...continued (Chapter V)

VI.      THE RIGHT TO FREEDOM OF EXPRESSION

272.        The IACHR asked the office of its Special Rapporteur for Freedom of Expression (“the Rapporteur’s office”)[132] to examine the steps taken by the Venezuelan government in compliance with the recommendations in the report on that country[133]. This chapter was prepared on the basis of information received by the Rapporteur's office and on the reports submitted by the State.[134]

273.        With respect to the situation of the freedom of thought and expression, the Commission recommended that the State of Venezuela:

1.         Urgently take specific steps to put a halt to attacks on journalists, camera operators, and photographers, opposition politicians and human rights defenders, and all citizens who wish to exercise their right of free expression.

2.         Conduct serious, impartial, and effective investigations into murders of, attacks on, threats against, and intimidation of journalists and other media workers.

3.         Publicly condemn, from the highest levels of government, attacks on media workers, in order to prevent actions that might encourage such crimes.

4.         Scrupulously respect the standards of the inter-American system for the protection of freedom of expression in both the enactment of new laws and in the administrative and judicial proceedings in which it issues judgment.

5.         Work for the repeal of laws that contain desacato provisions; such precepts curtail public debate, which is an essential element in a functioning democracy, and are also in breach of the American Convention on Human Rights.

6.         Guarantee the effective right of access to information held by the State in order to promote transparency in the public administration and consolidate democracy.

7.         Adapt its national laws in accordance with the parameters set in the American Convention on Human Rights and fully comply with the terms of Article IV of the American Declaration of the Rights and Duties of Man and the IACHR’s Declaration of Principles on Freedom of Expression, particularly as regards the demand for truthful, impartial and objective information contained in Article 58 of the Venezuelan Constitution.

274.        During 2004 the IACHR found that the communications media continued to express themselves for the most part in a manner critical of the government. Nevertheless, attacks continued on media facilities and on journalists; there was no substantial progress in the investigation of events in which social communicators were victims; and court decisions were issued and laws were approved contravening international standards protecting the freedom of expression.

275.        According to information received, the freedom of expression still labors under a climate of aggression and threats, directed in particular against the personal integrity of journalists, cameramen, photographers and other social communicators. The persistence of such attacks, which as noted originate in many sectors, betrays the lack of concrete action by the State to prevent them. The IACHR recalls that the State's commitment under the American Convention includes the duty to guarantee exercise of the freedom of expression in Venezuela.

276.        The IACHR has received information about the serious violence that occurred during the demonstrations held between February 27 and March 1, 2004,[135] in which a number of attacks on the social communications media were confirmed.  While it is true that some of them were not specifically directed at communicators reporting violent events, many of them were indeed so directed. In these cases, the security forces played an active role in the attacks or by their passivity, with a few exceptions, allowed individuals to initiate and continue them. The following cases are symptomatic of these statements[136].

277.        On February 27, 2004 the cameraman Carlos Montenegro, of the Televen TV channel, was shot in the leg in the Caracas district of Bello Monte.[137] Luis Vladimir Gallardo, a photographer with the regional daily El Impulso, was injured in the face and back when he was hit by a teargas canister.[138]  On that same day, Berenice Gomez, a journalist with the Caracas newspaper Ultimas Noticias, was beaten, together with her (unidentified) driver.[139] On February 28, 2004 Jorge Ortuño, a photographer with the regional newspaper Avance, was threatened by National Guardsmen while he was covering protests in San Antonio de los Altos near Caracas. On February 29, Bernabé Rodriguez, a photographer for the newspaper El Tiempo, was wounded in the face.[140] On that day the photojournalist Billy Castro and the reporter Wilmar Rodriguez, both with the newspaper Impacto, were attacked. On the same day, Janeth Carrasquilla, a correspondent for Globovision TV, was injured in the head in the city of Valencia.[141] Juan Barreto, a photojournalist for Agence France Presse (AFP), was wounded by a bullet while covering disturbances in Plaza Altamira in Caracas.[142] Felipe Izquierdo, a photographer with the international TV network Univision, was shot in the foot near the Plaza Francia in Altamira, in eastern Caracas.[143] On March 1, 2004, the journalist Johnny Figarrella of Globovision TV was injured by a tear gas canister that hit him in the chest while he was working in the Caurimare district of Caracas. On that same day, the journalist Edgar Lopez, a reporter with El Nacional, was attacked.[144]

