ANNUAL REPORT OF THE IACHR 2006

VENEZUELA

I.         INTRODUCTION

138.          This section of Chapter IV of the Annual Report of the IACHR was prepared pursuant to Article 57.1.h of its Rules of Procedure.  The Commission’s analysis was based on information received over the course of 2006 from both civil society organizations and the State, as well as on official documents published on the web sites of state institutions and, in general, information provided by the press. On January 26, 2007 the Commission transmitted a the preliminary draft of this section to the government of the Bolivarian Republic of Venezuela in accordance with the above-cited Article and requested it to convey its observations within one month.  The Commission received the observations and comments of the State on February 26, 2007 and have been incorporated, on the pertinent in the final version of this report.[170]

139.          The present report has been prepared with the purpose of promoting a constructive exchange with the Venezuelan State in the search of policies and practices for the full respect of human rights.

140.          The Commission has monitored the human rights situation in Venezuela closely.  The Commission here addresses issues that, in its opinion, hinder the completion of the mandate assigned by the States to the IACHR, as well as such matters as the administration of justice, the problem of sicariato [paid killings] in Venezuela, the impunity that surrounds reports of extrajudicial executions at the hands of agents of the State, the substandard prison conditions, and the climate of political pressure to reportedly imposed on various sectors of civil society, in particular those that do not express open alignment with the discourse and objectives of the present government.

II.        PRELIMINARY CONSIDERATIONS

141.          In its observations to this Chapter, the State questions the sources of information on the grounds that they are partial or incomplete in verifying some of the subjects analyzed by the Commission. 

142.          The Commission considers it appropriate to emphasize that the information utilized in the preparation of the present Chapter consists of diverse sources of information such as press releases, information sent to the Commission by diverse Venezuelan civil society organizations and international organizations, as well as information presented by the State during hearings or in responses to requests of information, or from case decisions and urgent measures already published by the bodies of the System.  Additionally, on diverse occasions, the Commission has suggested the possibility of visiting the country in order to carry out more a comprehensive review and analysis of the human rights situation in Venezuela and to make contact with the diverse governmental institutions and civil society in order to obtain a variety of information.  Despite these requests, to date, the visit has not been realized.  Furthermore, on various occasions the Commission has requested specific thematic information from the State so as to obtain additional data for the analysis of matters that concern the Commission without having received an answer or having received vague information in response.

143.          Taking into consideration that human rights constitute a fundamental pillar for strengthening Latin American democracies, it is the Commission’s intention that this Chapter serve to fortify the relationship between the Commission and the State to further the development of policies and practices to promote, guarantee, and protect human rights in Venezuela.

III.      THE IMPOSSIBILITY OF ARRANGING A VISIT TO VENEZUELA

144.          One area to which the Commission devoted part of its work in 2006 was the attempt to arrange a visit to Venezuela, an effort that was severely frustrated by the lack of response from the State to propose an exact date for the visit.

145.          Since its last on-site visit to Venezuela in May 2002, the Commission has fruitlessly sought the consent of the State, both verbally and in writing, to visit the country again. The President of the Republic, Hugo Chávez Frías had expressed his government's complete willingness for the Commission to make all the visits necessary to follow up on the issues observed in 2002. However, in 2006, the Commission did not observe additional attempts and initiatives to carry out such visits nor any advances in the possibility of a visit to the country by Commissioner Paulo Sergio Pinheiro, Rapporteur for Venezuela, accompanied by thematic Rapporteurs.

146.          The lack of consent from the government prevents the IACHR from exercising the powers and attributes granted to it by the States under the Charter of the OAS, the IACHR Statutes, and the American Convention on Human Rights.

147.          It has been 20 years since the IACHR began its practice of on-site visits to the different countries of the Hemisphere to verify the situation of human rights in them. The possibility of firsthand knowledge on the ground of different issues and programs connected with human rights in the countries has helped to strengthen a close dialogue with government authorities and society as a whole, with a common objective: to promote observance and protection of human rights and improve quality of life for the inhabitants of the countries in the region.

