IACHR ANNUAL REPORT 2008

CHAPTER IV - HUMAN RIGHTS DEVELOPMENTS IN THE REGION

VENEZUELA

I.          INTRODUCTION

318.          The Commission prepared this section of Chapter IV of its Annual Report pursuant to Article 57(1)(h) of its Rules of Procedure.[386] The analysis contained here is based on the information reported during the Commission’s hearings and in other public sources.  In keeping with that article of its Rules of Procedure, on January 6, 2008 the IACHR provided the State with a copy of the preliminary draft of this section of its 2008 Annual Report and asked that it submit its views within one month. On February 6, 2009, the Commission received the State’s observations and comments, which, as pertinent, have been included in this report.

319.          In its 1997 Annual Report, the Commission spelled out the five criteria that it used to identify the member states of the OAS whose practices in the field of human rights merited special attention, and hence, inclusion in chapter V of that report.  In 2008, the Commission assessed the Venezuelan situation and found an environment hostile to political dissent.  That hostility took the form of intimidating acts during the November 2008 election campaign, combined with accusations and harassments targeted at nongovernmental organizations and human rights defenders due to the critical work they perform in monitoring the running of government.  It also found that reported murders and extrajudicial executions went unsolved and unpunished.  All these combined to create a situation inimical to the full exercise and enjoyment of rights protected under the American Convention to which Venezuela has been party since 1977.  The Commission therefore considers that the situation of Venezuela fits criterion five of the Commission’s criteria, which is as follows:

Structural or temporary situations that may appear in member states confronted, for various reasons, with situations that seriously affect the enjoyment of fundamental rights enshrined in the American Convention or the American Declaration.  This criterion includes, for example: grave situations of violence that prevent the proper application of the rule of law; serious institutional crises; processes of institutional change which have negative consequences on human rights; or grave omissions in the adoption of the necessary measures which would provide for the effective exercise of fundamental rights.

320.          In this chapter, the Commission will pay particular attention to the situations mentioned in paragraph 2 and also address issues related to the administration of justice, freedom of expression, and the situation of persons deprived of liberty. 

321.          On the other hand, during its 133^rd regular session, held in October 2008, the Commission decided to prepare a Report on the Situation of Human Rights in Venezuela. The Commission’s view was that a systematic evaluation of the situation in Venezuela was called for.  Accordingly, it will hold hearings on specific topics related to the human rights situation in that country.   

322.          Also, in its reply, the Venezuelan State questioned the Commission’s impartiality in dealing with the various topics highlighted in this chapter and reaffirmed that it would not allow the IACHR to visit Venezuela “until it has rectified its biased position […]”.[387]

II.                  PRELIMINARY MATTER

323.          The Commission expresses its concern over decision 1939 of the Constitutional Chamber of the Supreme Tribunal of Justice,[388] issued on December 18, 2008, which declares unenforceable the judgment of the Inter-American Court of Human Rights in the case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela[389] and, “in accordance with the provisions of Article 78 of the American Convention on Human Rights, requests the National Executive to denounce this treaty or convention, since in this judgment the Inter-American Court of Human Rights clearly has overstepped its authority.”  In its judgment, the Constitutional Chamber states:

The Chamber finds, in this case, that the execution of the August 5, 2008, judgment of the Inter-American Court of Human Rights would be prejudicial to essential constitutional principles and values of the Bolivarian Republic of Venezuela and could lead to institutional chaos within the justice system, in that it would modify the autonomy of the constitutionally established Judiciary and the legislatively instituted disciplinary system, and in that it aims to reinstate the former judges of the First Court of Administrative Disputes on the grounds of bias on the part of the Commission for Operating and Restructuring the Judicial System, when the latter has acted for many years, in thousands of cases, seeking to purge the Judiciary within the realm of disciplinary activities of judges. Additionally, the ruling of the Inter-American Court of Human Rights also disregards the finality of the decisions to remove the former judges of the First Court of Administrative Disputes, stemming from a lack of exercise of administrative or judicial remedies, or from the finding of inadmissibility of the remedies brought by the competent administrative and judicial authorities.

324.          The Commission finds that this jurisprudence disregards the international obligations undertaken by Venezuela as a State Party to the American Convention.