278.        The days following March 1, 2004 saw further attacks. On March 2, 2004, Frank Molina, a photographer with Televen, was beaten and had his camera confiscated.[145] On the same day Juan Carlos Aguirre, a reporter with the Caracas TV station CMT, was injured when he was beaten by soldiers of the National Guard.[146] Also on March 2, 2004, Victor Yepez and Adda Perez, owners and managers of Radio Maxima FM in the city of Ojeda, in northwestern Zulia, were attacked by sympathizers with the opposition to the government of Hugo Chavez, who were taking part in a protest. The couple requested preventive measures from the IACHR, which were granted on March 11, 2004.[147]

279.        Also on March 2, 2004, the headquarters of the State television station, Venezolana de Television (VTV) was attacked.[148] On March 3, 2004, a cameraman for Radio Caracas Televisión (RCTV), Carlos Colmenares, was wounded at the Plaza Francia, Altamira, in eastern Caracas. The IACHR had earlier been asked to order precautionary measures for the protection of Colmenares.[149] Also on March 3, Ana Marchese, a photo journalist for the newspaper Correo de Caroni, was injured in Cuidad Bolivar, capital of Bolivar state.[150] On March 6 and 7, 2004, a number of threats were made against employees of Radio Llovizna (FM 95.7) in the city of Guayana, in the Department of Bolivar.[151]

280.        In some of these cases that occurred during 2004 the IACHR granted precautionary measures[152] or requested provisional measures from the Inter-American Court to protect the fundamental rights of media workers.[153]

281.        Similar attacks against media workers occurred during coverage of the referendum to revoke the presidential mandate, especially during the time the signatures for requesting that constitutional measure were being confirmed. Following are some examples.

282.        On May 10, 2004, the journalist Felix Carmona, the photojournalist Jorge Santos and Andres Perez Cova, all employees of the newspaper El Universal, were attacked by officers of the Military Intelligence Division (DIM).[154] Sandra Sierra and Pedro Rey of the newspaper Notitarde were attacked on May 29 in the town of Sucre, east of Caracas.[155] Marta Palma Troconis and Joshua Torres of Globovision were attacked in the same area minutes later. Also on May 29, Nahjla Isaac Perez and Jonathan Fernandez of regional channel TVS were assaulted in San Diego, Carabobo.[156] On June 3, 2004, around noon, several people attacked the facilities of Radio Caracas Television (RCTV) in Quinta Crespo. On that same day, 20 persons or so went to the headquarters of the newspapers El Nacional and Asi es la Noticia, where they threw stones and objects causing damage to the building; they also burned a distribution truck and damaged several employees' cars as well as some office equipment. The attackers were allegedly government sympathizers who were protesting the announcement by the CNE that the opposition had achieved sufficient signatures to hold a referendum to revoke the presidential mandate.[157] During these proceedings a vehicle belonging to the newspaper Meridiano was reported burned in the Plaza Oleary in Caracas.[158] On June 27, 2004, Romelia Matute of the State-owned Radio Nacional de Venezuela (RNV) was attacked, apparently by government opponents.[159] On July 12, 2004, in the vicinity of the University of Zulia, Daniel Diaz, a cameraman for Venevision, and his assistant, Estevan Cordoba, were threatened and assaulted.[160] On July 16, 2004, the journalist Dariana Bracho of the newspaper La Verdad in Maracaibo, in western Venezuela, reported that she had received telephoned death threats in the two previous days.[161] On August 11, government sympathizers attacked a team of reporters from Globovision, after they had covered a meeting in Caracas between government officials and international observers concerning the recall referendum.[162]

283.        On that same day the Spanish photographer Eduard Gimenez was attacked in downtown Caracas.[163]

284.        The Rapporteur's office and the IACHR also received information on cases of aggression against the media and reporters beyond the context of the political and social conflict. Following are some of the cases that were reported.