148.          The inter-American system allows progressively broad protection of human rights and democracy by strengthening with a regional perspective domestic institutions and rules and ensuring access to increasing protection for the values of human dignity. One of the major contributions of international human rights law is that prior to its creation each state had exclusive jurisdiction over the way in which it treated its inhabitants.  At present, the responsibility of the State for protecting human rights is a legitimate concern of the international community.

149.          A feature of democracy is its ability to be refined and, on that premise, erecting a hemispheric position on the issues of due process, emergency situations, equality before the law, and prohibition of discrimination, creates increasing avenues at the domestic level to foment the growth of democracy. With the vision of contributing to the construction of democratic societies based on full observance of human rights, the States created, among other instruments, the inter-American system for protection of human rights, consisting of a set of provisions and two specialized organs: the Inter-American Commission and the Inter-American Court of Human Rights.  The States, the creators of the system, voluntarily undertook to fulfill their commitments and to act as guarantors of the system both individually and collectively.

150.          The system has different instruments at its disposal in order to perform its role.  One of the main instruments available to the IACHR to carry out the mandate issued by the States to stimulate the consciousness of human rights,[171] are the on-site visits, through which it can evaluate human rights conditions in a country, verify the situation of certain rights, or promote the value of human rights overall.  Upon concluding an on-site visit, the Commission usually offers preliminary observations which it makes public.  On-site visits normally conclude with a comprehensive and detailed report on the situation of human rights in the country.  In past reports the Commission has warned of situations of decline in the rule of law in various countries.  In addition, the reports have been essential for the restoration of democracy in certain countries in the region or to advance democratic consolidation.  Implementation of the recommendations contained in these reports has made it possible to improve the quality of democratic life in a number of different states in the region. These reports and the recommendations they contain then become the subject of continuous monitoring and periodic follow-up reports, which are enriched by fruitful dialogue established with the state and civil society and the possibility of continued follow-up visits. On-site visits have also contributed to set in motion investigations on cases before the Commission, promotes and monitor their follow-up, friendly settlements,  precautionary measures as a mean of cooperation with the Member States.

151.          Recognizing the importance of the visits and reports of the IACHR as guiding instruments for the enhancement and protection of human rights in the countries of the region, at the fourth plenary session of the General Assembly held on June 6, 2006, in Santo Domingo, the heads of state and government reaffirmed the essential value of the work carried out by the Inter-American Commission on Human Rights (IACHR) to enhance the protection and promotion of human rights and the reinforcement of the rule of law in the Hemisphere, as well as encouraging the member states to continue the practice of inviting the IACHR to visit their respective countries.[172] The Inter-American Commission values the open invitations expressed by various Member States which allows the Commission to visit those countries at any moment with the common aim of strengthening human rights.

152.          The Commission considers that the position of the Venezuelan Government counteract the good practices pointed out in the previous paragraphs and  makes idle the manifestations express by the State since the last visit of the IACHR to Venezuela six years ago, in which is being asserted the interest of the State that the Commission and/or the thematic Rapporteurs visit the country.

153.          With regard to the country visit, in its report of observations, the State reiterates “in the most emphatic manner, the need of the Commission, instead of remaining silent as it has until now and criticize the alleged silence on behalf of the Venezuelan State, to carry out a critical and public review of the complacent attitude that it maintained regarding those who organized and executed the coup d'etat that took place in the month of April of 2002 in Venezuela. […] For these reasons, based upon the norms of the system, both substantive and procedural, of the principles that serve to secure the credibility, effectiveness and efficiency of the system and the conduct that the Commission has maintained, it is surprising that this body pretends that the Venezuelan State maintain a moderate relationship without evidence of the will, materialized by concrete actions on the part of the Commission, to ensure its correct performance”.  Subsequently, the State argued that “it never committed itself to arranging a visit to Venezuela for the reasons previously indicated.  In any case, the State considered the possibility of a working visit, conditional upon the autocratic recognition of the Commission’s actions during the coup d'etat in April of 2002, which would be fundamental for the development of the visit and for working together with an agenda of subjects of interest to the State.”[173]