325.          The Inter-American Court has maintained that “the Court, as every international organ with jurisdictional functions, has the inherent authority to determine the scope of its resolutions, decision and their compliance cannot be subordinated to the mere decision of the parties because it would render inoperative the Court’s jurisdictional role, and consequently, the human rights protection system established in the Convention.[390] The Inter-American Court also has stated that “The States Parties to the Convention must guarantee compliance with its provisions[391] and its effects (effet utile) within their own domestic laws.”[392]

326.          In addition, Article 27 of the Vienna Convention on the Law of Treaties (1969)[393], the principles of which are reflected in the American Convention, codifies a basic principle of international customary law.[394]  The Honorable Court has stated on numerous occasions that:

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty […] since every treaty in force is binding upon the parties to it and must be performed by them in good faith (pacta sunt servanda).[395]

327.          The OAS General Assembly has stated that “the denouncement of inter-American legal instruments on human rights and withdrawal of recognition of the Court’s obligatory jurisdiction affects the regional system as a whole” and resolved, inter alia, “to reiterate that the judgments of the Court are final and may not be appealed and that the states parties to the Convention undertake to comply with the rulings of the Court in all cases to which they are party”.[396]

328.          On the basis of the foregoing considerations, the Commission appeals to the Venezuelan State to abide by the international obligations it assumed upon ratifying the American Convention.

329.          The Commission will now discuss the topics that warranted Venezuela’s inclusion in this chapter.  It will also present information received in 2008 regarding economic, social and cultural rights and the right to freedom of conscience and religion.

III.        ECONOMIC, SOCIAL AND CULTURAL RIGHTS

330.          In 2008, the Commission received information from the State concerning social programs aimed at eliminating the structural problems of inequity and discrimination in Venezuela.  At public hearings held at the IACHR in 2008, the State pointed to the work accomplished through a number of missions in the areas of education, health, food and social services.[397]

331.          According to the information supplied by the State, the goal of economic policy has been social inclusiveness, respect for human dignity and equality among the various sectors of society.   Working with that as its goal, the Venezuelan State said that it had succeeded in reducing poverty and extreme poverty.  To represent the progress, the State supplied figures comparing 1998 and 2007.  It noted that while in 1998 54% of the Venezuelan population was living in poverty, at the present time (2007-2008) that figure has declined to 33.07%.  It also asserted that the figures for extreme poverty had also dropped, from 20.3% in 1998 to 9.4% in 2007.  The State pointed out that the rate of unemployment had dropped by 62.4%, from 16.5% in 1998 to 6.3% in 2007.  It observed that in order to give Venezuelans a more decent standard of living, the Venezuelan State had increased social investment by over 66% by 2007, thereby increasing the numbers of Venezuelans with elementary, secondary, diversified and higher educations. 

332.          The State reported that under the Robinson Mission [Misión Robinson] 1,282,543 Venezuelans were taught to read and write, which will help Venezuela win UNESCO certification as an illiteracy-free territory.[398]  The State also reported on the beneficiaries of the school food program.  According to figures supplied by the State, in 1999 252,284 students were beneficiaries of the school food program, whereas in 2006 the program was serving 1,815,977 school-age children and adolescents.

333.          According to the State, its social policy has also focused on the health sector.  The State reported that whereas in 1989 social investment in health was 1.36%, by 2007 that figure had increased to 2.25%. It pointed out that the system’s governing principles were free, universal, comprehensive, equal health care, social integration and solidarity.  It maintained that in 2007, 11,373 primary care units were operating, which it said was clear evidence of the development in health care services; in 1998 only 4,804 primary care units were in operation.  The Barrio Adentro Misión [Inside the Neighborhood Mission] was developed to provide free and permanent medical care to the most vulnerable sectors.  According to the figures supplied by the State, in 1998 free medical coverage was 21% and there were 20 physicians for every 100,000 inhabitants; by 2007, free medical coverage had risen to 95%, and there were 59.3 physicians for every 100,000 inhabitants.  According to the State, the Barrio Adentro Misión, the Misión Habitad (which builds housing), and MERCAL (providing foodstuffs at reasonable prices) together form a comprehensive plan to address the most pressing needs of the poor.  The State reported that the “Misiones” were being financed by the State’s own industry, the PDVSA.[399]

334.          Doubtless, the social and economic programs instituted by the Venezuelan Government warrant more in-depth study from the human rights perspective.  The Commission recognizes the importance of this subject and hopes to have the opportunity to compile empirical data in order to be able to eventually address it. Therefore, the Commission reiterates its interest in conducting a visit to Venezuela[400] which would allow the gathering of information with regard to the social, cultural and economic programs developed by the State. Finally, the Commission notes that although Venezuela signed the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights on January 27, 1989, it has not yet ratified that instrument.  The Commission urges the Venezuelan State to complete ratification of all regional human rights treaties.   

