174.          According to the information provided by the State, a public prosecutor from the Public Ministry was assigned to the case and is currently being investigated.[197]   The Commission calls upon the State to initiate in a serious and diligent manner the investigations and criminal proceedings of the events as a measure of effective protection and guarantee of non repetition.  

 

175.          The impunity in cases of extrajudicial executions committed by State agents mentioned above, is exacerbated by the small number of prosecutors assigned to cases involving violations of fundamental rights.  According to publicly available information, a mere 27 prosecutors are charged with the approximately 5,680 cases and their activities are not necessarily limited exclusively to those. There are also other structural difficulties, such as the fact that investigative procedures are carried out with the participation of colleagues of the accused, which gives rise to the risk that the scene of the crime could be altered or evidence tampered with out of what the Office of the Prosecutor General has referred to as “reflex complicity” or “misconstrued solidarity.”[198]

 

176.          The Commission reiterates the necessity of the Venezuelan State to investigate the events which could have resulted in violations of the right to life as a result of the use force by the State’s agents.  The Commission recalls the reiterated position of the Inter-American Court, which holds that "force should only be used by the State security agencies as an exception, and be planned and limited proportionately by the authorities ."[199]  The Inter-American Court has also ruled that, “Any loss of life resulting from excessive use of force is arbitrary .”[200]  The Commission values that more these situations are known due to an increase in statistical information available, which has seen repercussion in public policies such as the adjustment of the relevant regulations.  Among the legislative measures adopted, the State emphasized the Law of Protection of Victims and Witnesses and others, as well as the Code of Conduct for Civilian and Military Civil Officers, in the context of National, State, and Municipal Police Forces.[201]  

 

177.          In this connection, the Commission considers that in the context of the police reform under discussion in the country, measures to prevent cases of abuse of authority that result in deprivation of the right to life or attacks on the physical integrity of persons should be addressed as core issues.

 

178.          The Commission has also been following with concern the situation of impunity in cases of contracted or paid killings [sicariato] perpetrated against campesinos or persons involved in land claims, and extrajudicial executions of socially marginalized persons by death squads.

 

179.          This year the Commission continued to receive information from both civil society organizations and the State, and has noted a number of initiatives adopted by the State, as well as factors that would appear to generate and perpetuate impunity for this type of violation of the right to life.

 

180.          For example, the Commission has become aware of complaints against the Penal and Criminal Scientific Investigations Corps for negligence in examination of evidence, a situation that reportedly obstructs and delays investigations of extrajudicial executions, in particular in the Eastern Region of Venezuela.[202] In addition, the Commission has also learned that the Office of the Attorney General is underfunded.[203]

 

181.          Accordingly, the commission values such initiatives of the Office of the Attorney General as the creation of Technical and Scientific Advisory and Investigation Units as mechanisms to detect inconsistencies and omissions in the investigative activities of the judicial police, as well as a plan to create Physical Evidence Custody Areas.[204]

 

182.          In contrast to the impunity that surrounds the majority of the cases described in paragraphs 21 to 24 of this chapter, in cases of paid killings of campesino leaders in the context of the agrarian reform process, the Commission observes with satisfaction various initiatives adopted by the State to combat impunity.

 

183.          Indeed, the Commission takes note of the measures adopted by the Office of the Prosecutor General, such as the creation of Anti-Impunity Coordination Units, which are teams composed of representatives of different government agencies as a response to crimes committed in the wake of the application of the Land Law.[205] The Commission also regards as positive the classification of the crime of “paid killing” in Article 12 of the Law against Organized Crime,[206] as well as the initiatives implemented by the Office of the Attorney General in conjunction with the Ombudsman to provide assistance to families of victims to provide for their needs in the areas of housing, health, social security, and education.[207]

 

184.          As regards investigations, the State informed that in August 2005, based on the number of paid killings of which it was aware in rural areas, it commissioned 18 prosecutors at the regional level and seven at the national level. According to this information, after whittling down the initial number, the aforementioned authorities managed to identify 69 alleged victims, of which 34 could be placed in the category of paid killings and the remainder were presumed ordinary homicide victims.[208] From the information presented by the State in 2006, no further cases have been officially identified.

