CONCLUSIONS

THE STATUS OF THE RULE OF LAW IN VENEZUELA

            523.     Since 1999 the IACHR has expressed itself through various mechanisms on the situation relating to the rule of law in Venezuela. The Commission has used various mechanisms provided in the American Convention for the protection of human rights, and in fulfillment of its mandate to stimulate the conscience of the peoples of the Americas it has alerted the international community to the progressive worsening of the human rights situation in Venezuela.

            524.     This report has identified weaknesses in the rule of law in Venezuela, and has focused primarily on examining the factors and causes behind the institutional crisis that has gripped the country, causing deterioration in the rule of law. On this point, the Commission has offered in each chapter a series of recommendations that it considers indispensable for restoring social peace in a democratic state and society. The intent of this report is to help the Venezuelan State in its analysis of the human rights situation in that country, as a State party to the American Convention on Human Rights, and to make recommendations for improving its compliance with its international obligations in the field of human rights. Consolidating and strengthening the rule of law represents an indispensable condition for the more effective protection of individual rights in Venezuela.

            525.     The Commission stresses that democracy and the rule of law are necessary conditions for the enjoyment and respect of human rights in any society. In this respect, the Commission notes that the collapse of the rule of law in a State party has repercussions that go beyond democratic governance: indeed the historical experience of Latin America has shown that institutional collapse undermines fundamental rights and creates fertile ground for subsequent violations of human rights. Therefore, it must be noted, in the first place, that there is a close triangular relationship between the rule of law, a democratic society, and the enjoyment of human rights.

            526.     The definition of the rule of law is based on three essential principles. First, the principle of the limitation of power, which is reflected in the constitutional distribution of power. In the second place, the principle of legality, which establishes that the State organs must exist and act under subjection to the law. The Constitution is the supreme law of the land, to which all State organs must submit themselves, including obviously the holders of the executive power, who may not exceed the stipulations of the Constitution. Finally, the third principle is that of the declaration of fundamental rights.

            527.     The fundamental corollary of constitutional rights is the possibility of recourse to the judicial organs, which must guarantee that rights are upheld. In fact, the judiciary has been established for the protection of rights and guarantees, and is undeniably the fundamental body for protecting human rights. Consequently, if the courts are subordinated or if their rulings are ignored, this represents an attack against the rule of law. In this context, the functioning of an independent and impartial judiciary as the guarantee of protection for human rights is fundamental for the rule of law.

            528.     As a form of political organization for a constitutional State, democracy is based on the principle that political sovereignty is vested in the people and that, in exercise of that sovereignty, the citizens elect their representatives, who wield political power, while respecting the rights of those whose views are in the minority. These representatives receive a mandate from the voters, who aspire to a decent life, to freedom and to democracy, objectives that can only be achieved through effective control over public institutions and through the existence of checks and balances between all the branches of government. While the citizens elect their representatives, they also participate in the process of taking decisions through a multitude of means of expression and peaceful assembly. The effective observance of human rights requires a juridical and institutional order in which the law takes precedence over the will of those who govern, and in which there is a proper balance between all branches of government, in order to preserve the expression of the popular will through the rule of law.

            529.     The organs of the inter-American system have on numerous occasions declared the importance of the democratic system and the rule of law for the enjoyment and protection of human rights. The Inter-American Court of Human Rights has said:

The concept of rights and freedoms as well as that of their guarantees cannot be divorced from the system of values and principles that inspire it. In a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law form a triad. Each component thereof defines itself, complements and depends on the others for its meaning.[268]

            530.     The Commission has declared:

Democracy and the rule of law are necessary prerequisites for achieving observance of and respect for human rights within a society. This involves exercising rights of political participation, respecting the principles of the judiciary’s legality, autonomy, and independence, and ensuring effective protection against actions by State agents.[269]

            531.     According to the Inter-American Democratic Charter,[270] the 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.  As well, transparency in government activities, probity, responsible public administration on the part of governments, respect for social rights, and freedom of expression and of the press are essential components of the exercise of democracy.[271]

            532.     Finally, the IACHR wishes to stress the fact that the effective protection of human rights requires not only progress towards full and authentic democracy, but also the assurance that such a system of political organization provides every person with the possibility of achieving respect and enjoyment for all human rights, both civil and political, as well as economic, social and cultural. It also constitutes the best guarantee for preserving democracy as a system, recognizing that as the people become convinced through their own personal experience that this is the best model of political organization, they themselves will provide the strongest guarantee against traditional dictatorships and other authoritarian forms of government.