IV.        PARTICIPATION IN DEMOCRATIC LIFE:  POLITICAL RIGHTS

335.           One of the main challenges in building democracies is to allow the various political factions within a State to have their voice, thereby ensuring tolerant, active, participatory and peaceful dialogue among all social and political sectors.

336.          Political rights, defined as those that recognize and protect the right and duty of every citizen to participate in his country’s political life, are by nature the rights that serve to strengthen democracy and political pluralism.  Political rights are important basic human rights within the inter-American system and are closely linked to a set of other rights that make participatory democracy possible.[401]  The OAS member states recognized the relationship between democracy, political rights and human rights when they approved the Inter-American Democratic Charter, Article 3 of which states that:

Essential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government.[402]

337.          The Commission has written that representative democracy--one of whose key elements is the popular election of those who hold political power--is the form of organization of the state explicitly adopted by the member states of the Organization of American States.[403]

338.          The Commission has also stressed the direct relationship between the exercise of political rights and the concept of democracy as a form of organization of the State, which in turn presupposes effective observance of other fundamental human rights.  The concept of representative democracy is based on the principle that political sovereignty rests with the people, who elect their representatives to exercise political power.  These representatives, moreover, are elected by the citizens to apply certain political measures, which in turn implies that the nature of the policies to be adopted have been widely debated (freedom of expression) among organized political groups (freedom of association) that have had the opportunity to express themselves and meet publicly (right of assembly).[404]

339.          In a recent case, the Inter-American Court held that:

[…] The right to vote is one of the essentials for the existence of democracy and one of the ways in which citizens freely express their will and exercise their right to political participation.  This right implies that citizens are able to decide for themselves and elect freely and as equals those who will represent them in taking decisions on public affairs…  [It also wrote that] Political participation through exercise of the right to be elected presupposes that citizens can place their names in nomination as candidates, as equals, and can hold elective public office if they win the number of votes needed to do so.[405]

340.          The jurisprudence of the Court makes clear that the American Convention recognizes and protects political participation through the right of active suffrage (the right to vote), through the right to be a candidate for elective office, and through adequate election rules that provide for the political process and the conditions under which that process unfolds, to ensure effective exercise of that right without arbitrary and discriminatory exclusions. In this connection the State, in its reply, said that “in the interest of political tolerance the legitimate President, Hugo Chávez Frías, in December 2007, issued a decree pardoning all persons on trial for the coup-related events. Over the past 10 years, international organizations have supervised 12 electoral events and found them to have met all international standards”.[406]

341.          That notwithstanding, in 2008, the Commission received worrisome information about acts of intimidation against sectors of society that are openly critical of or express their disagreement with the policies of the government.  According to the reports received, this situation was particularly in evidence in the November 23, 2008 election.  In its reply to this section, the Venezuelan State indicated that the elections of November 23, 2008, were conducted in a transparent fashion and monitored by various observers. It said in this connection that “nearly 17 million Venezuelans were empowered to elect […] 22 governors, 328 mayors, and 233 local legislators in 22 of the country’s 23 states, as well as in the Federal District of Caracas. A total of 134 foreign observers, from 52 countries, monitored the transparency of the polling in 10 states and in the Federal District. The CNE distributed 11,500 voting centers and 35,000 tables in Venezuelan territory for the elections.

342.          During the 2008 hearings the IACHR was informed about the debate taken place in the Venezuelan society and in the international sphere with regard to the declarations of disqualification for the exercise of the public office of people who post their candidacy for the elections of November 23.  In accordance with information of public knowledge, in February, 2008 the General Comptroller of the Republic sent to the National Electoral Advice a list of persons that were disqualified for achieving  post in popular election. Various actors of the political life of Venezuela adduced that a large percentage of those preceded from post of public election were candidates of the opposition.  At present, there are current before the Commission several cases related to the compatibility of the norm by means of which the General Comptroller of the Republic disqualified applicants to be postulated to charges of popular election with the American Convention[407]. The CIDH reserves any pronouncement related to the compatibility of this norm and its application with the American Convention.