 

185.          The State reported that the 34 cases “gave rise to 40 indictments, 17 court-issued arrest warrants that are waiting to be served, and eight final judgments that involve 18 persons, 12 of whom have been given prison sentences. Furthermore, according to the results of 16 investigations, 24 persons have been identified as being involved in the commission of these crimes. At present, 26 persons who have been indicted are awaiting public oral trial in nine proceedings, and 17 proceedings are pending at the preparatory stage, in which efforts are underway to identify the culprits."[209]

 

186.          In addition, the State informed the Commission that in the context of the investigations, the collaboration of the National Amred Forces has been fundamental in locating  and bringing the relatives of the campesinos that have been assassinated to the Office of the Vice-President to hear directly their positions and needs on June 9, 2006.  Also, it informed that the President of the Republic approved a budgetary amount to attend to the necessities of the immediate relatives of the victims, which is being administered by the Ministry of Agriculture and Land.[210] 

 

187.          The Commission values the will of the State to eliminate impunity in the cases of paid killings  of campesinos.  However, the Commission notes disparity between the figures of the Office of the Attorney General and those gathered from the press, civil society organizations and even the Ombudsman. This is an aspect of particular concern for the Commission since, on one hand, it suggests that to some degree the crimes are being rendered invisible, and, on the other, that the mechanisms adopted by the State to prevent and combat impunity are not sufficient to address the problem in its real dimension and in a manner consistent with the State’s obligation to investigate and prosecute violations of the right to life ex officio when they come to its attention.

 

188.          In conclusion, the Commission calls on the State to take all necessary steps to eradicate the impunity that cloaks the matters outlined in this section, overcoming institutional and other barriers  that appear to obstruct a prompt, meaningful and diligent investigation, the resulting identification of both the perpetrators and planners and, as the case may be, imposition of the appropriate penalties.

 

189.          Finally, the Commission reiterates that any measures adopted to combat impunity should be based on actual analyses, both of the dimension of human rights violations committed by individuals and agents of the State, and of each of the factors at the institutional level, in the Office of the Attorney General as well as the judiciary, that would appear to generate patterns of impunity.

 

V.        SITUATION OF PERSONS DEPRIVED OF LIBERTY[211]

 

190.          The situation of persons deprived of liberty in Venezuela continues to be a cause of distinct concern for the Commission.  In 2006 and early 2007 acts of violence have been recorded that led to loss of life and the serious physical injury of hundreds of prisoners.

 

191.          At the regular sessions held by the Commission in 2006 and the observations of February 26, 2007, the Venezuelan State presented information on a "Humanization Plan" pursued by the Ministry of the Domestic and Justice Relations, that encompasses all of the country's prisons and aims to reduce violence in them, improve sanitation, and strive toward the social reintegration of inmates.[212]  The State also presented specific information on the prisons of "La Pica" and "Yare I and II" which are currently under the protection of provisional measures ordered by the Inter-American Court on February 9, 2006, and on March 30, 2006, respectively.  The State provided information on a number of measures implemented at the aforementioned facilities, including improvements in infrastructure; an increase in custodial staff; periodic inspections to confiscate, inter alia, firearms, cutting and thrusting weapons, projectiles, and drugs; introduction of creative workshops and sports activities; enrolment of inmates in the Rivas and Robinson I and II education programs; and and doctor’s consultations.

 

192.          In spite of the steps taken by the State, the Commission is troubled by the continued acts of violence recorded at Venezuelan prison facilities in general.  Overall, the figures are alarming. From January to November 2006, approximately 378 deaths and 883 injuries were registered at prisons in Venezuela,[213] and there were approximately 1,034 violent incidents in the first three quarters of 2006.[214]

 

193.          In September, for example, another five inmates (William Mesías Brito, Jhonny José Cabezas, José Gregorio Rojas Padrino, Joan José Alcoba Salazar, and Orlando José Montilla Guevara) reportedly died and two were injured (Jonás Cortés Sánchez and Arquímedes Bermúdez). Furthermore, two inmates (Joan Alcoba Salazar and Orlando José Morillo) were reported to have died on November 20, 2006.[215]  There have also been repeated reports of escapes, including a mass breakout on April 16, 2006, and the escape of the prisoner José Andrés Díaz Rodríguez, on May 25, 2006.[216] To compound this there have been reiterated hunger strikes[217] and incidents of visiting family members locking themselves in as hostages.[218]

 

194.          In addition, from March 30 to December 2006 at least seven people are reported to have been killed and nine injured by firearms inside Yare I Capital Region Penitentiary Center, as well as one death caused by a firearm at Yare II.

 

195.          According to figures on public record, 91% of the total deaths were caused by firearms, while 50% of those injured received their wounds from cutting and thrusting weapons.[219] The highest number of fatalities and injuries was registered at Uribana prison where there were 51 reported deaths as of October 2006.[220] In the first two months of 2006 it was estimated that at other prisons considered equally dangerous, 15 of every 100 inmates suffered injury or death. In Barinas nine deaths and 16 injured were reported; and at Rodeo I and II, three deaths and 16 injured.[221]

 

196.          The Commission considers that this situation is partly caused by a lack of effective controls to prevent the entry of weapons into prisons, a shortage of properly trained custodial staff, procedural delays, and substandard prison conditions.  In its observations to the present chapter, the State indicated that to confront the situation of violence in the detention centers and prisons, it has been applying “safety mechanisms among which it highlights the ordinary and extraordinary inspections […] resulting in large part, in the confiscation of psychotropic, and narcotic substances, arms made in prison, firearms, mobile communication devices, alcoholic beverages, among other prohibited items.  Likewise, metal detectors have been implemented.

