and may pursue
any judicial remedy or measure that they consider necessary.
However, Messrs. Romero and Agudo fled Venezuela of their own free
will and accuse the State of violations that do not exist.
Competence of the Commission
The petitioner claim that the State has violated his rights under
Articles 5(1), 7(6), 8, 11(1), 13, 24 and 25 (Judicial Protection) of the
American Convention in connection with Article 1(1) thereof. The State
ratified the American Convention on Human Rights on August 9, 1977.
The events alleged in the petition lodged with the Commission
occurred after the State ratified the American Convention.
The petition was lodged with the Commission by Rights International, The
Center for International Human Rights Law, Inc, which has the legal
capacity to do so in accordance with Article 44 of the American
Convention. Accordingly, the Commission is competent to take up this
petition in accordance with Article 44 of the American Convention and
Articles 18 and 19 of its Statute.
Requirements for the admissibility of the petition
Exhaustion of domestic remedies
Article 46(1) (a) of the American Convention provides the
Admission by the Commission of a petition or communication lodged
in accordance with Articles 44 or 45 shall be subject to the following
that the remedies under domestic law have been pursued and
exhausted in accordance with generally recognized principles of
the same token, the Convention provides possible exceptions to this rule
in Article 46(2), which states:
The provisions of paragraphs 1.a and 1.b of this article shall not
be applicable when:
the domestic legislation of the state concerned does not afford due
process of law for the protection of the right or rights that have
allegedly been violated;
the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies.
The Commission observes that in the instant case the petitioner
says that Venezuelan law does not provide due process of law and denies
Dr. Romero and Professor Agudo access to an effective domestic remedy to
contest the charges against them, and that, accordingly, domestic remedies
have effectively been exhausted.
The State for its part, rejects these arguments and maintains that
all the remedies needed to resolve this dispute in the domestic sphere are
in place and that the petitioners did not pursue them but, rather,
straightaway instituted an international proceeding.
In that connection, the Commission stresses that it has held
previously that the international protection afforded by the supervisory
bodies of the Convention is of a subsidiary, reinforcing, and
complementary nature designed as a mechanism to strengthen protection of
human rights; and that this nature has been provided for by
the domestic law of the American states. It cannot be assumed that
the Commission is an instance that may take up and decide petitions
regarding alleged violations that have not been taken up and exhausted by
the domestic courts or, by the same token, which are pending a decision in
the respective State.
In the instant case, from the positions of the parties it can be
seen that the alleged victims have not even attempted to pursue the
domestic remedies offered by Venezuelan law. The Commission considers that
the petitioner has not provided sufficient grounds to show that the
exceptions contained in Article 46(2) of the Convention should apply to
it, since in Venezuela there are suitable remedies to protect the rights
that are deemed violated. It has not been demonstrated that the alleged
victims have been denied access to such a remedy or been prevented from
exhausting it, given that they have not attempted to do so. Nor is it
possible to allege unwarranted delay in rendering of a judgment under a
remedy that has yet to be sought.
The Commission recalls that, as it itself has noted in reference to
the European Court, the decisive point is not the subjective fear of the
interested party regarding the impartiality of the court that is to hear
the case, but rather whether the circumstances indicate that his fears can
be objectively justified, given that, in principle, the personal
impartiality of the members of the tribunal must be presumed until there
is proof to the contrary and, in this case, the Commission cannot conclude
that the court’s decisions will be made in a way that is biased and
violates due process. 
For the foregoing reasons, in
casu, the Inter-American Commission accepts the objection of failure
to exhaust domestic remedies presented by the State.
Based on the foregoing, the Commission abstains, since the matter
is rendered moot, from examining the other admissibility requirements
provided in the Convention.
41. The Commission has found that the petition does not meet the requirement provided in Article 46(1)(a) of the American Convention. In consequence, the Commission concludes that the petition is inadmissible in accordance with Article 47(a) of the Convention.
Based on the above factual and legal arguments,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare the
instant case inadmissible.
2. To notify the
petitioner and the State of this decision; and
To publish this decision and to include it in its Annual Report to
the OAS General Assembly.