154.          With the purpose of advancing in the dialogue, the Commission wishes to recall that during the serious events that occurred on April 11, 2002, the Commission condemned the coup d'etat against the constitutional order by emitting a press release, in which it expressed, among other things, its most emphatic condemnation of the violent acts, deplored the dismissal of the highest officers from all branches of government, and noted that the events constituted an interruption of the constitutional order.[174] In this opportunity the Commission reiterated one more time its emphatic condemnation of the coup d’etat occurred in Venezuela on April 11, 2002.

155.          From the antecedents and the arguments furthered, the IACHR considers that the impossibility, for lack of consent or political will on behalf of a State, of the IACHR to visit a Member State, contradicts the spirit itself that lead the States to create the organs of the system for the protection of human rights as they defined in the Charter of the Organization of American States, the American Convention on Human Rights, and the Commission’s Statute.

156.          According to the intentions of the member states, the Commission and the Court are mechanisms to contribute to the development of "a system of personal liberty and social justice", which is the ultimate objective mentioned in the preamble of the American Convention.  The Commission plays a crucial role of support and assistance to the states for reinforcing observance of human rights in their jurisdictions. In keeping with these principles, the Commission renews its commitment to work with the Venezuelan State and society and, in particular, reiterates its interest in visiting the country in the near future in order to contribute to the development and enhancement of human rights in Venezuela and to strengthen dialogue with the State.

IV.       ADMINISTRATION OF JUSTICE AND IMPUNITY FOR VIOLATIONS OF THE RIGHTS TO LIFE AND HUMANE TREATMENT

157.          In recent years, the Commission has given particular attention to the administration of justice in Venezuela, analyzing compliance with the guarantees of independence and impartiality of justice sector operators and the situation as regards impunity for violations of human rights, in particular the right to life. Also in its recent annual reports, the Commission has expressed particular concern at the high percentages of provisional or temporary judges and prosecutors and the disregard of certain legal and constitutional procedures in the system used for their appointment and dismissal.

158.          Based on the information it obtained in 2006, in its analysis the Commission divides the issue into two segments: A) Guarantees of independence and impartiality of the judiciary and the Office of the Attorney General [Ministerio Público]; and, B) Right to life and impunity.
 

A.        Guarantees of independence and impartiality of the judiciary and the Office of the Attorney General

159.          In first place, the Commission considers it appropriate to mention an incident that drew internal criticism about the independence and impartiality of the judiciary.  The Commission received information according to which a number of judges, including some that sit on administrative courts, wearing robes at the inauguration of the current judicial year on January 26, 2006, had shouted slogans in support of the president of the Republic.[175] While these acts do not constitute irrefutable evidence of bias or subordination of the courts in Venezuela, the Commission considers that, over and above the political inclinations of each judge as a citizen and the legitimate expression of those inclinations, the institution of the judiciary and its officials, in the exercise of their respective powers, cannot be identified with a particular political opinion, whether it be that of the government of the day or of the opposition lest  questions be raised about their independence.

160.          As regards the nation-wide problem of provisional judges, the Commission notes that as a result of the modernization process that the State has been implementing in the judicial branch through the National Magistracy School and competitive examinations,[176] by the end of 2006, more than 80% of the positions of justice operators were filled by tenured officials.[177] In particular, in criminal matters, the State informed that currently there is an 80% of tenured judges who in relation to the remaining 20% the evaluations concluded in the last semester of 2006 and went on to the final phase of evaluation to obtain tenure in the first trimester of 2007.[178]  This constitutes a significant stride in terms of job stability for judges and the guarantee of their independence.

161.          The foregoing notwithstanding, the Commission has noted that the problem of the provisional status of judges continues to affect in particular the First and Second Courts for Contentious Administrative Matters.  According to the information available, at present all of the members of both courts have temporary status.[179]  As it mentioned in its 2005 Annual Report, the Commission considers it highly problematic that courts that must analyze important acts of the executive branch and, in particular, of the government have for several years lacked tenured judges with full guarantees of job stability.