 

197.          These causes mentioned by the IACHR were also reported by the Ombudsman of Venezuela following the incidents that occurred in the early days of 2007 at Uribana and Guanare prisons, in which approximately 22 prisoners died and 13 were injured, and about which the IACHR expressed concern in a press release.[222] 

 

198.          In his recent statement on the events in Uribana and Guanare, the Ombudsman of Venezuela said, “According to our enquiries, these events came about as a result of a confrontation between bands propitiated by overcrowding in judicial confinement centers, procedural delays, shortages of custodial staff, possession of drugs and weapons by inmates, and the absence of a proper system to separate prisoners according to the types of crime committed."[223]

 

199.          The situation in Venezuelan prisons has also led inmates to organize mass strikes which have, on occasion, ended in acts of violence resulting in loss of life and physical injuries. Indeed, it came to the attention of the Commission that in 2006 prisoners staged hunger strikes at several prisons in the country that, in some instances, ended with acts of violence and fatalities.[224]  In July 2006 there were reports that inmates at eight prison facilities declared themselves on hunger strike, demanding the reform of certain articles of the Organic Code of Criminal Procedure and the Criminal Code as well as the application of the Constitution.  Inmates at the prisons of Cumaná, Carúpano, Uribana, and La Pica later joined the strike.[225]  The State indicates that in face of the hunger strikes to protest the deficiencies of the Venezuelan criminal procedural system, a “temporary commission of Judges, adopted and coordinated by the Supreme Court of Justice in order to hear the demands related to judicial and procedural matters made by the inmates” was established.  In addition, it informed that with the Law of the Reform of the Organic Code of Criminal Procedure, the National Assembly gave an adequate response emphasizing improvements in the application and granting of alternative means of serving a sentence.  

 

200.          In October 2006, the Bureau for Custody and Rehabilitation of Prisoners[SW5]  of the Ministry of the Interior and Justice and the National Guard declared themselves on alert after three hunger strikes broke out simultaneously.  At Barinas 660 inmates announced themselves on strike as a result of alleged physical and psychological abuse and also to demand an end to procedural delays.[226] They also demanded the introduction of measures to enable sentences to be served under the open system, work details and parole. According to press reports, the crisis erupted on October 19 when members of the National Guard entered the prison and, following an altercation, left three inmates injured (Pedro Torres, Jeikson Camargo, and José Garrido) and another inmate dead (Juan Carlos González). At Uribana prison 30 inmates declared a hunger strike, announcing that over the following hours the rest of the 1,720-strong prison population would join their cause. At the prisons of Vista Hermosa and El Dorado a total of 459 inmates declared themselves on strike.[227]

 

201.          Furthermore, in November 2006, the inmates of Rodeo I and II prisons held a strike in protest at the July 2002 decision of the Juvenile Court of Guatire to prohibit the entry of minors to these prisons because neither offered adequate conditions for visits.  Following the intervention of judges from the Criminal Circuit Court of the State of Miranda, the inmates ended their hunger strike after an agreement was reached to improve conditions at the prisons so that the children of prisoners could visit them.[228]

 

202.          The Commission is also concerned at the high percentage of prison inmates in Venezuela who have not received a conviction and comprise approximately 56% of the prison population, or 10,000 prisoners of a total of 19,000.[229] Also troubling is the absence of guidelines for segregation and classification of prisoners according to categories, a situation that directly contributes to overcrowding and substandard infrastructure, sanitary, and security conditions.

 

203.          In light of the situations of violence indicated above, the Venezuelan State recognizes the deterioration of the penitentiary system and indicates that although a number of programs and policies have been adopted to confront this crisis, these have not lead to “absolute results that will help prevent eventual violations of the rights of the inmates.”  The State also indicates that the “the Venezuelan State’s efforts are manifested in the new penitentiary management, represented in the current Ministry of the Interior and Justice and the Vice- Minister of Citizen Security who have defined the specific strategies to tackle the penitentiary issue.”  The Commission acknowledges the efforts taken to confront the penitentiary crisis and calls on the Venezuelan State to increase and redouble efforts to take the necessary steps to guarantee the life and humane treatment of persons deprived of liberty in prisons and other detention centers in the country.  In particular, the State should adopt preemptive measures to prevent repetition of acts of violence and loss of human life, ensuring control of the use of force by strengthening discipline at detention centers, as well as through the appropriate administrative and judicial investigations. 