            533.     With respect to the coup d'état in April 2002, the Commission reiterates that nothing can justify the breach of the Constitution or any attempt to prevent the functioning of key institutions such as the branches of government. The breakdown in the constitutional order constituted a violation of the basic principles of international law in force in the Americas, as reflected primarily in the Inter-American Democratic Charter, and the rights enshrined in the American Convention. At that time the Commission deplored the dismissal by decree iof the highest officers of the judiciary and of independent officials within the executive branch, and the suspension of the mandate of the members of the legislature.[272] On April 13, 2002, the Commission also requested information on the incommunicado detention of President Hugo Chavez and precautionary measures relating to the personal liberty and integrity and judicial guarantees of Mr. Tarek William Saab, President of the Foreign Relations Committee of the National Assembly.

            534.     In a similar vein, the OAS Permanent Council on April 13, 2002, issued a declaration to the effect that:

an alteration of the constitutional regime has occurred in Venezuela, which seriously impairs the democratic order (…).[273]

            535.     The IACHR again condemns in the strongest terms the violent events that cost dozens of lives and left more than 100 people injured. It is not the role of the IACHR to determine individual criminal responsibility for those events, but it is within its purview to insist upon the international obligation of the State to investigate and prosecute those responsible for the deeds committed between April 11 and 14, in accordance with the rules of due process, and to ensure that those deeds do not go unpunished.

            536.     The Commission recalls that, in investigating and in identifying and punishing those responsible for this attack against democratic institutions, the Venezuelan State must set an example of impartiality and respect for human rights, which implies, among other things, full respect for judicial guarantees and other rights and guarantees of the persons investigated for such deeds. The IACHR will continue to monitor these proceedings closely to ensure that they comply with the judicial guarantees enshrined in the American Convention on Human Rights.

            537.     The Commission has observed, as noted throughout this report, that between March 2002 and first quarter of this year more than 40 people were killed and some 750 injured as the result of street protests. The extreme political polarization and the resulting acts of violence that erupt periodically between demonstrators of different persuasions illustrate the growing political intolerance in the country. Among the signs of institutional weakness are the failure to enforce the new constitution, the perceived lack of independence of the branches of government, the growing concentration of power in the national executive, the impunity with which armed civilian groups and death squads conduct their activities, the tendency to confrontation and to denigrate the traditional political opposition on the part of the government, the constant attacks on journalists and the news media, the tendency to militarization of public administration through the increasingly prominent role of the armed forces, the growing radicalization of political stances in the context of widespread public discontent with the failure to meet social demands, controversies over the exercise of trade union rights, and the climate of harsh political intolerance and, in relation to the inter-American system, the repeated and persistent failure of the State to comply with precautionary measures granted by the IACHR and the provisional measures ordered by the Inter-American Court, all of which has been documented in this report and will be presented in summary fashion below.

•       Administration of Justice and Human Rights

            538.     In this section, the IACHR identifies two issues of great importance relating to the independence of the judiciary, the provisional status of judges, and the failure to comply with constitutional rules in appointing judges, as a mechanism for guaranteeing their impartiality and independence. As well, this section addresses certain aspects relating to composition of the Supreme Court and the Citizen Power, as a factor undermining their independence and autonomy to the detriment of the rule of law.

            539.     With respect to the provisional status of judges, the Commission was informed that only 250 judges have been appointed by competition, in accordance with constitutional rules. Of the total of 772 judges in Venezuela, the Supreme Court of Justice reports that only 183 are permanent, 1331 are provisional, and 258 are temporary. This means that 84% of the judges continue to be provisional or temporary, and lack tenure in their position. The Supreme Court ordered suspension of competitions for the appointment of judges until the list of jurors responsible for examining candidates is increased.

            540.     The IACHR considers that the provisional tenure of most of the judges in Venezuela affects their stability in office, which is a necessary condition for the independence of the judiciary.