285.        On January 18, 2004, a Globovisión television news crew were attacked.[164] On January 29, 2004, there was an attack on the journalist Euro Lobo, who was working for TV channel OMC in Merida, capital of the State of Merida, in southwestern Venezuela.[165] On February 12, 2004, the journalist Victor Sierra of the newspaper Cambio de Siglo was attacked.[166] On September 17, 2004, Globovisión technicians Alberto Almao and Víctor Henríquez were assaulted while covering a demonstration by employees of Misión Ribas, a government-sponsored education program.[167] On October 15, 2004, journalist Nelson Bocaranda, who hosts the program "Los Run Runes de Nelson", broadcast on Radio Onda 107.9 FM, said he had received death threats over comments he made regarding the administration of Mayor Alfredo Catalá, of El Hatillo municipality.[168] On October 31, 2004, a team of reporters for the State television station Venezolana de Televisión (VTV) were attacked.[169]

286.        These events suggest that violence against the media and social communicators occurred principally during the periods of greatest social and political upheaval in the country. The IACHR notes that the last months of 2004 saw a decline in attacks against the media and journalists, as the State has pointed out.[170] Yet the balance for the year is negative. The number of attacks shows that the measures to prevent them were insufficient and ineffective, and the recommendation in this regard has not been fully respected.

287.        With respect to the investigation of such events, the State asserted that "the Offices of the Ombudsman and the Prosecutor General, together with the appropriate courts, are responsible for establishing responsibilities with respect to attacks and harassment against journalists". As well, on December 7, 2004, the State reported that "investigations initiated in the past relating to media workers are pursuing their normal course through the courts, with due regard to the right of defense at all stages of the processes."

288.        The IACHR welcomes the statements by the Venezuelan State, although their generality makes it impossible to identify concretely the progress that has been made in the investigations cited. The only case in which there is clear evidence of progress relates to the conviction of a state agent for assaulting the journalist Alicia Rotta.[171]

289.        The impunity that characterizes the investigations tends to create an atmosphere of intimidation and fear for those seeking to exercise the freedom of expression in Venezuela. It must also be noted that the Inter-American Court has observed, in the provisional measures requested by the IACHR relating to Venezuela, that no information on the investigation of these cases has been provided. On May 4, 2004 the Inter-American Court reminded the State of its duty to investigate the alleged facts.

290.        A single example of progress is insufficient to consider that there has been full compliance with the IACHR's recommendation on the need to investigate the countless cases now in the hands of the competent authorities.

291.        The latest report of the State maintains that "the President of the Republic, Hugo Chavez Frias, has himself condemned violence against any person. Senior government officials have issued similar condemnations in an effort to restore our tradition of peace and tolerance." The IACHR and the Rapporteur's office, however, are aware of public statements from the highest spheres of government, including President Hugo Chavez, denouncing the media, and these could be misinterpreted by his supporters. On February 15, 2004, for example, during his program "Aló Presidente" No.182, President Chavez threatened to take over control of the broadcast facilities of Globovision and Venevision if the opposition were to engage in further activities like those of April 11, 2002.[172] In the wake of the recall referendum, the chief electoral officer, Jorge Rodriguez, vowed to imprison anyone who spoke of electoral fraud. After publication of these statements and others revealing a great number of complaints about the referendum in the newspaper El Universal, President Chavez used his weekly radio and television program to assert that the editor of that newspaper, Andres Mata, "has no country… and he is playing into the hands of transnational interests that want to take over Venezuela."[173]

292.        At the conclusion of its 121st regular session in October 2004, the IACHR reiterated its concern over the draft Law on Social Responsibility in Radio and Television, which was at that time under debate in the National Assembly of Venezuela. As it pointed out, several articles of the draft do not reflect international standards for the protection of human rights, nor are they consistent with the jurisprudence of the inter-American system, or with the recommendations of the Inter-American Commission.[174]

293.        Despite these observations of the IACHR and the recommendations made since 2003 in various press releases, letters and reports from the Rapporteur's office and from the Inter-American Commission,[175] the National Assembly of Venezuela approved that draft Law in November 2004. In a press release of November 30, after receiving a report from the Rapporteur's office on this Law, the IACHR expressed its concern over the approval of the draft, and its possible incompatibility with Article 13 of the American Convention.[176] The government promptly promulgated the law and it came into force on the following day.