 

204.          The Commission reiterates that the State is the guarantor of the rights of all persons who are in its custody. The obligation that stems from this position requires the machinery of the state and its agents to refrain from any acts that might violate the fundamental rights of detainees and must seek, by all available means, to ensure that detained persons can exercise their rights.  Therefore, the State has the erga omnes obligation[230] to protect prisoners from any attacks on their life and person by third parties, including other prisoners.[231] As the Court has ruled, one of the inalienable obligations of the State as the guarantor of the life and physical integrity of persons deprived of liberty is to provide for them conditions at least compatible with their dignity[SW6] .[232]

 

VI.       DEMOCRACY, PARTICIPATION IN GOVERNMENT AND HUMAN RIGHTS

 

205.          The Commission commends the Venezuelan citizenry on their large and peaceful turnout at the polls in the presidential elections of December 4, 2006, which resulted in the reelection of President Hugo Chávez Frías.[233]  The Commission takes note of the political and social change taking place in Venezuela designed to consolidate democratic socialism, which the president-elect proposes to deepen on the basis of his continued presidential mandate.

 

206.          The Commission considers that it is an inherent part of the democratic transformation and enhancement processes undertaken by the countries in the Hemisphere to safeguard observance of human rights, fundamentally through policies and practices designed to ensure for persons the full exercise of their civil and political rights, as well as their economic, social, and cultural rights. These processes benefit from the existence of government policies that promote a plurality of ideas and eliminate any measures that discriminate against individuals or groups of persons by preventing their equal and full participation in the political, economic, and social life of their country for reasons of “race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition”.[234]

 

207.          The Inter-American Commission has held that the concept of representative democracy is founded upon the principle that it is the people who have political sovereignty and that in exercise of that sovereignty, they elect their representatives to exercise political power.  These representatives, moreover, are elected by the citizens to apply certain policy measures, which in turn means that the nature of the policies to be applied has been widely debated --freedom of thought-- among organized political groups --freedom of association-- that have had an opportunity to voice their opinions and assemble publicly --right of assembly--. The observance of these rights and freedoms calls for a legal and institutional order wherein the law take precedence over the will of the governing and where certain institutions exercise control over others so as to preserve the integrity of the expression of the will of the people --a constitutional state or a state in which the rule of law prevails.[235]

 

208.          In this context, the democratic system and the observance of the rule of law are crucial for effective protection of human rights. In accordance with international instruments on human rights. A state in which the rule of law prevails is one that functions soundly and that equitably and effectively fulfils its responsibilities in the areas of justice, security, education, and health. In the final analysis, the rule of law entails full respect and effective exercise of the human, political, economic, social, and cultural rights of the inhabitants of states, ensuring access to better and increased protection of the values of human dignity.

 

209.          One of the main challenges for the consolidation of democracies has been the harmonization of political differences within states in order to ensure tolerant, active, participatory and peaceful dialogue among all social and political sectors.  The UNDP’s Human Development Report 2000 highlights the willingness to participate of the peoples of the world: “People do not want to be passive participants, merely casting votes in elections. They want to have an active part in the decisions and events that shape their lives.”[236] Upon signing the American Convention, states parties recognize 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 persons, and so established that essential rights include civil, political, economic, social, and cultural rights.  In its Report, the State indicates that the legal structure of the country has been designed to invigorate individual and communal  participation in order to strengthen the democratic bodies, in this sense, article 2 of the Law on Communal Councils establishes:  “The communal councils within the constitutional framework of a participatory democracy, are occasions for participation, articulation, and integration between diverse organizations, social groups and citizens, that permit the public to directly initiate public policies and projects aimed at responding to the necessities and aspirations of the communities in the construction of a society of equality and social justice.”[237] 

 

210.          The Commission wishes to underscore that political rights, which are understood as those that recognize and uphold the right and duty of all citizens to participate in the political life of their country, are essentially rights that foster the strengthening of democracy and political pluralism.  With respect to this right, the Inter-American Court of Human Rights has ruled that "it is indispensable for the State to create optimal conditions and mechanisms for the effective exercise of political rights, observing the principle of equality and nondiscrimination."[238]

 

211.          Contrary to the aforementioned concepts and case law of the inter-American system, the Commission regrets that it received information in 2006 denouncing the existence of acts of harassment and intimidation through discourse belittling human rights defenders and groups or individuals who are critical of the policies or objectives of the government.