            541.     Another aspect of concern to the Commission with respect to guaranteeing the independence and impartiality of the Venezuelan judiciary is the failure to apply the mechanisms established by the new Constitution for the election of their supreme authorities. On this point, the Commission considers that the failure to apply constitutional procedures as guarantees established in domestic law to ensure the independence of members of the judiciary calls into question the institutional legitimacy of the judiciary and undermines the rule of law. It is essential to proceed with appointment of the supreme authorities of the judiciary, in conformity with the Constitution, and to make the necessary amendments to internal rules.

            542.     Consolidating the rule of law demands a judiciary that is, and is seen to be, independent and impartial, and it is therefore essential to reverse the tenuous situation of most of the Venezuelan judges and apply constitutional mechanisms for appointing senior magistrates and authorities of the Citizen Power as guarantees established by the constitution. On this point, the Commission reiterates what it said at the end of its in situ visit, to the effect that the failure to apply the constitution fully creates legal insecurity that impedes full consolidation of the rule of law. The Commission therefore considers it urgent to adopt organic laws as the best means of establishing the mechanisms called for in the Venezuelan Constitution for the selection of magistrates of the Supreme Court of Justice, as well as the Public Defender, the Prosecutor General, and the Comptroller General.

            543.     Finally, with respect to the administration of justice, the Commission considers that the alarming levels of impunity are a critical factor in undermining the rule of law in Venezuela, and in the chronic repetition of violence. The impunity that prevails in a great number of cases of human rights violations, where an estimated 90% of cases never move beyond initial proceedings, is causing Venezuelan society to lose confidence in the justice system and is sparking a resurgence of violence, producing a vicious circle of impunity and violence. The impunity that surrounds human rights violations, in disregard of the State's obligation to investigate and punish those responsible, is a problem that must be addressed as a priority in the context of Venezuelan justice.

•        Civil society

            544.     Attacks against human rights defenders have taken place from various perspectives. The legitimate work of these defenders, in denouncing the outrages committed by parties to the social conflict, has prompted certain players to try to silence them through various means. The extreme polarization that exists has led various political groups to seek to discredit the actions of some human rights groups or individuals who are calling for justice and truth.

            545.     The IACHR has been receiving numerous complaints of attacks and acts of intimidation against persons devoted to protecting and promoting respect for the fundamental rights of Venezuelans. These acts of harassment against human rights defenders and human rights organizations sometimes include attempts on the life and physical integrity of defenders, and there is a series of documented cases in which defenders have been the target of many forms of intimidation.

            546.     On this point, the Commission considers it essential that the State take the steps necessary to prevent the collapse of guarantees for the work of human rights defenders and to provide effective protection of their life and personal integrity.

            547.     With respect to the "círculos bolivarianos", the IACHR notes that there is full information available on them at the web page of the Presidency of Venezuela, where it is apparent that they not only have ties to the national government but that those ties are institutionalized. In the second place, the Commission considers, with respect to the acts of violence attributed to these circles, that all the reported cases involving them have been characterized by impunity, and to this date responsibility for those deeds has not been clearly established, a factor that generates suspicion about their activities. In the third place, the IACHR considers that political participation, the right of association and freedom of expression are rights guaranteed in the American Convention and in this respect the “Bolivarian Circles”, as citizen groups or grassroots organizations, may in some circumstances be a suitable channel for the exercise of those rights. Nevertheless, the Commission believes that the expression of certain partisan political ideas cannot justify acts of violence or restrictions on the rights of other persons with different political views, or with specific professional roles, since, as the American Convention establishes, an individual's rights are limited by the rights of others, by the security of all, and by the just demands of the common welfare, in a democratic society.

            548.     The IACHR cannot discount the existence of other armed groups that are partisans of the government or the opposition. In fact, the IACHR knows of the existence of certain opposition groups that may also be armed, and considers that it is essential to investigate the existence of these groups, to disarm them completely and as quickly as possible, and to investigate and punish those responsible for the violent acts attributed to these groups.

•       State Security: the Armed Forces and Police Forces

            The Armed Forces

            549.     The Commission believes that the security of a democratic state lies fundamentally in values such as those of peace, liberty, justice, equality, protection of human rights and democratic coexistence. Therefore, civil society cannot be placed at the same level of responsibility as the State itself, which has a legitimate monopoly over the use of public force and is subject to domestic and international responsibilities that are different from those applicable to individuals.

