138. On December 29, 2003 the Inter-American Commission on Human Rights (hereafter “the Inter-American Commission” or “the IACHR”) approved the Report on the Situation of Human Rights in Venezuela (“the report” or the “report on Venezuela”). In that report, the IACHR focused on issues relating to the administration of justice and human rights, civil society, state security, the right to life and to humane treatment, the freedom of expression and thought, and trade union freedoms. Pursuant to the powers conveyed on it by statute and convention, the Commission issued a series of recommendations intended to assist the Venezuelan State in its obligation to ensure the full enjoyment of the rights and freedoms protected by the American Convention on Human Rights (“the American Convention”) for persons subject to its jurisdiction.
139. On April 15, 2004 the Bolivarian Republic of Venezuela (“the State” or “Venezuela”) submitted to the IACHR its observations on the report on the human rights situation in that country. On November 5, 2004 the IACHR requested the State to provide information on its compliance with the recommendations contained in the Report. On December 7, 2004 the State responded to that request, providing additional information on the political situation in the country, and at the same time indicating that the report presented by the State to the IACHR in April 2004 provided adequate substantiation of the steps taken in the areas noted by that inter-American organ in its report. In its reports to the IACHR, the State has maintained that the IACHR's recommendations as well as the analysis of various issues addressed in its 2003 report constitute an infringement of Venezuelan national sovereignty. The Inter-American Commission will address its concern on this point in the present section of this follow-up report.
140. On January 18, 2005, the IACHR approved a Draft Follow-up Report and duly transmitted it to the State, giving it a period of one month to present any observations it might wish to make. On February 9, 2005, the commission received the State's observations on this draft. On February 22 the State made an oral request for an extension of the time limit in order to submit additional information to the response it had sent on February 9, 2005. On February 23, 2005 the commission advised the State that, pursuant to Article 57.2 of its rules of procedure, it could not grant the requested extension.
141. In the introductory sections to its Report, the IACHR devoted a full section to outlining the legal framework for the protection of human rights in the country, and to reviewing the situation of political polarization that affected Venezuelan society during the years 2002 and 2003.
142. The response of the Venezuelan State of December 7, 2004 indicates that the political and social tensions arising from the polarization noted by the Commission in its report have diminished considerably, due to ratification of the mandate of President Chavez through the consultative referendum held on August 15, 2004 and through the elections. The State also indicated that this process has encouraged national reconciliation.
143. In its press release no. 23/04 of October 28, 2004 the IACHR hailed the positive aspects of the massive public turnout for the referendum held on August 15, 2004, which proceeded for the most part peacefully. The IACHR welcomes the efforts both of the State and of Venezuelan society to seek channels of dialogue in order to achieve respect for tolerance and political pluralism, essential to guaranteeing the functioning of democratic institutions within a framework of respect for human rights.
144. Despite the foregoing, since the publication of its report on Venezuela, the IACHR has noted that the political situation in the country has been marked by intense public manifestation over the presidential mandate referendum. During this time the IACHR was informed of growing tensions and polarization between opposition sectors and the government. This was evident in the events surrounding the process of verifying and validating signatures collected by the National Electoral Council (CNE), as well as in the charges voiced by senior government officials and the President himself about instances of "mega-fraud", and in the wave of peaceful street protests in some of which there were acts of violence involving the disproportionate use of force by the security apparatus responsible for public safety. Subsequent to the ratification of President Hugo Chavez' mandate through the referendum process, the Commission was informed of a period of social impasse and of realignment among the various political players. In this context, the IACHR is alarmed at the assassination of Inspector Danilo Anderson on November 18, 2004, the persistence of extrajudicial executions by alleged paramilitary groups operating in various regions of the country, and the complaints received over an alleged increase in acts of harassment through public denunciations of political dissidents or of persons dedicated to keeping watch over State actions by filing complaints of human rights violations. As well, the year covered by this follow-up report has seen the approval of legislative bills containing articles that could conflict with international parameters for the protection of human rights.
145. A source of major concern to the IACHR has been the continuing statements by various state authorities disavowing the inter-American system for the protection of human rights. In its reports in response to the IACHR, the State has consistently maintained that the recommendations of that inter-American organ and the analysis of the various issues contained in its report on the situation in Venezuela run counter to "national sovereignty and reflect an interventionist concept of the organs of the inter-American system of human rights that lacks any legal foundation […]".
146. The Venezuelan State considers that the precautionary measures granted by the IACHR and the recommendations contained in its reports on the situation of human rights in any state are not binding on the internal organs of government.
147. Moreover, the State has questioned the legitimacy of the provisional measures granted by the Inter-American Court of Human Rights ("the Inter-American Court") in light of constitutional provisions that "convey sovereign powers exclusively upon the public authorities". Thos provisions have been interpreted in the doctrine issuing from decision 1942 of the Constitutional Chamber of the Supreme Court of Justice of the Nation, which is "of mandatory observance for the Republic" and which, in the opinion of the State, has the final say on matters including the interpretation of the American Convention.
148. As indicated in its report on Venezuela, the inter-American Commission finds that the jurisprudential thrust of that ruling, together with the corresponding arguments of the State, represent positions incompatible with the terms of the inter-American system for the protection of human rights, because they deny recognition of the international obligations assumed by Venezuela as a state party to the American Convention since 1997, and its duty to act in good faith with respect to the decisions of international bodies, especially in the field of human rights.
149. On this point, the Inter-American Court has held that:
In accordance with the principle of good faith, embodied in the aforesaid Article 31(1) of the Vienna Convention, if a State signs and ratifies an international treaty, especially one concerning human rights, such as the American Convention, it has the obligation to make every effort to apply the recommendations of a protection organ such as the Inter-American Commission, which is, indeed, one of the principal organs of the Organization of American States, whose function is “to promote the observance and defense of human rights” in the hemisphere (OAS Charter, Articles 52 and 111).