 

212.          The Commission received complaints from public sector workers that mentioned that they are forced to attend acts organized by the government party wearing clothes that identify them as party supporters under the threat of possible dismissal if they fail to comply with the orders of their superiors.  The complaints received also give accounts of public servants who have allegedly been subjected to pressures at their places of work in the context of the electoral campaign in December 2006.  To provide an example of the type of pressure placed on public servants, one complaint transcribed parts of a speech given by Mr. Rafael Ramires, Minister of Energy and Petroleum and president of the state-owned company PDVSA, in which he reputedly said:

 

We had to speak clearly, as you have heard me say about the things I am talking about and which we are repeating, and which yesterday we said in the press, that the new PDVSA is red, red as can be from top to bottom […] We are not afraid to act; we removed 19,500 enemies of the country from this company and we are prepared to carry on doing so to guarantee that this company is in line and responds to the love that our people as expressed for our President […] We support Chávez here … and anyone who is not comfortable with that position must give up their post to a Bolivarian […] we had to get rid of a person, a man in our operations area, who permitted the candidate Rosales to land and move about in the middle of our area. What the hell? What kind of nonsense is that? Have they all gone mad? Have we really being infiltrated by these scrawny animals? By the enemies of this revolution? Know this: we are not going to stand for it.  If we find anyone doing anything like that they’ll be fired like a shot.

 

213.          According to information received, these expressions had been endorsed by other high-ranking state officials, which has a menacing effect on the exercise by public servants of their political rights and freedoms of association and expression.

 

214.          The Commission also received in 2006 information about other intolerant tendencies towards sectors of society that are openly critical of or express dissent with the policies of the government.  These tendencies had been reflected in public statements or speeches made both by high-ranking officials of the executive branch and by members of the National Assembly.

 

215.          Such was the case of a group of more than 70 civil society organizations that work on different issues, which, in the framework of the participation process on what was then the draft International Cooperation Bill, made their position publicly known on June 8, 2006.  Subsequently at the session of the National Assembly of June 13, 2006, at which the first debate on the draft bill was held, several members of the assembly referred to the organizations as “coup plotters” who “give the impression of being human rights defenders when what they do is receive financing from the US Department of State to conspire against the Bolivarian Republic of Venezuela and the sovereignty of our people."[239] The Commission issued a statement on this dubious incident, expressing concern in press release 26/06.[240] 

 

216.          The Commission also continued to receive complaints in 2006 about expressions designed to discredit professionally human rights defenders.  It came to the attention of the Commission that following the request and participation of the coordinator of the Venezuelan Prisons Observatory, Humberto Prado in the framework of the provisional measures for La Pica prison, he was the object of a number of derogatory remarks by government officials.  The Court took this incident into consideration in its decision and even made a special request for the work of human rights defenders to be respected.

 

217.          Subsequently, the Commission received information that on July 11, 2006, a member of the National Assembly said that Humberto Prado had instigated a “prison disturbance.” Furthermore, he said, “He is also a member of Opus Dei; he is part of a conspiracy and not just recently.  There are also three proceedings pending against him on which decisions have not been reached and we are going to write to the Office of the Attorney General to inquire what happened.  He was also pardoned when he was a prisoner at Yare I. He tries manipulate things to his advantage (…) We all know who he is. He goes from prison to prison stirring up trouble."[241]

 

218.          The Commission was also informed that other deputies reportedly linked the organization Caritas Venezuela to Colombian paramilitaries, a situation which, according to the complaint, created increased risk for members of organizations who work in highly dangerous border areas.[242]

 

219.          The Commission again calls on the state to prevent a repeat of these situations since in addition to belittling and discrediting the essential work of human rights defenders, they can help to endanger or increase the risk to their lives and physical well-being.  Therefore, it specifically reiterates one of the recommendations made to the states to “refrain from making statements that stigmatize human rights defenders or that suggest that human rights organizations act improperly or illegally, merely because of engaging in their work to promote and protect human rights […]" (See Report on the Situation of Human Rights Defenders in the Americas, recommendation 10, p. 90)."

 

220.          The Commission considers that the conduct described in paragraphs 65 to 71 of this chapter do not foment a climate of political tolerance that encourages the active participation of all sectors of Venezuelan society.  Participation in government and political rights are not guaranteed simply by the observance of and possibility to exercise the right to vote or the possibility to stand for election, but, necessarily entail the observance of a whole series of other rights that includes the right of association, freedom of assembly and freedom of expression.

 

221.          The rights freely to express political opinions that are critical of the government administration or to associate and participate actively and critically in the political, economic, and social life of a country inevitably require a system of laws and institutions in which the law comes before the will of the governors, the existence of controls exercised by some institutions over others to preserve observance of the rule of law, and the notion of collectiveness, as opposed to a monopoly of power in the hands of a single person or a like-minded group of people.[243]

 

222.          In this connection, within the parameters of the law and in keeping with the limits established by international human rights law, political rights should not only be guaranteed for persons with ideas that are favorably received by the government of the day or regarded as inoffensive or as a matter of indifference, but also for those that are actively critical and which, therefore, are unwelcome to the state or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society.”[244]

 

223.          Based on the foregoing, the Commission calls on the Venezuelan state to ensure a plural framework for discussion that permits inclusive and democratic dialogue on all public matters for all sectors of Venezuelan society.