294.        In its note of December 7, 2004, to the IACHR, the State declared, with respect to this law: "we expect that this instrument will bring important and positive changes for Venezuelan society in general, respecting the standards of the inter-American system for protecting the freedom of expression, and establishing a balance between absolute respect for the rights to freedom of expression, to information, and to free and pluralistic communication."

295.        The Inter-American Commission regrets that its recommendations have not been taken into account, and it shares the view expressed by many nongovernmental organizations[177] that this law is contrary to international parameters protecting the freedom of expression, and in particular the provisions of Article 13 of the American Convention.

296.        The IACHR is concerned at the creation of a Social Responsibility Board and a Responsibility Council with very broad powers that include the ability to impose sanctions. Because this law is so severe, stipulating more than 80 punishable offenses, there are grounds to fear that the powers accorded its administration (the Board) could be open to abuse and could thus pose a threat to the freedom of expression. Of equal concern is the fact that the law places limits on the content of radio and TV programs that, combined with the vague wording used in several of its provisions, could induce self-censorship by the media. The extreme subjectivity of elements such as language, sex or violence, together with the fact that the bill offers no parameters for interpreting these elements and the potential punishments applicable, leads to the conclusion, as the IACHR warned in its report, that media self-censorship is a real possibility. Moreover, the law imposes conditions relating to truthfulness, impartiality and timeliness on news broadcasting, thereby opening the door to regulation that would be counter to the jurisprudence of the inter-American system. The Inter-American Court has ruled that "one cannot legitimately rely on the right of a society to be honestly informed in order to put in place a regime of prior censorship for the alleged purpose of eliminating information deemed to be untrue in the eyes of the censor.”[178]

297.        Another source of concern to the IACHR and the Rapporteur's office has to do with legislative processing of a bill to reform the criminal code, now before the National Assembly, the text of which was approved at second reading in the sessions of December 2 and 9, 2004.This bill increases the penalties for the crime of defamation and slander. The text of the bill as approved increases the maximum prison penalty for the crime of defamation to four years, from the previous level of 18 months. With respect to the crime of slander, the new text increases the maximum prison penalty from eight days to one year.[179]

298.        The proposed increase in penalties, together with the lack of clear rules to prevent criminalization of expression on matters of public interest, runs counter to the recommendations of the IACHR. The Inter-American Court has ruled that the subsequent imposition of liability permitted by Article 13 of the American Convention must respect a different threshold when examining cases of expression of the type indicated.[180]

299.        With respect to judicial decisions that are incompatible with the parameters of the inter-American system, on July 27, 2004 the Constitutional Chamber of the Supreme Court of Venezuela ratified the Law on the Practice of Journalism in Venezuela, approved in 1994, thereby confirming the requirement to join a professional association in order to practice journalism. That law requires, among other things, a university degree in journalism, social communication or the equivalent from a Venezuelan university and registration with the National College of Journalists, and it establishes prison penalties of between three and six months for unlawfully practicing the profession.[181] It is important to recall the rule that the Inter-American Court established in its fifth advisory opinion of 1985 (OC-5/85).

300.        Other judicial decisions were issued in 2004 that conflict with the parameters of the inter-American system protecting the freedom of expression. Those decisions were issued primarily in judicial proceedings initiated by public officials, sometimes within military jurisdiction, in response to statements by journalists or individuals identified with the political opposition. Since the IACHR's 1994 report on the incompatibility of slander (desacato) laws with Article 13 of the American Convention the Commission has consistently held that such provisions constitute a violation of the freedom of expression. The crime of defaming the Armed Forces, applied in some of the cases mentioned below, falls within this category of desacato laws.[182]