Done and signed in Washington, D.C., on the 3rd day of the month of October, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman, Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo, Commissioners.
According to the petition, the story regarding this matter was carried
by the television network CNN and newspapers the Wall Street Journal
and the American Journal and that, in consequence, the Venezuelan
Embassy in Washington and the Consulate in Miami received over 20,000
letters from the American public protesting against such actions.
Petition of December 16, 1996, p. 2.
The aforementioned Article 59 provides:
in and destruction of special areas and natural ecosystems.
Any person who hunts wild animals or destroys or causes damage
to resources that provide food or shelter thereto in national parks,
natural monuments, animal refuges or sanctuaries, or natural
ecosystems, shall be sentenced to three (3) to nine (9) months’
imprisonment (arresto) in a
local detention facility and a fine of three hundred (300) to nine
hundred (900) days’ pay at the minimum wage.
sentence shall be doubled and the arresto
changed to imprisonment (prisión)
in a national detention facility when such offenses are committed by
means of fires, chemical substances, unauthorized hunting weapons, or
any other method or instrument that increases the suffering of the
prey; or against animals protected by a hunting ban, populations of
endangered species, or populations that, without being endangered,
become endangered as a result of the offense, regardless of where it
person who, for commercial gain, hunts wild animals or collects
natural products obtained therefrom without the necessary license,
exceeds the permitted hunting quota, or hunts during a close season,
shall be sentenced to nine (9) to fifteen (15) months’ imprisonment
(prisión) in a national
detention facility and a fine of nine hundred (900) to fifteen hundred
(1500) days’ pay at the minimum wage.
The petitioner says that, furthermore, in Miami, USA, he met Mr.
Eduardo Betancourt, who, as representative of the Venezuelan Consulate
in Miami, asked him to surrender himself to the authorities in
Venezuela and informed him of a plan that the State had to kidnap him
and return him to the country for trial.
In light of this information he says he reported the incident
to the FBI.
Some months after that meeting, he met a person who identified
himself as a Venezuelan journalist; however, his enquiries showed that
no journalist with such a name existed, whereupon Doctor Romero again
went to the FBI to report the incident.
Dr. Romero believes the Venezuelan authorities took illegal
measures with the aim of taking him back to Venezuela where his rights
would not be respected.
In that regard, pages 7 and 8 of the petition of December 16, 1996
mention that evidence of this situation has been disseminated by the
United States Department of State, Americas Watch, and the World Bank
on various occasions.
In that respect, the petitioner mentions that the Commission has found
that if the domestic agency that investigates the petition is, rather,
the body responsible for the alleged violations, an exception to the
exhaustion rule would apply. Petition of December 16, 1996, p.13.
The petitioner mentions the Godínez Cruz Case against Honduras and
refers to the UN Human Rights Committee, to different reports of the
Inter-American Commission, and to case law of the European Court of
this connection, the petition mentions the Velásquez Rodríguez Case
against Honduras. Petition of December 16, 1996, p.16.
On December 5, 1995, the Second Court of First Instance for Criminal
Matters of the Judicial District of the State of Sucre sentenced the
fishermen who accompanied the biologists to six months imprisonment in
a national detention facility for their part in the crime and ordered
the execution of the sentence. They were later released on parole.
In respect of this point it should be emphasized that at the time of
ratifying the American Convention Venezuela made a reservation as
regards Article 8(1), insofar as Article 60(5) of the Constitution of
the Republic of Venezuela establishes that persons accused of an
offense against the res publica
may be tried in absentia,
with the guarantees and in the manner prescribed by law. Such a
possibility is not provided for in the aforementioned Article 8.
See paragraphs 21, 22 and 23 of the instant report.
paragraphs 30-34 of the instant report.
See: Resolution 29/88, Case No. 9260, Jamaica, September 14, 1988;
No. 11.673, Argentina, October 15, 1996; and Report No. 88/99, Case
No. 12.013, Paraguay, September 27, 1999.
See Report 82/98,
Case 11.703, Gustavo Gómez López against Venezuela, September 28,
1998, paras. 21-24.