150. The State refuses to recognize the binding nature of the decisions of international human rights bodies and conditions their enforcement in Venezuela upon an assessment of whether they are contrary to the Constitution, and it argues that this must be determined in the final analysis by the Constitutional Chamber of the Supreme Court of Justice of that country. The IACHR considers that the State's position is incompatible with the principles prevailing in international law and conflicts with the intrinsic purpose of the inter-American system for the protection of human rights, since it maintains in effect that states can decide at their own discretion when and how to comply with a decision from the oversight bodies of the system.
151. The Inter-American Court has clearly indicated that states cannot invoke domestic law in order to evade their international obligations. In contentious cases, it has ruled that if a state were able to use its discretionary power to decide which matters the Inter-American Court may hear, this would amount to open disregard of the powers granted by treaty to that tribunal, and would annual its effectiveness de facto. With respect to the discretionary power of a state party, the Court has declared:
Moreover, accepting the said declaration in the manner proposed by the State would lead to a situation in which the Court would have the State’s Constitution as its first point of reference, and the American Convention only as a subsidiary parameter, a situation which would cause a fragmentation of the international legal order for the protection of human rights, and which would render illusory the object and purpose of the Convention.
152. Moreover, it must be noted that the Constitution of the Venezuelan State gives constitutional supremacy over domestic law to international treaties signed by the State, when the application of such treaties would go further in guaranteeing the pro homine principle. On this point, Article 23 of the Venezuelan Constitution provides that:
The treaties, pacts and conventions relating to human rights which have been executed and ratified by Venezuela have a constitutional rank, and prevail over internal legislation, insofar as they contain provisions concerning the enjoyment and exercise of such rights that are more favorable than those established by this Constitution and the laws of the Republic, and shall be immediately and directly applied by the Courts and other organs of the Public Power.
153. Article 31 of the Constitution of the Venezuelan State, for its part, establishes that:
Everyone has the right, on the terms established by the human rights treaties, pacts and conventions ratified by the Republic, to address petitions and complaints to the intentional organs created for such purpose, in order to ask for protection of his or her human rights.
The State shall adopt, in accordance with the procedures established under this Constitution and by the law, such measures as may be necessary to enforce the decisions emanating from international organs as provided for under this article.
154. Nevertheless, as the IACHR noted in its report on Venezuela, the Supreme Court of Justice of that country has ruled, in its judgment 1942 of June 15, 2003, that:
If an international body, accepted legally by the Republic, were to accord protection to someone violating the human rights of groups or individuals within the country that decision would have to be rejected even if it were issued by international bodies for the protection of human rights. It is possible that if the Republic acts in this way it will be subject to international penalties, but that would not be grounds for the measures or rulings issued by those bodies to be enforced in the country, if they would violate the Constitution of the Republic and the rights that it guarantees.
In the end, Article 19 of the Constitution guarantees to all persons the enjoyment and exercise of human rights, and all organs of government are bound to respect them in accordance with the 1999 Constitution, the human rights treaties signed by the Republic, and Venezuelan laws, provided that these instruments do not conflict with the constitutional principles on human rights, or offend the fundamental principles of the Constitution.
This Chamber considers that for purposes of Article 7 of the Constitution there is no jurisdictional body higher than the Supreme Court of Justice, unless the Constitution or the law so indicates, and that even if that were the case a decision that contradicts Venezuela's constitutional rules lacks applicability in the country, and is so declared.
155. The IACHR reiterates its concern with the thrust of this jurisprudence of the highest court of Venezuela and it emphatically rejects the corresponding arguments of the Venezuelan State. The IACHR considers that those arguments are incompatible with international law and with the American Convention itself, because the oversight bodies of the inter-American system, consistent with the various powers and mandates granted them by the American Convention, have the duty and the specific function of ensuring that the provisions of that treaty are observed and enforced adequately in domestic jurisdiction. In this respect, pursuant to Articles 1 and 2 of the American Convention, states parties must see that their domestic legislation and practices guarantee the full exercise of human rights for all persons subject to there jurisdiction, with no discrimination.
156. The Inter-American Court recently ratified this position in a decision on precautionary and provisional measures in which it declared:
The ultimate purpose of the American Convention is the effective promotion of human rights and, in compliance with the obligations contracted by virtue of that Convention, states must give useful effect (effect utile) to its provisions, which means that they must implement and comply with the resolutions issued by its oversight bodies, either the Commission or the Court.
157. The position of the State with respect to the inter-American system has resulted in its failure to comply fully with the precautionary and provisional measures ordered respectively by the IACHR and the Inter-American Court. In the cases of provisional measures granted for “Liliana Ortega et al.”; “Luis Uzcátegui”; “Luisiana Ríos et al. (RCTV)” ; “Marta Colomina and Liliana Velásquez”; “Eloisa Barrio et al.”; “El Nacional and Así es la Noticia”, and “Carlos Nieto Palma et al.”, the protective measures granted by the State to date have not fully complied with the Inter-American Court's order. In failing to comply fully, the State has placed in peril the life and personal integrity of each of the beneficiaries of those protective measures. In this respect the IACHR urges the Venezuelan State to take the protective measures necessary to safeguard the physical integrity and life of the persons under threat, within the time and manner decreed by the Inter-American Court.
158. It must also be noted that since the IACHR's in situ visit to Venezuela in 2002 of the State has yet to give its consent for follow-up visits. The Venezuelan government had declared its willingness to have the IACHR conduct monitoring activities both during that investigation visit and subsequently, through correspondence addressed to the Rapporteur for Venezuelan affairs, Commissioner Dr. Paulo Sergio Pinheiro. Follow-up visits constitute an important mechanism for deepening the Inter-American Commission's dialogue with the authorities and with Venezuelan society. For this reason, the IACHR reiterates its offer to cooperate with the State and with Venezuelan society as a whole in order to help strengthen the defense and protection of human rights within a democratic context of institutional legality.