301.        Among the cases on which information was received is that of Patricia Poleo, director of the newspaper El Nuevo Pais, who on March 22 appeared before a military court. She was accused of incitement to rebellion and of defaming the Armed Forces,[183] and of insulting that institution.[184] On May 25, 2004 Ibeyise Pacheco, a columnist with El Nacional, was sentenced to nine months in prison for continuous and aggravated defamation. The charges against her were brought by Col. Angel Alberto Ballorin, after the journalist had published a statement in her weekly column En Privado, dated June 15, 2001, accusing the Colonel of having falsified an examination score when he was a law student. Moreover, in February 2002, Ms Pacheco published a claim that the Colonel had secured a series of questionable promotions.[185] Another case worthy of mention is that of the journalist Manuel Isidro Molina, of the weekly La Razon, who was notified on November 11, 2004 by the Military Prosecutor General, Eladio Aponte, that proceedings had been opened against him for defamation and slander of the National Armed Forces. Mr. Molina had published a column on November 7 claiming that retired Air Force Colonel Silvino Bustillos, missing since November 1, had been tortured and murdered at the facilities of the Military Intelligence Division (DIM) in Caracas. On November 8, Bustillos contacted his family to tell them that he was safe but in hiding. The following day the journalist published a correction in his column, admitting "unintentional error".[186] Despite this retraction, Mr. Molina was called before the military prosecutor on November 19. On October 11, 2004, retired Army General Francisco Uson Ramirez was sentenced to five years and six months in prison for slandering the Armed Forces, under the provisions of Article 505 of the Military Code of Justice.[187] He was also stripped of his political rights and disqualified from bonuses. The accusations against him were based on a statement made during Marta Colomina’s interview program La Entrevista on April 16, 2004, in which he alleged that soldiers held in the stockade of the Combat Engineers Battalion at Fuerte Mara, Zulia, had been burned with flamethrowers.[188]

302.        From the foregoing it can be deduced that, during 2004, various legislative and judicial developments ran counter to the parameters of protection for the freedom of expression enshrined in the inter-American system.

303.        In its report on Venezuela the IACHR held that Venezuela's desacato legislation, which criminalizes offensive statements made against public officials, is incompatible with Article 13 of the American Convention.[189] Nothing has been done during 2004 to repeal that rule. On the contrary, the draft reforms to the Criminal Code confirm and expand the crime of desacato. At its regular sessions of December 2 and 9, 2004, the National Assembly gave approval in second reading to amendments to Articles 148 and 149 of the Criminal Code.[190]

304.        Final reading of the Draft Bill to Reform the Criminal Code was scheduled for December 14, 2004, the last day of the regular session of the National Assembly, but it was postponed for procedural reasons until 2005.[191] The IACHR and the Rapporteur hope that the debate will take account of the respective recommendation, which has yet to be honored.

305.        No information has been received on any initiative by the Venezuelan State to facilitate access to public information through special laws or other measures to ensure effective recognition and enjoyment of this freedom[192]. The PROVEA organization has launched five appeals for constitutional protection before the Supreme Court to uphold the right of petition against the Public Ombudsman's refusal to grant it.[193] On September 24, 2004, the Ombudsman's office issued a statement in which it maintained that it "is under no obligation to provide information to PROVEA or to the embassies of any country, for the preparation of their reports." PROVEA argues that it was unable to consult official information of the Ombudsman's office because, since 2002, that office has not published an annual report, obliging PROVEA to submit petitions for information. PROVEA also argues that "the information requested of the Ombudsman's office has nothing to do with confidential matters, because it deals with statistics or with a general description of cases, information that the ombudsman’s office can readily provide, as it does when it presents its activities report."[194]

306.        The IACHR reiterates that, given the need to promote greater transp165ency in government action as the basis for strengthening democratic institutions, limitations on the files held by the State must be exceptional and must be interpreted restrictively.

307.        Finally, the State indicated that an amendment to Article 58 of the Constitution would imply a substantial change in decisions taken by the Constituent Assembly and confirmed through popular referendum. It asked the IACHR to undertake an “objective review” of the real meaning of this constitutional provision, which, it believes, reinforces the public's right to obtain quality information. The State also declared that "the Commission's recommendation to amend the constitutional articles represents interference in national sovereignty."[195] On this point, the Rapporteur and the IACHR reaffirm what was said in the 1985 Advisory Opinion on Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (OC-5/85) quoted above.

308.        In light of the foregoing considerations, the Inter-American Commission considers that the recommendations contained in its report on Venezuela and quoted in this chapter have not been fulfilled, and it therefore calls upon the State to take the necessary actions to comply with them.