            550.     In the second place, and with respect to the Security Council, the Commission considers it a priority to establish immediately, through legislation, the powers and attributes of this new body, as conditions for action by its members, setting strict limits on the scope and mechanisms of such action. Finally, the Commission observes that this new institution must be governed in strict observance of the principles of the rule of law as they relate to the independence and separation of powers, considering the importance of the responsibilities assigned to it, especially that of establishing the strategic concept of national defense.

            551.     A third aspect that is of special concern to the IACHR is the constitutional provision governing the powers and attributes of the National Guard, as a part of the Venezuelan Armed Forces responsible for internal security. Indeed, one of the Commission's concerns with respect to public safety is over the involvement of the Armed Forces in activities that should fall exclusively to the police. The Commission notes that in a democratic system there must be clear and precise separation between internal security, as the function of the police, and national defense, as the function of the Armed Forces, since these are substantially different institutions in terms of the purposes for which they were created, and their training and preparation.

            552.     The IACHR was also greatly concerned at the many statements it received about the excessive amount of political deliberation within the Armed Forces, and their undue influence on the country's political life. The Commission notes that this problem has a normative dimension, by virtue of the new Constitution’s suppression of the "non deliberative” character established expressly for the Armed Forces, as well as a factual dimension, in light of the constitutional rupture of April 2002. If the credibility of the Armed Forces is to be restored and if the rights of the citizenry are to be guaranteed, it is essential that the Armed Forces and the security forces should not have a deliberative role, but that may remain subordinate to the civil power and act impartially, and that they not be used for tasks relating to the maintenance of public order.

            553.     Finally, another aspect of concern to the Commission is the establishment of a procedural privilege in favor of generals and admirals of the Armed Forces whereby, in accordance with the Constitution, in order to bring them to trial the Supreme Court of Justice must first rule on whether there are grounds for doing so. On this point, the Commission considers that this requirement is not compatible with the rule of law as it relates to the proper administration of justice, because it could constitute a privilege that would facilitate impunity for members of the Armed Forces.

            554.     Consequently, it is essential that the Armed Forces not intervene in public security matters, unless they are subordinated to the civilian authorities. The State must demonstrate the political will to achieve these objectives.

            The police forces

            555.     According to information provided by the Ministry of the Interior and Justice, there are currently 95 police forces in Venezuela, 71 of which are municipal forces and 24 are state forces, in addition to the Criminal Scientific Investigation Corps (CICPC) and the DISIP (political police), which operate nationwide.[274] The States of Amazonas, Apure, Falcon and Portuguesa are the only ones that do not have municipal police forces and that rely exclusively on the state police.

            556.     On this point, the Commission notes a substantial shortcoming in the area of police activity: the National Assembly has not passed the National Police Corps Act, as called for in the fourth transitional provision pursuant to article 332 of the Constitution. It is essential to improve security and the public's sense of security by approving this law and establishing a National Civil Police Force, with the resources to train it properly as a democratic institution for purposes of public safety, similar to the police forces of the various states.

            557.     In examining the current status of the rule of law, the Commission considers that the events of greatest importance for their impact on institutional life are the activities of the death squads (grupos de exterminio), which apparently operate with the acquiescence of the state police, as will be discussed in the section on violations of the right to life; the police response to the events of April and the intervention of the Metropolitan Police, which has been denounced by a broad segment of the public as an example of the political polarization of Venezuela, in the sense that the Metropolitan Government is part of the opposition.

•        The right to life

            558.     The Public Defender of Venezuela has recognized the existence of groups known as parapoliciales ["para-police"] in seven States of Venezuela.[275] In Portuguesa, some 400 km from Caracas, more than 100 people are reported to have been killed by a self-styled “extermination group”, allegedly consisting of off-duty members of the state police and the National Guard.[276] A similar situation prevails in the States of Falcón, Yaracuy, Anzoátegui, Bolívar, Miranda, Aragua, and Caracas, where death squads are reported to have killed nearly a hundred people, with the acquiescence of the state police. It is important to note that these groups have been in existence for some time. In the past, similar events have occurred in other states of the country.