159. Finally, the Inter-American Commission observes that during 2004 the political and social situation in Venezuela was characterized by endemic problems that were analyzed in the report on that country and that could continue to undermine full respect for human rights of the persons subject to the jurisdiction of the Venezuelan State. In the following sections the IACHR will analyze compliance with the recommendations made in each of the chapters of its report on Venezuela, To that end, it will incorporate the relevant information presented by the State in its responses of April and December 2004, as well as the information received from various sectors of Venezuelan society.
I. THE ADMINISTRATION OF JUSTICE AND HUMAN RIGHTS
160. In the chapter on the administration of justice and human rights, the IACHR examined the independence and impartially of the judicial organs, issues of special concern for guaranteeing the accessibility and enjoyment of the right to justice for all the inhabitants of Venezuela. With respect to the independence of the judiciary, the Inter-American Commission referred to the temporary or "provisional" nature of most judges' appointments, and to the composition of certain judicial institutions. On the effectiveness of the courts, it pointed to the high rate of impunity as a factor that undermines public confidence in those institutions, and has encouraged a resurgence of crime and violence. The IACHR also examined issues relating to the enforcement of decisions of the inter-American system, and the impact on the administration of justice.
161. Among its observations on the independence and impartiality of the courts, the Inter-American Commission expressed its concern over certain provisions of the draft Organic Law of the Supreme Court of Justice, for the negative implications they could have for the independence of the Venezuelan judiciary. In its report the IACHR referred to the increase in the number of Supreme Court justices; the granting of powers to the National Assembly whereby it can increase or decrease, by an absolute majority vote, the number of judges in the different chambers of the Supreme Court; and the empowerment of the Assembly to decree by a simple majority vote the revocation of Supreme Court justices’ appointments.
162. While recognizing that the problem of provisional tenure for judges long predates the current Government of Venezuela, these problems have deepened and expanded since it embarked on a process of judicial restructuring. The IACHR noted with concern that the constitutional transition regime went beyond the normal and proper time limits and included provisions with a legislative content that exceeded the scope of a transitory regime. With respect to the holding of competitive examinations for the appointment of justice officials, the IACHR welcomed the Supreme Court’s interest in improving these professional examinations, but voiced its concern regarding their suspension, because that measure would further delay the process of reversing the provisional status of Venezuela’s judges.
163. The Inter-American Commission also pointed out that a high percentage of the human rights violations described in its report involved impunity, generated by the Venezuelan State’s failure to observe its obligation of preventing and investigating crimes and punishing the guilty. The IACHR found that the State had been slow to fulfill its duty of investigating crimes and punishing the guilty in a great number of cases.
164. Another aspect of negative impact noted in the report was the existence of certain constitutional and legal provisions that encourage impunity. One illustration of this is the provision for “Preliminary Merit Hearings” prior to impeachment of Generals and Admirals of the National Armed Forces, set forth in Article 266(3) of the Constitution.
165. The Inter-American Commission also referred in its report to the Venezuelan State’s failure to comply with the international commitments it has assumed in cases decided within the inter-American system. It noted as well the repeated failure of that State to enforce the precautionary measures granted by the IACHR, as well as the provisional measures granted by the Inter-American Court.
166. In light of these concerns, the Inter-American Commission issued the following recommendations to the Venezuelan State:
1. Immediately, and in compliance with its domestic law and its international obligations under the American Convention, further and hasten the process aimed at terminating the provisional status of most of its judges, thus guaranteeing their tenure in their positions, which is a necessary condition for ensuring judicial independence.
2. Take the steps necessary to guarantee the autonomy and independence of the different branches of government. In particular, the Commission recommends appointing the top authorities of the judicial and citizens’ branches, closely following the procedure set forth in the Constitution and adapting to that end the provisions of domestic law to the precepts contained in the new Constitution.
3. Adopt planned policies in the short, medium, and long terms in order to eliminate or minimize situations of impunity, which constitute violations of various human rights and can trigger the international responsibility of the State. In connection with this, the Inter-American Commission reiterates its concern regarding the impunity that exists in Venezuela. The IACHR again states that leaving numerous individual crimes unpunished has an impact on the nation and its culture, affecting not only the victims of human rights violations or other crimes, but also society in general.
4. With reference to the events of April 2002, and also with regard to the actions of the death squads, the Inter-American Commission emphatically reminds the State that it is obliged to conduct a serious investigation of those incidents, to punish the guilty in firm and final judgments, to indemnify the victims of those violations, and in so doing to provide the witnesses and the victims relatives with all due protection.
5. Organize and immediately grant sufficient resources to the Public Prosecution Service, in order to implement, at the national level, a program for the protection of victims, witnesses, and prosecutors of the Public Prosecution Service. Modify the institutional structure of the Criminal, Scientific, and Criminalistic Investigations Corps in order to guarantee the independence of its actions.
6. As regards the cases on which the inter-American system has ruled, the IACHR urges the Venezuelan State to implement, clearly, seriously, and effectively, the recommendations served by the Inter-American Commission on Human Rights in the cases decided and to comply immediately with the judgments of the Inter-American Court of Human Rights in the Caracazo and El Amparo cases. With specific reference to the Caracazo case, the Venezuelan State must comply with the provisions of the finalized reparations judgment issued by the Court on August 29, 2002, as regards the monetary and nonmonetary indemnification of the victims and bringing its law-and-order plans into line with international human rights law. The IACHR also reiterates that the Venezuelan State must comply with its precautionary measures and with the provisional measures granted by the Inter-American Court.
167. With respect to the topic analyzed in this chapter, the Venezuelan State referred to six main points: reorganization of the judiciary, executive directives to the judges, competitive examinations, the provisional tenure of justice officials, impunity, and modernization of the judiciary.
168. In the first place, the State referred to the continuity of the constitutional transition regime. It reported that as part of this process the Commission on the Functioning and Restructuring of the Judicial System was created, with duties in the area of judicial discipline, which exercised administrative oversight over the judiciary for a period of seven months. Those temporary responsibilities for judicial administration ceased when the Supreme Court of justice created the Executive Directorate of the Magistracy, which was to exercise the functions of direction, governance and administration over the judiciary, by delegation.