          VII.     TRADE UNION FREEDOMS

309.        In its report on Venezuela, the IACHR expressed concern over the degree of political polarization and the lack of common ground between labor organizations, employers’ organizations, and the government. In this context, the Inter-American Commission referred to the mass dismissals of workers at Petroleos de Venezuela (PDVSA), government intervention in the organization of elections for union leaders, and legal barriers to the enjoyment of trade union freedoms.

310.        The Inter-American Commission was particularly concerned at the mass dismissals suffered by workers at PDVSA. It considered it essential that the judicial procedures for reviewing those dismissals should be strictly consistent with the guarantee of due process established in Article 8 of the American Convention.

311.        The situation has been marked by constant intervention in union activities by State efforts to obstruct the work of union leaders and to exert political control over the labor movement. The IACHR was informed of an especially alarming situation relating to union elections, and a government policy of confrontation with certain unions, in particular with the leadership of the Venezuelan Confederation of Workers (CTV).

312.        The Inter-American Commission observed that on December 3, 2000 the State called a referendum in which it asked voters if they were in agreement with reforming the trade union leadership through elections to be held within six months. That election betrayed clear State interference in the affairs of labor organizations, despite repeated recommendations to the contrary by the International Labour Organisation (ILO). As well, the IACHR stressed the importance of giving priority to resolving the problem of recognizing the leadership of the CTV, the principal Venezuelan labor confederation, consistent with the needs and rights of its members.

313.        The IACHR therefore recommended to the State:

1.         That it move as promptly as possible to find a satisfactory solution, in accordance with the international obligations assumed by Venezuela, to the dispute arising from the refusal to recognize the leadership of the Venezuelan Confederation of Workers.

2.         That in amend Article 293 of the national Constitution, to bring it into conformity with international standards on trade union freedoms, and that it modify the relevant provisions of the Organic Labor Act.

3.         That it take the necessary steps to guarantee trade union freedoms, so that situations of State intervention in this area will not be repeated in the future.

314.        In referring to the recommendations of the IACHR, the State recognized that the turnout for the December 3 referendum extended well beyond the workers directly affiliated with the labor organizations. The State claimed that those irregularities had been addressed through the process for renewing the leadership of the CTV in 2001, and that the Union Affairs Board of the CTV had established rules and guidelines on elections to be held in labor organizations of the first, second and third degree. Those guidelines included democratic consultation through a referendum among workers with a view to converting national federations into national unions, and to facilitating the process of unifying the labor movement. All of this demonstrates, according to the State, that the CTV received financial and logistical support from the National Elections Council (CNE), at the labor organization's own request.

315.        The State added that the participants themselves used the CNE to arbitrate their electoral disputes. The union elections were held between July and November 2001, with broad worker participation, and they produced what the State called "a thorough renewal of union leadership."

316.        The State also declared that the union election system stipulated in Article 293 and in the eighth transitional provision of the Constitution was governed by the organic law of the electoral authority. Article 33 of that law gives the CNE the power to organize union elections, with full respect for their independence and in accordance with international treaties, and to provide technical support to this end. That provision limits the activities of the CNE, conditioning its participation upon the free and prior consent of the unions. According to the State, the organic electoral law superceded the eighth transitional provision of the Constitution, reducing the powers of the CNE so that it could no longer intervene in convening, directing, overseeing or supervising labor elections, and could become involved in such processes only at the prior request of the unions. The law also repealed the Special Statute for the Renewal of Union Leadership.

317.        The IACHR observes that the oversight bodies of the ILO have for some years recommended changes to certain rules that constitute effective barriers to the free exercise of trade union freedoms. In its report on Venezuela, the Inter-American Commission recommended that the State repeal those rules, in accordance with international parameters in this matter.

318.        On this point, the State argues that the organic electoral law restricts the potential for State intervention in union affairs, and it has conveyed this view in its observations both to the IACHR and to the ILO.

319.        The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) referred to the State's observations in its 2004 record of sessions, in the following terms:

The Committee also referred in previous comments to a number of the provisions of the Constitution of the Republic which are not in accordance with the requirements of the Convention, namely:

-Article 95 which provides that "the statutes and rules of trade union organizations shall require the alternation of executive officers by means of universal, direct and secret suffrage." The Committee notes that the Government reiterates its comments on this subject. The Committee hopes that Article 95 will be amended in the near future so that the right of trade union leaders to be re-elected is recognized without ambiguity, if this is so provided in the statutes. The Committee requests the Government to provide information in its next report on any measure adopted in this connection.