 

VII.     THE INTERNATIONAL COOPERATION BILL

 

224.          The Commission examined the text of the International Cooperation Bill adopted at its first debate on June 13, 2006, which warrants particular attention, given its possible implications that the text, as approved at its first debate by the National Assembly, could present for the exercise of the right to freedom of association in general, and, in particular, to the work of organizations of human rights defenders that receive external financing for their activities.[245]

 

225.          Pursuant to the powers provided for in Article 41.b of the American Convention and with the intention of contributing to discussion before the National Assembly on the bill mentioned, the Commission presents the following recommendations and observations.  These have the purpose of advancing measures, regulations and laws that strengthen the respect of human rights in accordance with the standards and jurisprudence of the system. 

 

A.      The need for registration not to hinder or restrict the possibility of free association and the activities of organizations

 

226.          The organs of the inter-American system have consistently held that the rights to freedom of assembly and of association are significant rights that protect against arbitrary interference by the state when persons choose to associate with others, and are fundamental to the existence and functioning of a democratic society.[246]  In that regard, the standards of the inter-American system[247] require that any restrictions that states are permitted to impose must be established strictly by law and be necessary in a democratic society, in the interest of national security, public safety or public order, or to protect public health or morals or the rights and freedoms of others.

 

227.          In the Report on the Situation of Human Rights Defenders in the Americas, the IACHR referred to some of the conditions that states must ensure for the exercise of freedom of association. In this connection, the Commission recommended that states adopt measures to

 

Ensure that the procedure for entering human rights organizations in the public registries will not impede their work and that it will have a declaratory and not constitutive effect. The states should guarantee that the registry of the organizations will be processed quickly and that only the documents needed to obtain the information appropriate for registering will be required. Domestic laws should clearly establish the maximum time frames for state authorities to answer requests for registration.

 

228.          By the same token, the IACHR also called on member states to

 

Refrain from promoting laws and policies regarding the registration of human rights organizations that use vague, imprecise, and broad definitions of the legitimate motives for restricting their establishment and operation.

 

229.          According to the case law of the Inter-American Court and other international organizations, such as the ILO Committee on Freedom of Association, to require prior authorization for the creation or operations runs contrary to the exercise of freedom of association. This does not mean that, in principle, registry systems are at odds with international standards. However, laws that confer on authorities discretionary powers for the authorization of organizations in registries could contravene that right. Accordingly, international standards recommend that for a registry system to be in accordance with these standards it must guarantee that it shall be of a declaratory nature (notification system) but not constitutive (authorization or permit system).

 

230.          In this regard, the IACHR notes that some articles in the bill at present under discussion by the National Assembly could be interpreted as granting powers of authorization and not of notification to the registry proposed in Article 17 of the bill. Article 18 of the bill provides that the entry of nongovernmental organizations in the “Integrated Registry System” is “compulsory and constitutes an essential requisite in order to be recognized by the Venezuelan State as entities eligible to engage in cooperation activities with their counterparts in other countries."  The Commission finds that said provision could be interpreted in the sense that only organizations accepted in the registry could pursue their activities.

 

231.          The risk that this provision be interpreted in a restrictive manner to limit the exercise of freedom of association arises from the general vagueness of the bill’s language, which accords broad powers of regulation and implementation of the law to the government. Thus, Article 16 of the bill contains the definition of what is considered a “nongovernmental organization” for the purposes of the law. Apart from requiring organizations to have, inter alia, legal standing to operate, the bill also provides that they shall “have a structure that sufficiently guarantees the fulfillment of their objectives."  The bill does not set out clear guidelines for the authorities in charge of that certification.

 

232.          The Committee on Freedom of Association has found in similar cases that provisions that set out vague guidelines empower the authorities in charge of registration to act in a discretionary manner, which could lead to the negation of its declaratory nature. In the words of the Committee:

 

Although registration procedure very often consists in a mere formality, there are a number of countries in which the law confers on the relevant authorities more or less discretionary powers in deciding whether or not an organization meets all the conditions required for registration, thus creating a situation which is similar to that in which previous authorizations is required.[248]

 

233.          In this regard, international organizations recommend that any requisites demanded by authorities be clearly and precisely stipulated by law.[249] In this connection, the Commission calls on the National Assembly to debate those requirements so that they are formulated in a legal manner. Such requisites should be limited to those necessary to ensure the openness of the registration system in accordance with the above-transcribed recommendations in the Report on the Situation of Human Rights Defenders in the Americas.

 

234.          The Commission also recommends that the wording of the bill be amended to remove any possibility of interpretation that entry in the said registry shall be a condition in order to partake in the corporation resources centralized by the State and that lack of registration shall not prevent organizations from seeking additional resources (distinct from those contained in the cooperation fund created by the law) or from engaging in activities paid for with those resources.

 

235.          Finally, the IACHR considers that advantage could be taken of the law under discussion to implement the recommendation made in the aforementioned report on human rights defenders so as to “[e]nsure that the human rights organizations whose registrations are rejected have available to them a remedy to challenge that decision before an independent court.”