343.          In the said context, the Commission received information about public statements made from the highest levels of government which might have had an effect of producing an atmosphere of intimidation and threat of voters and candidates for election or re-election to public office. 

344.          The Commission learned that during the November 2008 election, the President of the Republic had allegedly made statements that did nothing to contribute to democratic dialogue and that could have instigated the use of violence.  Among those statements were the following:  “If you let the oligarchy (…) return to power, I may have to call up the armored tanks to defend the revolutionary government and the people of Carabobo”[408]; “On Tuesday, the Venezuelan president reminded the opposition parties with candidates running in the regional elections slated for next November 23 that his “is an armed revolution” and that “the people are ready to defend the revolutionary process”[409]; “Ramón Martínez is not just going to lose the governor’s office; he’s going to end up in jail; he’ll see, we’re going to sweep you out of office, you dirty traitor; on November 23 the people of Sucre will throw you out of office”[410].

345.          The Commission considers that the said expressions favors an environment of intimidation which has an adverse effect on the free and full exercise of freedom of expression and ultimately undermine the rule of law.  Given the above considerations, the Commission is urging the Venezuelan State to ensure that its electoral procedures and elections foster an atmosphere of respect for a plurality of ideas and opinions and thus guarantee the participation of Venezuela’s various political parties and movements.

V.         SITUATION OF HUMAN RIGHTS DEFENDERS

346.          The IACHR reiterates its concern over the situation of human rights defenders in Venezuela, especially given the statements made by various authorities to discredit and disparage their work and the reports received alleging the use of lawsuits against them.  As pointed out in its report on human rights defenders, the IACHR has observed that these actions taken by the State have created adverse conditions and have had a chilling effect on the work of human rights defenders, often silencing public opinion critical of government policy for fear of reprisals[411].

347.          In 2008, the Inter-American Commission continued to receive troubling information about the situation of human rights defenders in Venezuela.  In this section, the Commission will discuss situations that warrant special attention, in the following order: a) life and physical well-being; b) public statements that discredit the work of human rights defenders; c) the institution of legal action, and d) administrative and financial controls.

A.         Life and personal integrity

348.          The Commission has learned that a number of threats and attempts have been made against the lives and physical well-being of human defenders in Venezuela.

349.          The Commission also received information about the situation of Mr. José Luis Urbano, President of the Asociación Civil Pro-Defensa del Derecho a la Educación [Civil Association for the Right to Education].  In defending and promoting the right to education, Mr. Urbano filed a number of complaints in May 2008 to protest the unlawful fees being required of children attending public schools in the state of Anzoátegui.  His complaints allegedly elicited death threats and threats to his physical well-being[412] purportedly made by state officials.  Mr. Urbano was also allegedly followed and kept under surveillance by unknown persons, presumably because of his work of defending and promoting human rights.[413]

350.          The IACHR also learned that no progress has been made in the investigations instituted into the acts of harassment committed against human rights defenders.  Specifically, it was informed that the criminal inquiries instituted to investigate the telephone and e-mail threats against the Committee of Relatives of Victims of Events between February 27 and early March 1989 (COFAVIC) was closed after multiple summonses were issued to the victims[414] in September 2008.

351.          The IACHR must remind the Venezuelan State that the best way to prevent attacks and threats against human rights defenders is to conduct investigations, judicial proceedings and punish those responsible.  Additionally, the investigation process ought not to become a procedural burden for those who have been threatened or attacked because of their work to defend and promote human rights.

352.          The Commission has previously expressed concern stating that “the attacks on the lives and personal safety of human rights defenders is intended to ’make an ‘example’ of the victims, bring a halt to reporting of violations, getting the human rights organizations to leave certain areas, and/or bringing about a drop in the number of complaints presented.”[415]

A.                 Statements discrediting the work of human rights defenders

353.          In 2008, the IACHR received information alleging that high-ranking Venezuelan government officials continue to make disparaging statements about the work of those dedicated to defending and promoting human rights in Venezuela.  The Commission observes that, in keeping with the pattern of recent years,[416] State officials continue to publicly belittle human rights defenders in order to discredit the complaints that the defenders lodge alleging human rights violations.  In some cases, public officials accuse human rights defenders of being part of a plan to destabilize the government and to defy “the revolution” because they were receiving funding from organizations and countries abroad.