-[…]

Notwithstanding the Government's comments, the Committee considers that Article 293 of the Constitution of the Republic should be amended to remove the power entrusted to the Electoral Authority, through the National Electoral Council, to organize the elections of trade unions. The Committee also considers that section 33 of the new Organic Electoral Act, which empowers the National Electoral Council to organize trade union elections, declare candidates elected, decide upon and declare elections null and void, receive and resolve appeals, complaints and representations, is not in conformity with the provisions of the Convention. The Committee once again reminds the Government that the regulation of trade union election procedures and arrangements must be done by trade union statutes and not by a body outside the workers' organizations, and that disputes relating to elections should be resolved by the judicial authorities. In these conditions, the Committee requests the Government to take measures to amend Article 293 of the Constitution of the Republic and the new Organic Act respecting the Electoral Authority in so far as it relates to its intervention in elections of workers' organizations, and to provide information in its next report on any measure adopted in this connection.[196]

320.        The Inter-American Commission agrees with the CEACR that an essential element for the free exercise of union rights is to have the powers of government oversight bodies drafted in clear and unambiguous terms. The freedom to organize must not be subject to any type of State intervention. The IACHR considers that Articles 95 and 293 of the Venezuelan Constitution are not consistent with international parameters accepted by the State through its ratification of international labor and human rights rules. Consequently, the Inter-American Commission urges the State to take action as promptly as possible to repeal those provisions and to remove all the legal or de facto obstacles that prevent the free exercise of union freedoms.

321.        The IACHR also referred in its report on Venezuela to legal provisions that constitute undue interference in trade union freedoms. In its response, the State reported that a draft bill had been presented addressing these recommendations and others of a similar vein issued by the CEACR. The State's observations refer to the draft Organic Labor Law submitted to the National Assembly on June 7, 2002.

322.        Nevertheless, more than two years have passed since that bill was introduced, and it has still not been approved. This situation persists despite the ruling of the Constitutional Chamber of the Supreme Court, in response to an appeal for unconstitutionality by omission against the National Assembly brought by the National Federation of Workers of Autonomous Institutes and State Enterprises, ordering the legislature to amend the Organic Labor Law within six months to bring it into line with the fourth transitional provision and with Article 92 of the Constitution. On December 15, 2004 that time limit expired, but the provision in question has not been approved.

323.        Regarding the refusal of the National Executive to recognize the CTV as the country's most broadly representative labor organization, the State reported that appeal decisions are pending before the Elections Tribunal and the Supreme Court. The State also noted that the CTV elections have been challenged in court by some of the persons  who took part in them.

324.        The Inter-American Commission has been informed that the Government continues to reject the possibility of dialogue with the CTV, arguing that its Executive Committee lacks legitimacy. The Inter-American Commission believes the process of determining the most representative labor organizations should not be grounds for refusing comprehensive dialogue with labor organizations. In its most recent report the CEACR said:

The Committee also noted in its previous observation that the Government does not hold consultations with the main social partners, or at least does not do so in a significant manner or attempt to reach agreed solutions, particularly on matters affecting the interests of those partners.[197]

325.        On this point, the CTV applied to the Electoral Chamber of the Supreme Court to put an end to the dispute and to declare the CTV "the most representative organization of Venezuelan workers," and recognized as such by the Venezuelan authorities in a declaration that would include recognition of the leadership elected on October 25, 2001.[198] The labor organization has complained that in these proceedings the Electoral Chamber initially declared itself competent to hear the application, and rejected an appeal for precautionary protection. Nevertheless, some months later the Electoral Chamber declared itself incompetent to rule on the substance, and remitted the matter to the Social Affairs Chamber of the Supreme Court. That Chamber issued a judgment on June 17, 2004, dismissing the CTV’s claim as out of order.