 

B.        The establishment of priorities with regard to cooperation should not limit the autonomy of organizations or prevent them from carrying out activities not considered a priority by the State

 

236.          Many civil society organizations in the Hemisphere receive financing from the governments of the States where they pursue their activities and, furthermore, implement projects that they co-manage with local and national authorities. By contrast, other organizations devote themselves to issues that either are not a priority in the policies of the States where they carry out their work, or are designed to monitor government activities, criticize and suggest alternatives to improve the performance of States, and draw attention to obstacles to the advancement and realization of collective interests.

 

237.          Under the standards of the inter-American system, either of these two forms of association is legitimate and, therefore, States should protect and encourage both of them. As Article 6 of the Inter-American Democratic Charter provides, “It is the right and responsibility of all citizens to participate in decisions relating to their own development. This is also a necessary condition for the full and effective exercise of democracy. Promoting and fostering diverse forms of participation strengthens democracy.”

 

238.          Chapter II of the bill under consideration creates the “International Cooperation and Assistance Fund,” the purpose of which, according to Article 12 of the bill, is “to finance technical and scientific cooperation programs, projects and activities in keeping with foreign policy priorities and the national interest”. The introductory articles of the bill set out the “Areas of cooperation” and cooperation “priorities” that would guide the allocation of resources. These include “primarily those established in the National Development Plan, as well as humanitarian assistance; training for integral human development; human exchange, scientific and technical assistance; social measures; provision of services and materials; support for domestic industry and improvements in quality of life" (Article 6). The bill also says that "[i]nternational cooperation priorities shall be center on the areas of education and culture, science and technology, social assistance, and economy and finance" (Article 7).

 

239.          The way these provisions are worded at present makes it impossible to determine if cooperation priorities or areas would be restricted to the funds attracted by or managed in this fund, or if those priorities would apply to all cooperation funds executed in Venezuela. Furthermore, the current wording of these provisions can be interpreted in the sense that in carrying out their activities social organizations would have to abide by government policy priorities set out in development plans. Such an interpretation would limit the possibility to associate freely and could result in a restriction of the ability of civil society to take steps to exercise genuine public oversight of the activities of the State.

 

240.          In this regard, the Inter-American Court has ruled that freedom of association consists of the ability not only to constitute organizations, but also “to set into motion their internal structure, activities and action programme, without any intervention by the public authorities that could limit or impair the exercise of the respective right."[250] Consequently, the IACHR calls on the National Assembly to amend the language of the aforementioned provisions in keeping with the above-cited standards and recommends that the State engage the human rights organizations concerned in a public dialogue, in order to discuss and examine the criteria and rationale contained in the bill currently under consideration and come up with a law consensualized with these and other civil society organizations, taking into account international instruments for protection of human rights.

 

VII.     FREEDOM OF EXPRESSION

 

241.          The exercise of the right to freedom of expression in Venezuela continues to be a matter of special concern for the Commission. In 2006, the IACHR received continuous reports, in particular through the Office of the Rapporteur for Freedom of Expression, of situations that impaired the normal exercise of this basic right. The information received told of the murder of two journalists; acts of aggression and threats directed at journalists; an increase in the number of criminal proceedings against social communicators, and acts that could constitute forms of indirect restriction of the exercise of the right to freedom of expression in Venezuela.

 

242.          The following paragraphs outline some of the more emblematic cases reported to the IACHR in this connection. The information contained in this chapter can be supplemented with the analysis of the situation of freedom of expression in Venezuela made by the Office of the Special Rapporteur for Freedom of Expression in its Annual Report 2006 at the request of the IACHR.[251] 

 

243.          In 2006, the IACHR was informed of the murders of the photographer Jorge Aguirre of El Mundo newspaper[252] and of the journalist Jesús Flores Rojas, who worked for the newspaper Región.[253] These murders could be connected with the exercise of their profession as journalists.

 

244.          In its observations, the State indicated that in relation to the assassination of Jorce Aguirre a “serious, impartial and effective investigation was conducted that helped to establish the facts, determine the motives of the assassination, and to identify and punish those responsible.”  The State indicates that these investigations led to the conclusion that the death of Mr. Aguirre is due to a common crime not connected to the exercise of his profession.  Concerning the case of Flores Rojas, the State informed that the Office of Fundamental Rights of the Public Ministry informed that the public prosecutors investigating the case had not yet established the circumstances surrounding the assassination, and that the Public Ministry had granted protective measures in favor of the journalist’s daughter. The Commission appreciates the information alleged by the State, and requests it to continue to inform the Commission on the investigations and its results.  Furthermore, the Commission recalls that the Declaration of Principles on Freedom of Expression adopted by the Inter-American Commission on Human Rights says at principle 9 that, " The murder […]of […] social communicators […] violate[s] the fundamental rights of individuals and strongly restrict[s] freedom of expression. In the aforementioned cases, the Commission through the Office of the Special Rapporteur for Freedom of Expression deplored the acts, expressed its concern, and urged the State to undertake a meaningful, impartial, and effective investigation to elucidate the facts, including the determination of the motives for the murders, and identify and punish the culprits in order to prevent a repetition of such acts.