            559.     A supremely important question in analyzing this issue is the impunity that surrounds these executions and that allows these groups to operate. Indeed, there is a clear connection between impunity and the steadily rising number of these violent crimes.

            560.     The Commission considers that this serious problem, which has a direct impact on human rights, can be explained by the lack of police professionalism, widespread impunity, and rampant corruption. Moreover, these acts point to the absence of government policies for dealing with this situation, generating a spiral of impunity that is reflected in the periodic occurrence of violent acts.

            561.     The Commission concludes by recalling the press release issued at the end of its in situ visit in May 2002, in which it noted that the failure of the authorities to apply due diligence in investigating, prosecuting and punishing the members of the so-called death squads is a fundamental factor in their continued operation. The Commission reminds the State of its obligation to take urgent steps to dismantle these groups and to investigate and punish those responsible, highlighting the responsibility that falls to the various states of Venezuela in these cases, in accordance with article 28 of the American Convention taken in relation with article 1 (1) of that instrument.

•       The right to personal integrity

            562.     With respect to the right to personal integrity, the Commission notes that the sharpening of the institutional conflict in Venezuela has led to acts of violence extending to attempts on people’s lives, with numerous attacks against personal integrity. With respect to this right, the Commission has observed a number of particularly alarming aspects. In the first place, the high number of cases of torture and cruel, inhuman and degrading treatment at the hands of the State security forces; and in the second place, the failure of the competent State bodies to fulfill their duty to investigate reported cases and to punish those responsible, who generally enjoy impunity, thereby encouraging the repetition of such conduct; and the absence of effective oversight procedures to ensure the physical integrity of prisoners, both civilian and military. On this point, the IACHR stresses the need for urgent measures to prevent such outrages, and to investigate and punish those responsible in all cases.

•       The right to freedom of expression and thought

            563.     Freedom of expression in Venezuela remains a matter of particular concern. The Commission notes an alarming and generalized increase in attacks on the media and journalists, particularly those covering political events and demonstrations. The State of Venezuela must take the necessary steps to guarantee free exercise of freedom of expression, which is essential to consolidating democracy. The IACHR also expresses its concern over the State's failure to comply with the precautionary measures granted by the Commission and with the provisional measures granted by the Inter-American Court on behalf of journalists and social communicators.

            564.     The Commission considers that there are also other forms of obstructing the full exercise of the freedom of expression. One example can be found in the laws that criminalize offensive speech aimed at public officials, known as contempt laws (leyes de desacato), which are incompatible with Article 13 of the Convention.  Another example is the abusive use of emergency broadcast systems. The IACHR issued an appropriate press release condemning the abusive and unnecessary use of this mechanism, which, used in a highly discretionary manner, and for purposes alien to the public interest, may constitute a form of censorship. The various kinds of pressure brought to bear on the broadcast media by initiating administrative proceedings which, while abusive, also constitute an indirect restriction on the freedom of expression, are a third example.

            565.     The difficulty of public access to information continues to go unanswered; accordingly, any initiative by the government to facilitate free access to information will contribute to ensuring that the citizenry is better informed.

            566.     The IACHR has been concerned that there was little and at times no information available to Venezuelan society during the days of the institutional crisis of April.  Although there may be any number of justifications to explain this lack of information, to the extent that the suppression of information resulted from politically motivated editorial decisions, this should be the subject of some serious thinking by the Venezuelan media about their role at that moment.

            567.     Finally, the IACHR wishes to pay tribute to the valor of journalists who have continued to pursue their activities, even at risk to their physical integrity. As noted above, the IACHR considers that the intimidation of journalists has a devastating effect on democracy, and it therefore calls on Venezuelan society to embark upon a period of profound soul-searching, and highlights the need for the various sectors of society and of the government to refrain from identifying journalists and other social communicators as their opponents’ allies.

•        Trade union freedoms

            568.     The IACHR notes, with respect to the situation of trade union freedoms in Venezuela, that the political crisis and the climate of intolerance prevailing today have led to an increase in labor conflicts. The IACHR is particularly concerned over the mass dismissals of workers of PDVSA. The information available shows that 12,383 workers were dismissed from that State enterprise on grounds of having abandoned their workplace in the context of the so-called national civic strike that lasted from December 2002 until February 2003, and that those dismissals were ordered without any administrative procedures to guarantee due process.