169. With the creation of that Executive Directorate, the Commission on the Functioning and Restructuring of the Judicial System was left solely with disciplinary functions. Consequently, the institutions created during the reorganization of the Venezuelan judiciary, and their underlying legislation, were abolished. At the present time only the Commission on the Functioning and Restructuring of the Judicial System remains active, with functions limited to exercising disciplinary control over the judges of the Republic. That Commission is to continue this function until the National Assembly issues the Code of Ethics for Venezuelan Judges, which will govern all aspects of judicial discipline.
170. In the second place, the State reviewed the process of holding competitive examinations for the appointment of judges. In late 2000 the Commission for Evaluation and Competitive Examinations for Permanent Appointment to the Judiciary announced the holding of competitive examinations in late 2000 for a total of 771 positions, and established as the primary goal that “all judges should be tenured”. According to data provided by the State, by the end of 2002, as a result of these competitions, 95% of judges of the criminal courts of appeals and 75% of those in the higher civil and labor courts were filled by persons appointed through competition. Over that same period, competitions were announced for judgeships in the municipal courts of Metropolitan Caracas and the States of Miranda and Vargas, and for the criminal courts (oversight, trial and execution) in the States of Lara, Portuguesa, Yaracuy, Barinas, Bolívar, Amazonas, Apure, Delta Amacuro and Guárico. The State reported that during this process 70 positions were filled, and competitions were pending for 59 vacant positions.
171. The State also provided information on the efforts of the judicial authorities to modernize the administration of justice in accordance with the new constitutional order, the goal of which is to ensure that all persons have access to justice, and in this way to achieve effective judicial oversight. Among the achievements of the modernization process, the State reported that all courts, as well as the Autonomous Units of the Judiciary, were now equipped with computers, that computer networks had been installed in the country's criminal justice offices and in the Courthouses of Ciudad Bolivar, Barquisimeto and La Asuncion, and that they had been remodeled to adapt them to the new organizational structure. In its brief of February 9, 2005, the State reported that the Supreme Court of Justice was taking steps to provide human rights training for judges, with the support of the Kingdom of Norway, Amnesty International, the United Nations Development Program, and the Norwegian firm Statoil.
172. The IACHR welcomes the State’s response, in which it advises that the institutions created under the constitutional transition regime and, in particular, the Commission on the Functioning and Restructuring of the Judicial System, have transferred some of their functions to permanent constitutional and legal bodies such as the Executive Directorate of the Magistracy. Nevertheless, the Commission on the Functioning and Restructuring of the Judicial System continues to exercise other functions, such as the disciplining of judges. According to the State's response, those functions will continue until the promulgation of the law adopting the code of ethics for judges. Although the Supreme Court of Justice introduced a draft "Code of Ethics for Venezuelan Judges" in the National Assembly on July 3, 2001, that bill had not been approved as of the date of this report, despite express reference to it in the Organic Law of the Supreme Court. The IACHR reiterates the need to replace the transitional regime by a permanent constitutional regime governing the disciplinary powers of justice officials. Consequently, the Inter-American Commission calls upon the Venezuelan State to take steps to give priority to consideration of this draft law.
173. The IACHR observes that the establishment of a normative framework governing the powers and obligations of constitutionally established institutions is an appropriate measure for the free exercise of State power and for preventing arbitrariness in the actions of public officials. The adoption of an Organic Law governing the powers and organization of the Supreme Court of Justice is a sign of progress in establishing a normative constitutional framework, and a step forward in abandoning the provisional status of the transition regime.
174. Nevertheless, it must be noted that the Organic Law on the Supreme Court of Justice approved by the National Assembly takes no account of the concerns expressed by the IACHR in its report over possible threats to the independence of the judiciary. in effect. The rules on the appointment, removal and suspension of judges lack adequate provisions to prevent other branches of government from affecting the independence of the Court, or to avoid situations where narrow and ad hoc majorities might decide its composition without first consulting society in a broad and transparent debate.
175. The election of judges, which in principle is supposed to be done by a qualified majority of two-thirds of the Congress, can be done by a simple majority of that body, which eliminates the requirement for broad political consensus to elect judges. On the other hand, the law creates grounds for removal and suspension of judges that compromise the independence of the court.
176. Articles 264 and 265 of the Venezuelan Constitution seek to guarantee the independence of judges of the Supreme Court by establishing a term of 12 years, and a procedure for removal that requires a two-thirds majority vote of members of the National Assembly, following a declaration of "grave offense" by the Citizens' Branch. The Organic Law amends that provision in part. Although the Organic Law of the Supreme Court of Justice requires a two-thirds majority vote of members of the National Assembly, it creates new mechanisms whereby judges can be removed without such majority, through the suspension of the judge pending a vote to confirm his removal and to cancel his appointment.
177. Article 23(3) of the Organic Law provides that, once the Citizens’ Branch has unanimously ruled a judge’s actions as constituting "grave offense", that person will be suspended from office until a definitive decision is taken by the National Assembly. The law establishes that the President of the National Assembly must convene a session to vote on the removal within 10 days. Nevertheless, the Assembly regularly disregards that time limit, and there are no effective mechanisms in place to enforce it. Consequently, if the president of the Assembly decides not to submit the question to a vote, the judge will find himself suspended indefinitely. The Inter-American Commission considers moreover that the definition of "grave offense" includes highly subjective categories such as: a judge’s refusal to disqualify himself in a specific case; acting in a manner that brings the judiciary into disrespect; abusing or exceeding his authority; including fictitious facts in his decisions, or excluding true facts; or violating any of the prohibitions established in the Constitution and in legislation.
178. According to the Organic Law, the National Assembly also has the power to cancel the appointment of judges by a simple majority vote, if "the judge provided false information at the time he was elected to the Court"; if "the public attitude of the judge offends against the dignity or prestige of the Supreme Court or any of its members"; or if "the judge impedes the functioning of the judicial branch".