162.          In addition, the Commission has received information that the processes to regularize the status of, or grant tenure to, provisional judges and the competitive examinations that have led to the appointment of new titular judges lack transparency and have not been carried out strictly in accordance with Article 255 of the Constitution and the Rules on Evaluation and Competitive Examinations for Entry to and Promotion in the Judiciary.[180]  According to information provided to the Commission, some of the objections concerning the tenurization process had to do with a supposed lack of reasoned grounds not to grant tenure to certain judges and an alleged breach of statutory rules that require the public announcement of competitions in notices published in two widely distributed national or regional newspapers as well as on the website of the Supreme Court of Justice.[181]

163.          On this point, the State indicated that all of the results of evaluations are justified pursuant to a three part assessment:  i) academic curriculum, post graduate studies, degrees and courses throughout the career; ii) evaluations in the performance as a judge; iii) oral and written exam in opposition to others judges of same rank.  According to the States, all of the competitions have been public and announced through the press and on website of the Supreme Court of Justice.[182]  

164.          The Commission observes that the information presented by the State and by some civil society organizations is contradictory, and regrets that it has not receive sufficient documentation, especially from the State, to verify the existence of irregularities concerning the tenurization process of temporary judges.  In any case, the Commission considers it appropriate to reiterate that the consolidation of a transparent judicial career and the resulting job stability that have obtained tenure in strict compliance with the procedures established constitutionally and legally, is fundamental to guarantee the independence and impartiality in their performance and has direct effects on the strengthening the access to justice.  In this sense, the Commission will monitor with special attention these processes and the additional information alleged in order to give greater attention to this especially important element for the transparency of the judiciary. 

165.          Finally, as regards the situation of provisional state prosecutors, it came to the attention of the Commission that from January to October 2006, 287 provisional, acting, or alternate prosecutors were appointed.[183]

166.          For its part, the State indicated that it entails a historical situation and that the Political Constitution of 1999 established public competition for the entry into a career as state prosecutor, whereas before it was a direct attribute of the General State Prosecutor.  Likewise, the State indicated that through the reform of the Organic Law of the Public Ministry – approved in first and second discussion –contemplates the regulation of the career of a state prosecutor to guarantee the stability of these state employees.  It also indicated the existence of a Plan of Institutional Growth corresponding to the period 2000 - 2007 whose main aim is the adjustment of the institutional structure to the necessities of the population.[184]

167.          The Commission values the efforts made by State with these types of programs, however, it observes that despite these programs, the situation has not improved substantially, considering it continues to receive information on the selection of public prosecutors without job stability.  The Commission reiterates that it finds this situation particularly troubling since, in addition to possible irregularities in terms of independence and impartiality as well as the lack of transparency that may underlie the constant dismissals and new appointments, the provisional status and correlative lack of job stability of the officials responsible for conducting criminal investigations and moving them forward inevitably also impairs the pursuit and conclusion of specific lines of investigation as well as compliance with deadlines in the investigation stage. Changes of investigative prosecutors adversely affect the progress of investigations, bearing in mind the importance, for example, of continuity in the collection and appraisal of evidence.[185] Accordingly, this situation may have negative consequences for victims’ rights in the context of criminal proceedings related to human rights violations

B.        Right to life and impunity

168.          The Commission wishes to emphasize that, as the Inter-American Court has established, it is the obligation of the States to reasonable prevent, investigate, and punish actions that implicate violations of the right to life, including those committed by State agents or individuals.[186]  In this sense, citizen security in Venezuela is an aspect of particular concern for the Commission given the high level of impunity with regard to numerous extrajudicial executions committed by States agents in the context of the phenomenon known as sicariato [paid killings] for the supposed “protection of citizen security.”  Moreover, it is a subject especially relevant because troublesome numbers of assassinations committed by hit-men have been confirmed and because of the slow-moving investigations in respect.  During the regular periods of sessions of 2006, the Commission received information on these topics.  In this Chapter, the Commission gives special attention to this situation and the impunity that surrounds these crimes.