            569.     Human rights organizations claim that the situation in Venezuela is characterized by constant interference in union affairs through government efforts to obstruct the activity of union leaders and to exert political control over the organized labor movement.[277] The Committee on Freedom of Association has pointed to "the extremely serious and urgent situation in Venezuela marked by numerous complaints of repeated violations of freedom of association for both workers' and employers' organizations”.

            570.     On December 3, 2000, the government called a referendum in which it asked voters if they were in agreement with reforming the trade union leadership through elections. The referendum resulted in a significant victory for the position in favor of reforming union leadership. On this point, the IACHR is of the view that allowing the population at large to participate in that referendum, i.e., including persons other than union members, entailed a violation of the right to form and join trade unions, and the right of workers to elect their leaders.

            571.     Once the results of the elections were known, the National Electoral Council refused to confirm the Governing Board of the Confederation as the legitimate leadership of that organization, alleging a series of irregularities. Consequently, the elected leaders of that Confederation were not recognized by the national authorities.

            572.     By virtue of the foregoing, the Commission concludes that there has been heavy-handed State interference in the affairs of labor organizations. As well, the Commission considers it important and urgent to resolve the problem of recognizing the leadership of the CTV, the principal Venezuelan labor confederation, in a manner consistent with the needs and rights of its members.

            573.     The IACHR recognizes that there has been a significant step forward in the area of trade union freedoms. On July 23, 2002, the Electoral Chamber of the Supreme Court of Justice ruled that action by the Supreme Electoral Council was of a subsidiary nature, and that therefore that body could only intervene when there was a dispute that the labor organization itself could not resolve. The Commission therefore recommends that the State adopt the necessary measures to give full trade union guarantees

•        General conclusions

            574.     In conclusion, the Commission regards all the situations identified in the various chapters of this report, and summarized above, as indicating a clear weakness in the fundamental pillars of the rule of law within a democratic society, under the terms of the American Convention on Human Rights and other international instruments.

            575.     The Commission reiterates its concern over the crucial problems that must be resolved on an urgent basis in order to reverse the decline in the rule of law in Venezuela, and to strengthen and preserve the constitutional State. It notes that civil society and international agencies agree that there has been a gradual deterioration in the human rights situation in the country.

            576.     The IACHR also wishes to highlight the significant progress that has been made in finding a peaceful solution to the institutional crisis, through the election route, a fact that clearly demonstrates the solid democratic commitment of the Venezuelan people. The Commission refers once again to the agreement signed by representatives of the government and the opposition on May 29, 2003, as part of the Negotiation and Agreement Roundtable. That agreement constitutes a fundamental document that marks a milestone in the current situation, whereby the parties have agreed that applying constitutional mechanisms is the proper institutional way of resolving the crisis. The Commission hails this achievement and call on all parties to continue to foster tolerance and democratic dialogue, and to apply the agreed principles jointly wherever they are needed.

            577.     Finally, on the basis of more than 40 years of experience in promoting and protecting human rights in the hemisphere, the IACHR considers it essential that all sectors of society avail themselves of mechanisms or agreements that make respect for the human rights recognized in the American Convention and the Constitution a frame of reference for all players in Venezuelan public life. Polarization and intolerance not only impede the working of democratic institutions but actively and dangerously undermine those institutions. A weak democracy, in the Commission's judgment, cannot mount a vigorous defense of human rights.

            578.     The Commission hopes that the Government of Venezuela and the other political players in the country, including members of the legislature and the judiciary, will continue to demonstrate the political will to seek solutions to the serious human rights problems affecting the country's inhabitants. Several of these problems have been identified in this report, which also contains the IACHR's considered recommendations.

            579.     The IACHR will continue to monitor the situation in Venezuela closely, paying particular attention to the measures adopted to apply the recommendations set forth in this report. The Inter-American Commission therefore offers the Venezuelan State and society as a whole its full cooperation in efforts to promote and protect human rights and to build consensus towards resolving problems in a democratic and institutionally legitimate context.

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