179. The IACHR has received information that this Law is being applied retroactively to judges elected before it was issued. This was the case with Judge Franklin Arrieche, who was dismissed on June 15, 2004 by the National Assembly after it canceled his appointment, which was made in 2000. The Inter-American Commission was informed that public statements by members of the National Assembly indicating that Judge Arrieche was dismissed because he wrote the judgment of August 14, 2002 acquitting four soldiers charged with mutiny during the events of April 2002.
180. These provisions of the Organic Law of the Supreme Court of Justice also appear to have helped the executive manipulate the election of judges during 2004. The IACHR learned of complaints filed from various quarters, including law faculties, international observers and opposition forces, to the effect that a simple majority of the National Assembly, composed of government supporters, had arranged to the election of judges to "pack" the Supreme Court with a clear government majority. As a result, the 49 judges (17 full judges and 32 alternates) elected were politically sympathetic to the government, and they included among their number two judges who are sitting parliamentary members for the government majority. According to the complaints, the simple majority of the government party in the National Assembly began its manipulation of the election by creating the list of 158 candidates evaluated by the Candidacies Commission and by the Citizens' Branch. It impeded negotiation of a consensus with other political factions in the Assembly, and reserved the possibility of freely electing magistrates in the third legislative session.
181. There were also complaints that constitutional and legal rules were violated in the election procedure and that judges of the court were given little part in the legislative discussion, despite their constitutional right to intervene in the National Assembly. Organized civil society was also prevented from participating, as were the various professional groups and associations representing the judicial system.
182. The IACHR finds consequently that both the procedure and certain of the grounds for removal, suspension and cancellation of appointment of judges of the Supreme Court take liberties with constitutional provisions and could undermine the independence of the judiciary vis-à-vis the other branches of government.
183. The Inter-American Commission urges the State to amend the clauses of the Organic Law of the Supreme Court of Justice that compromise the independence and impartiality of the Court. The Commission believes that the Court, as mandated by the Constitution, should have an active role in the discussion of such amendments, and that there should be broad debate of the matter that allows all interested sectors of society to participate.
184. With respect to competitive examinations, the Venezuelan state informed the IACHR that "for purposes of self-evaluation and to identify the weaknesses in these processes, the Plenary Chamber of the Supreme Court of Justice decided, by resolution of May 6, 2003, not to hold new examinations". At the time this report was adopted, the Inter-American Commission had received no notice that the missing examinations have been held. As to the provisional appointments of judges, the State declared that "the alleged provisional nature of more than 80% of the judges in the Venezuelan judicial system is totally contradicted by the competitive examinations that began at the end of 2000, as was amply demonstrated in the preceding point."
185. The IACHR considers that if the judiciary is to serve effectively as a body for the supervision, guarantee and protection of human rights it must be independent and impartial. The Inter-American Commission has pointed out in previous reports that the situation of provisional tenure for a high percentage of judges "conspires gravely against the independence and autonomy of the judiciary vis-à-vis the political power."
186. The Inter-American Commission noted with concern in its 2003 report that, according to various sources consulted, more than 80% of Venezuelan judges were "provisional". In the meantime the Commission has received additional information indicating that the situation has not changed substantially to date. In its brief of February 9, the State cited information from the General Director of Human Resources, Executive Directorate of the Magistracy, admitting that only 18.30% of judges are tenured and that 81.70% of provisional status.
187. In its responses to the IACHR, the State claimed that the problem of provisional tenure for Venezuelan judges is a historic one that predates the current constitution. To modify the provisional status of judicial positions, the State argues that measures have been adopted since the constitutional change to restructure the judiciary, including the professionalization of judges and the holding of competitive examinations for admission into the judicial career.
188. The Inter-American Commission takes note of the information provided by the State, in which it indicates that competitive examinations are being held to fill some of the positions in the criminal courts of appeal, and the higher civil and labor courts, the municipal courts, and some of the criminal courts. Yet the IACHR must reiterate its concern over the suspension of competitive examinations for the appointments of career judges, as a result of which the process has remained paralyzed. Although the Supreme Court resolution creating the National Magistracy School accepts this fact and proposes a new mechanism that would operate through that school, no specific dates have been established for this purpose. In November 2004, the State confirmed the Inter-American Commission's concerns when it declared that:
With respect to the Commission's recommendation dealing with the provisional tenure of judges, the fact that more than 80% of judges in Venezuela are provisional is indeed one of the most serious problems facing the judiciary. The proper administration of justice requires independent, autonomous, honorable judges with broad knowledge of the legislation they must apply. Aware of this problem, the Supreme Court of justice has created the National Magistracy School with a view to training judges in the near future who will have a profile consistent with the modernization now underway.
189. In the absence of competitive examinations, the Supreme Court has continued to appoint provisional and temporary judges through the Judicial Commission. This is clear from various resolutions of the Supreme Court: for example, Resolution 2003-0271 of October 27, 2003 appointed 114 persons, most of them on a temporary basis.
190. This situation occurred again in 2004, when Resolution 2004-0140 appointed 37 persons to serve as temporary judges in various courts. According to information from the Supreme Court of Justice provided to the Inter-American Commission, between December 15, 2003 and November 15, 2004 there were 164 judges appointed by the Judicial Commission, even though the competitive examinations had been suspended.
191. The IACHR reiterates that the high percentage of provisional judges seriously undermines the right of the citizenry to the proper administration of justice, and vitiates the right of magistrates to tenure in their position as a guarantee of their independence and autonomy. The Inter-American Commission also notes with concern that, since May 6, 2003, the appointment of magistrates selected through competition, who would thereby have guarantees of stability allowing them to exercise their functions independently and impartially, has been suspended. The practice of appointing temporary judges contracted for three months does not provide for the stability necessary to safeguard judicial personnel against possible interference or pressure in the conduct of their duties.