169.          According to official data provided by the Office of the Attorney General between 2000 and 2005, the number of victims of homicides committed by agents of the state security forces came to 6,377, in which a total of 6,110 police officials were involved.  Of these cases, 3346 were homicides reputedly committed by agents of state police forces; 1,198 by agents of the Penal and Criminal Scientific Investigations Corps; 706 by municipal police forces; 140 by members of the National Guard; and 72 by members of the Directorate of Intelligence and Prevention Services (DISIP).[187] Thus, based on the information available, the Commission finds that serious levels of impunity similar to those of the last five years would appear to persist since it transpires from the report presented by the Prosecutor General to the National Assembly in April 2006 that in the more than 5,684 cases investigated by the Office of the Attorney General in which government servants are thought to be involved, only 1,560 officials have been accused, 760 formally charged, 315 deprived of their liberty, and 113 policemen convicted.[188]

170.          Another partial indication of the degree of impunity that cloaks violations of the right to life allegedly committed by agents of state security forces can be seen in the State of Bolivar.  According to publicly available information, in 2006, of the 891 cases of persons thought to been killed in presumed confrontations with the  police of that state, only four have gone to trial due to the difficulties encountered by prosecutors in mustering reliable information with which to secure an indictment.[189]

171.          It also came to the attention of the Commission that, for example, in the State of Lara there were an alleged 249 violent deaths in the first six months of 2006, 90% of which reportedly occurred at the hands of the state police.[190]  By the same token, during 2006, the Commission was informed of a number of cases that received a great deal of press attention. Cases in point include a group of street children who were allegedly set on fire by four military policemen in Caracas on August 21, 2006;[191] a massacre at a farm in Alto Apure on July 20, 2006, where seven adults and two children were murdered with the alleged participation of soldiers in the area;[192] and a massacre on September 29, 2006, in La Paragua, Bolívar State, in which four miners were killed, supposedly as a result of the use of force by soldiers.[193] With respect to the massacre in La Paragua, both the Minister of the Interior and Justice, Jesse Chacón, and the President of the Republic, said at a press conference that the investigations indicate at least “excessive use of force” by the military” .[194]

172.          The Commission values the advancements in the investigation of some of these events outlined in the information alleged by the State.  With regard to events of August 21, 2006 in Caracas, the State informed that public officers part of the Metropolitan Police were accused of homicide.  In relation to the massacre at Alto Apure, the State indicated that this case is currently at trial after the accusation against a member of the armed forces of homicide and illegal use of a firearm.  Concerning the massacre in La Paragua, Bolivarian State on September 22, 2006, the State informed of the accusations against various members of the armed forces of homicide as principals in fact and as accomplices.[195] 

173.          On other hand, the Commission is concerned at information it has received that witnesses and relatives who push forward investigations of violations of the right to life alleged to have involved state officials are victims of acts of violence and intimidation.  Such is the case, for instance, of the Mendoza family, who, while under the protection of precautionary measures requested by the Commission in 2002, were the target of an attack with firearms on March 4, 2006.[196] According to the information received, persons wearing ski masks fired 30 rounds from nine millimeter pistols at the home of the Mendoza family situated in Sector 8, Baraure II, Araure, Portuguesa State.  In the house at the time were two girls aged 11 and 13; two boys aged five and 12; two other boys aged eight; the boys’ grandmother Gabriela Carvajal, aged 60, and Messrs. Ramón Mendoza (45), José Mendoza (40), and César Mendoza (39). According to information in the possession of the Commission, the Mendoza family have participated actively in a complaint concerning the murder of three persons by so-called para-police groups: the brothers Ender (16), Alexander (25), and Gonzalo Mendoza (28), who were reportedly arrested in the presence of family members on November 28, 2000, by a detachment of uniformed officials of the Portuguesa State police, and later appeared dead in the morgue at J.M. Casal Ramos Hospital.