354.          Specifically, the IACHR received information about the situation of Mr. Humberto Prado, a member of the Observatorio Venezolano de Prisiones [Venezuelan Prisons Observatory] (OVP), an organization dedicated to protecting persons deprived of liberty in Venezuela.  According to the information received, Mr. Prado was the target of a number of verbal attacks allegedly coming from government officials.  Specifically the Minister of the People’s Power for Interior Affairs and Justice, Ramón Rodríguez Chacín, was alleged to have referred to the OVP as “suspected human rights defenders in Venezuela, [who] have taken it upon themselves to decide whether or not human rights are being observed in Venezuela; we know these people are of doubtful moral fiber and are making a living off of the problems in prisons.”[417]  Similarly, the Vice Chairwoman of the Congressional Interior Policy Committee, Iris Varela, stated that Mr. Prado “is a profiteer of the prison situation.”[418]  As for the situation of Mr. Humberto Prado, in May 2007 the Commission petitioned the Inter-American Court to order provisional measures so that the State would take the necessary measures to guarantee the life and physical well-being of Mr. Prado and enable him, as director of the Venezuelan Prisons Observatory, to continue his work of promoting and defending human rights in Venezuela. In response to Mr. Prado’s situation, the State indicated that “the fact that a criminal investigation has been instituted by the government does not constitute an act of intimidation.”

355.          The Commission also expresses concern over the accusations that state officials made against Mr. Carlos Ayala Corao[419] during an international proceeding with the inter-American system where Mr. Ayala Corao was serving as the victims’ representative in the case Gabriela Perozo et al. v. Venezuela. The Commission recalls the Venezuelan Government that under Article 61 of the IACHR’s Rules of Procedure the “State may not prosecute the witnesses or experts, or carry out reprisals against them or their family members because of their statements or expert opinions given before the Commission”.

356.          The Commission also condemned Venezuela’s expulsion of José Miguel Vivanco and Daniel Wilkinson, Executive Director and Deputy Director of the Americas Division of Human Rights Watch, a nongovernmental international organization dedicated to the protection of human rights. The government ordered the two men’s expulsion the night of September 18, 2008, after Human Rights Watch released a report on the situation of human rights in Venezuela.  The Commission observed that this measure “affects the right to freedom of expression of the representatives of that organization and constitutes an act of intolerance of criticism which is an essential component of democracy.”[420]

357.          The Commission is calling upon the Venezuelan State to create an environment in which criticism is protected within its territory, not just for those who, as members of international human rights organizations, express their concern over the observance of and respect for human rights, but also for those who are within Venezuelan territory.  The Commission believes that the measures taken by state authorities to discredit human rights defenders help to cultivate conditions inimical to the protection and promotion of human rights and are profoundly harmful to the democracies of the Hemisphere.”[421]

C.         Initiation of legal actions

358.          In 2008, the Commission learned that human rights defender Humberto Prado, like other members of the OVP, were allegedly being investigated by the Ministry of Interior Affairs and Justice for treason and sedition, presumably because of the various protests that inmates staged inside Venezuelan prisons.[422]

359.          The Commission has previously observed that “States sometimes use criminal laws that restrict or limit the means used by human rights defenders to carry out their activities.  […] In other cases criminal proceedings are instituted without any evidence, for the purpose of harassing the members of the organizations, who must assume the psychological and economic burden of facing a criminal indictment. […] These proceedings generally involve charges of rebellion, attacks on public order or state security, and the formation of illegal groups.[423]  It also noted that “A person whose liberty is unlawfully restricted or who lives in fear of being subject to imprisonment or held against his will imprisoned  because of his actions to defend the rights of other persons is directly limited in his ability to do his work.”[424]

360.          The Commission has also learned that on November 30, 2007, three United Nations Special Rapporteurs[425] expressed concern over constitutional reform in Venezuela, especially the reform that would prohibit associations with a political aim from receiving funding from foreign sources.  Their concern was that the definition might be selectively applied to human rights organizations to prevent them from accessing international funding.

361.          In conclusion, the Commission is of the view that the above-described situations constitute obstacles for the work of defending and promoting human rights in Venezuelan territory.