192. Provisionally appointed justice officials also lack labor and professional guarantees. The Inter-American Commission learned of a female judge who was dismissed by the Commission on the Functioning and Restructuring of the Judicial System for an alleged grave irregularity in the performance of her duties. She appealed the ruling to the Supreme Court of Justice, which accepted her arguments and quashed her dismissal. Nevertheless, because she was a "provisional" judge, it refused to order her reinstatement and to award her compensation for damages, on the grounds of her provisional status and the existence of "a process of judicial restructuring whereby all judicial appointments are subject to public competition." That decision would suggest that provisional judges are deprived of the most elemental guarantees of stability and protection, which severely impairs not only their professional rights as public officials but also the rights of the citizenry to impartial justice free of pressure.
193. On the issue of impunity and its impact on Venezuelan society, the State presented judicial statistics on matters resolved by the criminal justice system in the supervisory and trial courts of first instance and in the courts of appeals. That information covered cases actually heard, but it made no reference to the overall crime figures, which would shed further light not only on the percentage of complaints presented but also on public confidence in the justice system. Nor did it indicate the total number of complaints submitted to the Attorney General’s Office or the percentage of those complaints that were actually investigated.
194. The Inter-American Commission also received reports that private citizens were being tried by military courts. According to the Venezuelan Program of Education-Action in Human Rights (PROVEA), more than 100 civilians have been subjected to military trial since October 2003. Notable among these cases are persons accused of being Colombian paramilitaries, several retired soldiers accused of disobedience, two persons who were surprised with military equipment at the Fuerte Tiuna, and the journalist Patricia Poleo.
195. The IACHR considers it timely to reiterate its doctrine that military justice is applicable only to military personnel who have committed crimes in the course of their duty, and that military tribunals lack the independence and impartiality needed to try civilians. The Inter-American Court has confirmed that "in a democratic and constitutional state that jurisdiction must be of restrictive and exceptional scope and must be designed to protect special juridical interests related to the functions assigned to the military forces by law. Thus, they should try only military personnel for the commission of crimes or offenses that by their nature are damaging to juridical goods of a military kind."
196. On this point, the IACHR calls upon the Venezuelan State to take immediate steps to transfer to civilian jurisdiction all those cases now before the military justice system that do not exhibit the exceptional characteristics described by the Inter-American Court.
197. In its report on Venezuela, the IACHR pointed with concern to the impunity surrounding a great number of cases of human rights violations. This situation has undermined society's confidence in the justice system and has led to a resurgence of violence, producing a vicious circle of impunity and violence. The Inter-American Commission found that the State was slow in fulfilling its duty to investigate crimes and punish those responsible in many cases. The Inter-American Commission also noted its concern over the activities of certain state agencies that were tending to institutionalize impunity. To address this problem, the Inter-American Commission urged the State to give priority to the necessary measures for overcoming the situation of persistent impunity and for guaranteeing the impartial and effective administration of justice.
198. The Commission must once again reject the State's response, cast in the following terms:
With respect to the adoption of policies to reduce or eliminate situations of impunity that imply violations of various human rights and that might generate responsibility for the Venezuelan State, we consider this a further interference in the internal affairs in Venezuela, and incompatible with due respect for our sovereignty.
199. The Commission reiterates that the international obligations freely assumed by the Venezuelan State impose on it the obligation to try and convict all persons guilty of crimes that affect the rights protected by the American Convention. That obligation requires the trial and conviction of those who plan as well as those who carry out crimes. As the IACHR has stated:
Impunity gives rise to international responsibility on the part of the State; this applies even to crimes committed by common criminals who are not state agents when the State does not meet its international obligation of pursuing a serious, impartial, and effective investigation into the incident with the aim of punishing the guilty. This omission also places the State under the obligation of indemnifying the victims or their next-of-kin for the violation of their human rights implied by the State’s failure to provide a proper investigation of the incident, irrespective of whether or not the perpetrators were state agents.
200. The Commission has repeatedly referred to the impunity that has marked occurrences of national significance and that directly affects the community's confidence in the justice system, and prevents the effective rule of law. The Commission notes in this connection the efforts of the Attorney General’s Office in the investigation that led to the conviction of a person charged with the killing of Numar Herrera near the Plaza O'Leary on May 1, 2003. It also recognizes the progress that has been made in investigating the events at the Plaza Altamira on December 6, 2002, under which two officials of the Military Intelligence Department were ordered to stand trial for homicide. The IACHR is following this case with interest and it requests the State to provide timely information on the steps taken.
201. Other cases of national importance, however, are still at the initial procedural stage, and in some cases there has been no investigation or procedural activity at all. In the events of April 11 and 14, 2002, the Inter-American Commission notes with concern that there has been no progress in the Attorney General’s investigation, nearly three years after the events, and that it is still at the initial stage. The IACHR has been informed that the committee appointed by the Attorney General’s Office to conduct this investigation, and also to investigate the events of February 2004, has made no significant progress in its work because it lacks experience in matters affecting human rights.
202. With respect to impunity for the murders of socially disadvantaged persons and those committed by the so-called "paramilitary groups" or death squads, there is no evidence of significant progress in eradicating impunity.
203. In this context, the Inter-American Commission urges the State to give priority to measures to fulfill its obligations to safeguard the rights of victims and witnesses in these cases and to put an end to the impunity that promotes and perpetuates this violence.
204. Finally, the State referred to its compliance with decisions of the inter-American system for the protection of human rights. As to the judgments of the Inter-American Court, the State reported that, in the Caracazo case, it had complied at the beginning of 2004 with respect to paying compensation, publishing the Court's judgment, and taking action against those responsible for the 1989 massacre. The Inter-American Commission notes the efforts that the State has made to comply with the Inter-American Court's judgment on reparations in this case. Those efforts have included the publication of extracts of the substantive judgment and the reparations judgment in the Official Gazette and in a newspaper of mass circulation, as ordered by the Inter-American Court. The IACHR also observes that the State has paid the compensation ordered by the Court.