 

245.          With respect to acts of aggression against journalists and other media workers, the Commission expresses its concern at acts of this nature, which would appear to obstruct the free practice of journalism, both by communicators of media organizations regarded as opponents of the government, as well as those belonging to the state-owned media.[254]

 

246.          The Commission continued to receive information with respect to an increase in lawsuits against journalists that could act as a deterrent against the exercise of freedom of expression. In this regard, the IACHR was informed of criminal proceedings against those who criticize matters of public interest, through allegation either of the crime of contempt, or of the crimes of libel, criminal defamation, slander or affront [vilipendio].[255]

 

247.          While it is clear that in Venezuela the media and their social communicators engage in broad discussion and criticism of government policies, in some cases that legitimate activity has given rise to acts of intimidation or indirect pressure that are contrary to the exercise of freedom of expression in a democratic society.[256]

 

248.          In 2006, the Commission received information that the government announced the review of the broadcasting concession granted to certain media organizations for reasons that could include the reporting of those organizations.

 

249.          The Commission recognizes the power of the government to manage the radio spectrum, to establish in advance the duration of concessions, and to decide whether or not to renew them upon their expiration. Nevertheless, the State should also exercise that power bearing in mind its international obligations, which include ensuring the right freely to express ideas and thoughts of any kind without indirect restrictions on the exercise of the right to freedom of expression by reason of the editorial opinion of media organizations. The Commission believes that one of the fundamental requisites of the freedom of expression is the existence of a wide range of information and availability of opinions to the public without being subject to direct and/or indirect pressures. That is to say, freedom of speech not only has to be guaranteed as for the circulation of information or ideas that are received favorably or considered inoffensive or indifferent, but also to that might offend, turn out to be ungrateful or disturb the State or to any sector of the population.[257] In effect, the media allow individuals to form their own political opinion and then compare it with that of others. Only when the individual is informed he/she will be able to evaluate and freely adhere or take a position within the political spectrum.[258]

 

250.          Article 13.3 of the American Convention on Human Rights and Principle 13 of the IACHR Declaration of Principles on Freedom of Expression prohibit any indirect pressure by the State to influence the reporting of social communicators or undermine the independent exercise of the right to impart information. In other words, it is not permissible under international human rights standards to control or impose pressure on the media so that the only ones that exist are those whose reporting is either in favor or critical of the government, weakening any critical oversight of the performance of the State by individuals and media organizations in the framework of the democratic game. Indeed, Principle 13 of the Declaration of Principles on Freedom of Expression provides that, "[t]he exercise of power and the use of public funds by the state, the granting of customs duty privileges, the arbitrary and discriminatory placement of official advertising and government loans, the concession of radio and television broadcast frequencies, among others, with the intent to put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express threaten freedom of expression, and must be explicitly prohibited by law." The CIDH believes that in the processes of tender for the awarding of licenses of the radio electronic spectrum, the States must strive, under the principle of equality of opportunities, to provide open and transparent procedures that contain clear and reasonable criteria that avoid any political discriminatory consideration linked to the editorial line of the media.

 

251.          Furthermore, in 2006, the Supreme Court of Justice of Venezuela ratified the validity of contempt laws that had prompted the Commission to express concern in past press releases and reports. It should be recalled that, echoing the interpretation of the European Court of Human Rights, the Inter-American Court has ruled that:

 

The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance.  No doubt Article 10 para. 2 (art. 10-2) enables the reputation of others - that is to say, of all individuals - to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.

 

Thus, in the case of public officials, individuals who exercise functions of a public nature, and politicians, a different threshold of protection should be applied, which is not based on the nature of the subject, but on the characteristic of public interest inherent in the activities or acts of a specific individual.  Those individuals who have an influence on matters of public interest have laid themselves open voluntarily to a more intense public scrutiny and, consequently, in this domain, they are subject to a higher risk of being criticized, because their activities go beyond the private sphere and belong to the realm of public debate. Therefore, in the context of the public debate, the margin of acceptance and tolerance of criticism by the State itself, and by public officials, politicians and even individuals who carry out activities subject to public scrutiny, must be much greater than that of individuals.[259] 

 

252.          In this connection, the Commission reiterates its position with respect to the need for Venezuela to make its criminal laws consistent with the recommendations contained in the case law of the inter-American system and in the Declaration of Principles on Freedom of Expression that set the standards for interpretation of Article 13 of the American Convention.

 

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