326.        Consequently, the State has still not recognized any labor organization as representative. The IACHR agrees with the ILO Committee on Freedom of Association that:

In order to avoid the danger of serious limitation on the right of workers to elect their representatives in full freedom, complaints brought before labour courts by an administrative authority challenging the results of trade union elections should not - pending the final outcome of the judicial proceedings - have the effect of suspending the validity of such elections.[199]

327.        On this point, the IACHR believes that it would be very helpful for Venezuela’s democratic development if the State were to open the way to social dialogue and cooperation with representatives of government, employers and workers, for a frank discussion of issues of common interest relating to economic and social policies, as proposed by the ILO.[200]

328.        The IACHR urges the State to try to open channels to avoid confrontation. In addition, it is important that the State should facilitate the holding of a labor referendum to establish in a democratic way the representativeness both of the CTV and of the National Union of Workers (UNT). This should be done at the request of the organizations themselves, and in full respect for their organizational freedom. While the labor unions are defining their organization internally, it would be advisable for the State to keep open the possibility for comprehensive social dialogue with the union leaders who currently represent the interests of workers.

329.        The IACHR has also received reports that the government has been requiring public sector employees to quit the CTV and its federations and to join the UNT. Through such affiliation, employees would be entitled to a bonus under a collective contract signed between the government and the National Federation of Public Sector Workers (FENTRASEP).[201]

330.        The exercise of trade union freedoms includes freedom for workers to select the union that in their opinion best defends their working interests, without interference of any kind from the authorities. The fact that the authorities are encouraging workers to join or to quit a specific union represents clear interference in the private affairs of its members and constitutes an attack on trade union freedoms.[202]

331.        The IACHR recommends that the State refrain from interfering in any way in the freedom of workers to join a labor organization. It also urges the State to take measures to prevent official discrimination between labor organizations, which would weaken the unions’ ability to defend their legitimate interests.

332.        In the polarized political and social setting of recent years, with the emergence of death squads, members of labor organizations in Venezuela have been subjected to threats and attacks. The IACHR has received reports that the State has not investigated those threats and attacks seriously. In its most recent report, the CEACR expressed itself as follows:

Deeply regretting that the Government has not ordered investigations into the acts of violence reported, the Committee recalls that the rights of workers' and employers' organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it requests the Government to take measures to ensure that this principle is respected.[203]

333.        In this context, the Inter-American Commission urges the State to take the necessary measures to put an end to the insecurity described and thereby guarantee to workers and employers the full enjoyment of their right to trade union freedoms.

          VIII.    GENERAL CONCLUSIONS

334.        The analysis of compliance with the recommendations issued by the Inter-American Commission in its report on Venezuela reveals that the climate of violence and of political and social tension diminished to some extent during 2004. The Inter-American Commission recognizes and applauds the efforts made both by the State and by civil society to seek channels of dialogue within a framework of respect for the rule of law and for human rights.

335.        In addition, the Inter-American Commission welcomes the information provided by the State on initiatives taken to design and implement a public safety program that respects the parameters for guaranteeing and protecting human rights.

336.        Nevertheless, the IACHR remains concerned over the position adopted by the State with respect to the recommendations of the IACHR, and its tendency to reject any questions on the grounds that they infringe national sovereignty. Because of that position, the State has also failed to comply fully with the provisional measures and judgments issued by the Inter-American Court. On the basis of the analysis in this report, the IACHR reminds the State of its duty to discharge the international human rights obligations freely assumed under the American convention and other applicable legal instruments.

337.        Among the main aspects constraining in a general manner the effective enjoyment of human rights for all inhabitants of Venezuela are the continuing doubts about the independence and impartiality of the judiciary; the impunity that results from the lack of serious and effective investigation of human rights violations, and the consequent failure to punish those responsible and to compensate the victims; the persistence of paramilitary groups operating in various states of the country; and the approval of laws or judicial rulings that contravene the parameters of the inter-American system for the protection of human rights.

338.        This report has noted that many of the recommendations have unfortunately yet to be fulfilled. The Inter-American Commission considers it essential that in examining solutions to problems the opinions of nongovernmental organizations and other components of civil society should be taken into account.

339.        In light of the foregoing, the Inter-American Commission:

i.        Reminds the State of its obligation to comply in good faith with its international human rights obligations;

ii        Reiterates the recommendations in its Report on the Situation of Human Rights in Venezuela with which the State has not yet complied; and

iii.     Offers its cooperation and assistance to the Venezuelan State, within the scope of its competence, for purposes of adopting measures of compliance.

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