205. With respect to the obligation to investigate the events and punish those responsible, the Inter-American Commission is concerned at the State's low degree of compliance. At the time this report was adopted there had been no serious and effective investigation to identify and punish those who planned, perpetrated and covered up the deeds that gave rise to the unfortunate events of the Caracazo. The State has reported that, in light of the ruling of the Inter-American Court of November 17, 2004, it will report shortly on the measures taken to comply with the Court's reparations judgment. As of the date this report was adopted, no criminal punishment had been imposed on those responsible for the killings, disappearances and permanent injuries identified in the IACHR's demand. The State has not clarified the deeds that gave rise to the forced disappearances, nor the whereabouts of those persons, nor has it returned the victims' remains to their families. Nor has the State conducted an exhaustive investigation to identify, try and punish through disciplinary, administrative and criminal channels, those responsible for the illegal burial of corpses in common graves of the La Peste sector of the General del Sur Cemetery. The State has not resumed the exhuming of the bodies, which was stopped in 1991. Nor has it identified the remaining 65 bodies, or conducted the forensic examinations needed to determine the causes of death. The State has also failed to inform the victims' relatives that it will cover all the expenses of burial for the victims once they are identified. The Venezuelan State has not updated its operational plans to deal with public disturbances, nor has it provided the armed forces and the police with training in the principles and standards for the protection of human rights, and the limits on the use of firearms.
206. With respect to the El Amparo case, the IACHR finds that, nearly 16 years after the event, the State of Venezuela has still failed to take the steps ordered by the Inter-American Court in its reparations judgment. In its communications to the Court, the State has confined itself to reporting that the case was assigned to a prosecutor, but it has not indicated, among other things, the actual outcome of the investigations, the steps taken, the remaining courses of investigation, or the tests conducted. The IACHR reiterates that there has been no effective internal investigation that would produce evidence for identifying and punishing those responsible.
207. Consequently, the Commissioner must reiterate the need for the State to comply fully with the judgments of the Inter-American Court in the Caracazo and El Amparo cases.
 In its press release no. 5/04 the Inter-American Commission declared its concern over the grave acts of violence during the demonstrations held in Venezuela between February 27 and March 1, 2004. According to information received, there were at least three deaths and 21 injuries in different cities of Venezuela due to the disproportionate use of force by the National Guard, the Directorate of Intelligence and Prevention Services (DISIP) and the police, and through the actions of demonstrators allied with or opposed to the Venezuelan government. The IACHR was also informed of the arrest of various persons as the result of public demonstrations.
 I-A Court, Baena Ricardo et al. (270 Workers vs. Panama), Judgment of February 2, 2001, paras. 192 and 193.
 I-A Court, Hilaire case. Preliminary Objections, Judgment of 1 September 1, 2001. Series C Nº 80, para. 82.
 I-A Court, Baena Ricardo et al. (270 Workers vs. Panama) Competence. Judgment of November 28, 2003. Series C. Nº 104 para. 68; I-A Court, Constitucional Tribunal case. Competence, Judgment of September 24, 1999. Series C Nº 55, para. 33; I-A Court, Ivcher Bronstein case. Competence, para. 34; I-A Court, Hilaire, Constantine and Benjamin et al., Judgment of June 21, 2002. Series C Nº 94, para. 18; I-A Court, Constantine et al., Preliminary Objections, Judgment of September 1, 2001. Series C Nº 82, para. 72; I-A Court, Benjamin et al., Preliminary Objections, Judgment of September 1, 2001. Series C Nº 81, para. 72 ; and I-A Court, Hilaire case. Preliminary Objections, Judgment of September 1, 2001. Series C Nº 80, para. 81.
 I-A Court, Hilaire case. Preliminary Objections, Judgment of September 1, 2001. Series C Nº 80, para. 93.
 Article 23 of the Constitution of Venezuela.
 I-A Court, I.D.H, Provisional Measures, James et al. vs. Trinidad and Tobago, August 29, 1998, para. 10.
 I-A Court, "The Last Temptation of Christ" Case, Judgment of February 5, 2001, Inter-Am Ct. H.R. (Ser. C) No. 73. In this judgment the Court declared: […] any act or omission that may be attributed to the State, in violation of the norms of international human rights law engages the international responsibility of the State. In this case, it was engaged because Article 19(12) of the Constitution establishes prior censorship of cinematographic films and, therefore, determines the acts of the Executive, the Legislature and the Judiciary.
 Inter-American Court of Human Rights, Mendoza Penitentiaries Case, Resolution of the Court of 22 Nov 2004, Operative Paragraph 16.
 With respect with the obligation to inform the Court in cases of provisional measures, the Inter-American Court noted in its Annual Report that the Venezuelan State: "has not advised the Court of the steps effectively taken to implement those measures ordered by the Tribunal […]. On this point, the Court calls upon the OAS General Assembly to urge […] Venezuela to advise the Court of the steps taken to implement the provisional measures it has ordered".
Inter-American Court of Human Rights, Annual Report 2003, San Jose, Costa Rica, 2004, page 69.
 Organic Law of the Supreme Court of Justice of Venezuela (LOTSJ), published in the Official Gazette No. 37,942 of May 20, 2004.
 In its report on Venezuela, the IACHR noted in particular that these provisions refer in principle to “the increase in the number of Supreme Court justices; the granting of powers to the National Assembly whereby it can increase or decrease, by an absolute majority vote, the number of judges in the different chambers of the Supreme Court; and the empowerment of the Assembly to decree, by a simple majority vote, the revocation of Supreme Court justices’ appointments.”
 Article 8 of the Organic Law of the Supreme Court of Justice provides that:
Judges of the Supreme Court of Justice shall be appointed by the National Assembly through the following procedure:
Upon receipt of the second pre-election drawn up by the Citizen's Power, pursuant to Article 264 of the Constitution and this Law, the National Assembly shall hold a plenary session, convened at least three days in advance, and shall make the definitive selection by majority vote of two-thirds of its members. If this majority cannot be achieved, a second plenary session shall be convened, in accordance with the provisions of this article; and if it is again impossible to achieve this majority, a third session shall be called, and if a two-thirds majority of members of the National Assembly cannot be achieved at that session, a fourth plenary session shall be convened, in which the appointments will be decided by simple majority vote of members of the National Assembly.
If a judge should fail to achieve an absolute majority, or if for any other reason a new appointment must be made, the procedure indicated above shall again be implemented immediately.
 In its brief of February 9, the State maintains that "the procedure for electing judges, as established in the Constitution and developed in the Organic Law, is unprecedented in requiring the intervention of a series of public bodies and social sectors". The appointment process involves not only the National Assembly but also the Committee on Judicial Candidacies, in which participate representatives of the various social sectors, as well as officials of the Citizens' Branch. According to the State, this guarantees that the selection process is a broad and intricate procedure that seeks to maintain the independence of the judiciary.
 Article 23 (3) provides:
Justices of the Supreme Court may be punished or removed from duty, in case of grave offenses, by the National Assembly, if the Citizens’ Branch so requests and specifies the offenses. In the case of removal, this must be approved by a two-thirds majority vote of members of the National Assembly, after hearing the judge in question. Once the Citizens’ Branch has classified the offense as grave and has unanimously requested removal, the judge will be suspended from duty until a definitive decision of the National Assembly. The judge will also be suspended if the Supreme Court of Justice declares that there are grounds for impeachment, in which case this measure is different from the penalty of suspension stipulated in the Organic Law of the Citizens’ Branch.
 In its brief of February 9, 2005, the State indicates that Article 23 of the law inserts a procedure for removal in accordance with constitutional principles. This is a precautionary measure that is taken in the case of a serious emergency such as "unanimous declaration of grave offense by officials of the Citizens' Branch". With respect to other grounds for cancellation of appointment the State adds that "the use of indeterminate juridical concepts cannot be considered in itself as unconstitutional, since they are accepted in all legal systems, recognizing that the law cannot foresee all the possible types of offense that a judge of a tribunal or court might commit.”
 Article 12 of the Organic Law of the Supreme Court of Justice.
 Article 23 (4) provides:
The National Assembly, by simple majority, may cancel the administrative order appointing a magistrate or an alternate judge, if that person provided false information in support of his candidacy for appointment that distorted the assessment of the qualifications stipulated in this Law and in the Constitution; or when the public attitude of the judge offends against the dignity or prestige of the Supreme Court of Justice, or of any of its chambers, or of the members of the Judiciary; or when the judge interferes with the functioning of the Supreme Court of Justice, or of any of its chambers, or of the Judiciary. These administrative orders of cancellation have full effect, and can be challenged only through an appeal for nullity.
 Statement by Deputy Francisco Ameliach during the swearing-in of 49 magistrates of the Supreme Court of Justice on December 15, 2004. “Listo TJS con 32 magistrados”, El Universal Thursday, December 16, 2004.
 During this process 17 new judges were selected. The vacant positions reflected in part the increase in the number of judges on the court established by the Organic Law (from 20 to 32) and in part the resignation of four judges and the retirement of another.
 The American Convention asserts in its preamble the “intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man.” In the same spirit, Article 29 of the Convention prohibits any of its provisions from being interpreted as "precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government", while Articles 15, 16, 22 and 32 also refer to democracy as the prerequisite political organization of states parties.
Inter-American Commission of Human Rights, Report on the Situation
of Human Rights in Peru 2000,
 Supreme Court of Justice, Judicial Commission, Resolution 2003-0271, Caracas, October 27, 2003, page 26.
2. Appointments pursuant to this resolution are temporary in nature; consequently, they may be freely appointed and removed by the Judicial Commission, except in the case of legal professionals who were awarded permanent positions through competition. In addition, lawyers appointed as temporary judges will be initially contracted for three months, and subsequently for six months, renewable, until they have been definitively appointed through competition.
 Supreme Court of Justice, Judicial Commission, Resolution 2004-0140, Caracas, August 30, 2004.
 Supreme Court of Justice, Political and Administrative Chamber, Decision of October 14, 2004, Case 2002-0259, Presiding Magistrate: Yolanda Jaimes Guerrero.
 In another decision, the Judicial Commission of the Supreme Court of Justice ruled:
Because the appellant does not have tenure, it is clear that the body that appointed her also has the power to revoke that appointment, which implies a broad and discretionary power on which there are no effective limits, since she does not enjoy the protection of judicial tenure. From this viewpoint, the revocation of the appointment as approved by this Judicial Commission does not constitute a disciplinary act, i.e. it is not a question of applying a penalty for an offense, but rather a question of circumstance, grounds that cannot be challenged or subjected to review.
Judicial Commission of the Supreme Court of Justice, Presiding Magistrate: Luis Martinez Hernandez, Case CJ-2003-0015, June 16, 2003.
 PROVEA, The situation of human rights in Venezuela. Annual report October 2003-September 2004, Caracas, 2004, page 391.
 See, in general, IACHR, Report on the Situation of Human Rights in Peru (OEA/Ser.L/V/II.106), June 2, 2000; Report on the Situation of Human Rights in Chile, (OEA/Ser. L/V/II.34), October 5, 1974; Report on the Situation of Human Rights in Uruguay, (OEA Ser. L/V/II.43), January 31, 1978; Report on the Situation of Human Rights in Nicaragua, (OEA Ser. L/V/II 33), June 30, 1981, and Report on the Situation of Human Rights in Guatemala (OEA/Ser. L/V/1161), October 1983
 I-A Court, Las Palmeras case. Judgment of December 6, 2001. Series C No. 90, para. 51; Cantoral Benavides case. Judgment of August 18, 2000. Series C No. 69, para. 113 and Durand and Ugarte case. Judgment of August 16, 2002. Series C No. 68, para. 117.