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II. POLITICAL RIGHTS AND PARTICIPATION IN PUBLIC LIFE
18. Political rights, understood as being those that recognize and protect the right and the duty of every citizen to participate in his or her country’s political life, are by nature rights that serve to strengthen democracy and political pluralism.
19. With respect to political rights, the American Convention establishes in its Article 23 that all citizens have the right to participate in the conduct of public affairs, directly or through representatives freely elected; the right to vote and be elected in genuine periodic elections, carried out with universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and the right to access, under general conditions of equality, to the public service of their country.
20. Article 23 of the American Convention refers to political rights not simply as rights but also as opportunities, which means that States must create the optimal conditions and mechanisms to enable any person who is the holder of political rights to have the opportunity to exercise those rights effectively, while respecting the principles of equality and nondiscrimination.[12] The Convention is also clear in declaring that the State may only regulate the exercise of these rights for reasons of age, nationality, residence, language, education, civil or mental capacity, or conviction, by a competent judge, in criminal proceedings.
21. The Inter-American Commission has emphasized that there exists a “direct relationship between the exercise of political rights and the concept of democracy as a way of organizing the state” and it went on to refer to the necessity of guaranteeing citizens and organized political groups the right to gather publicly, permitting and fomenting a broad debate about the nature of the political decisions required for the measures adopted by the representatives elected by the citizens.[13]
22. The Commission has also observed 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.[14]
23. For its part, the Inter-American Court has held that “it is essential that the State generates the optimum conditions and mechanisms to ensure that these political rights can be exercised effectively, respecting the principles of equality and non-discrimination.”[15] It also has recognized[16] that in the inter-American system, the relationship between human rights, representative democracy, and political rights is expressly set forth in the Inter-American Democratic Charter, which states the following:
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.[17]
24. The Inter-American Court has also held that the effective exercise of political rights constitutes an end in itself and also a fundamental means that democratic societies possess to guarantee the other human rights established in the Convention.[18]
25. In light of these standards, the IACHR will analyze some issues that affect the enjoyment of political rights in Venezuela, such as the use of state structures for political campaigns; the political disqualification of candidates through administrative means; the appropriation of powers of elected authorities; retaliation for political dissent; and limitations on peaceful demonstrations.
A. The right to participate in the conduct of public affairs and to vote and be elected in genuine periodic elections
26. With respect to the right to participate in the conduct of public affairs, directly or through freely elected representatives, the State asserts that in Venezuela each and every political right recognized in the Constitution is exercised without limitations of any kind but for those that the law prescribes and that
… [t]housands of political and social organizations go about their daily business without engaging in any type of unlawful or lawless activity; […] similarly, at the individual level, thousands of citizens in public and private circles engage in activities of all types, many of whom receive direct support from the State to enable those activities to materialize.[19]
27. The right to associate for political purposes is protected under Article 67 of the Constitution of Venezuela. That article recognizes that the right to participate in elections by nominating candidates can be exercised not just by political parties, but also by associations having political ends, and even by individual citizens.
28. Article 67 of the Venezuelan Constitution does not expressly use the term political party, so that the field of citizen participation is opened up to include other forms of organizing for political purposes. Under Article 70 of the Constitution, these forms of political participation include voting to fill public offices; referendums; recall referendums; legislative, constitutional, and constituent initiatives; the open town hall; and the citizens’ assembly, whose decisions are binding. In social and economic matters, the forms of citizen participation include citizen services; self-management; joint management; cooperatives in all their forms, including financial cooperatives; savings and loan associations; and community enterprise and other forms of partnership, guided by the values of mutual cooperation and solidarity. Article 62 of the Constitution makes reference to the people’s participation in public affairs, and underscores the State’s duty to ensure the public’s involvement in establishing, executing, and overseeing public affairs as a necessary means to engage them and thereby guarantee their full development, both individually and collectively.
29. The Commission has followed attentively some of the measures taken by the State to promote participation in political life and exercise of political rights and, among these initiatives, the Commission has taken a positive view of the public consultations in the framework of the National Assembly’s legislative business. The IACHR also takes a favorable view of the fact that state agencies are exploring ways to get Venezuelans more involved, either directly or through representatives.
30. With respect to the right to vote and be elected in genuine periodic elections, carried out with universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters, the State has made the point that over the last ten years, twelve elections have been held in Venezuela, all under the supervision of international organizations which found that all international standards had been observed.[20]
31. Indeed, the Commission observes that since the presidential elections held in Venezuela on December 6, 1998, Venezuelans have gone to the polls on a number of occasions. In April 1999, a referendum was held to vote on the holding of a National Constituent Assembly to draft a new constitution; in that referendum the “yes” vote won. In July of that same year, an election was held to choose the members of the National Constituent Assembly. Once the new Constitution was drafted, a referendum was held in December 1999 in which the new Constitution was approved. In July 2000, general elections were held yet again to re-legitimize all the branches of government. In October 2004, elections were held to elect governors, mayors, and regional deputies. In December 2004, a recall referendum was held to determine whether President Chávez should be recalled from office; the “no” votes won.
32. New parliamentary elections were held in December 2005. The principal opposition parties decided to withdraw and called upon voters to boycott the polls, alleging a lack of confidence in the National Electoral Council. In December 2006, new presidential elections were held and Hugo Chávez Frías was re-elected. In December 2007, a referendum was held to approve a constitutional amendment supported by the executive branch that, among other things, would have done away with term limits on the presidency. The referendum was voted down. In November 2008, regional and municipal elections were held for a total of 603 popularly elected offices. On February 15, 2009, a new referendum was held in which the majority of voters supported elimination of term limits on the office of the president and other popularly elected offices in Venezuela.
33. According to the State, “nowhere in the world is the electoral process more trustworthy and more closely scrutinized than here in Venezuela, where all participating candidates are able to enjoy all the political and civil rights.”[21]
34. For a number of years, opposition organizations had argued that Venezuela’s elections were fraudulent. However, after December 2007, when the constitutional amendments proposed by President Chávez were voted down by a narrow margin of votes, the allegations of fraud diminished considerably. The State officials’ acceptance of the referendum defeat in built confidence in the National Electoral Council and weakened the impact of the repeated claims of election fraud in previous elections.[22]
35. Even the State cited the following to illustrate that the exercise of democracy is guaranteed in Venezuela:
On December 2, 2007, the twelfth set of elections held during the nine-year administration of President and Commander-in-Chief Hugo Rafael Chávez Frías was held, and the first in which his administration met defeat. By a slim margin, the “no” vote ended up winning. President Chávez acknowledged the victory within hours of the National Electoral Council submitting the first tally.[23]
36. Although this development did not put an end to election-related complaints in Venezuela,[24] the Commission has observed renewed confidence in the election results announced by the National Electoral Council. The public’s confidence in election results lends legitimacy to the authority that elected officials exercise.
37. However, as the Commission has observed, political participation and political rights are not guaranteed simply by the observance of the right to vote or the possibility of exercising the right to vote or to stand for election;[25] instead, they necessarily involve a series of other rights and guarantees to ensure that the democratic process is fully functional. Thus, certain conditions must be present if elections are to be fair and equitable.
38. The information that the Commission has received during its hearings[26] suggests that the most recent elections in Venezuela were not fair and balanced processes, inasmuch as the machinery of the State has been used improperly to favor electoral campaigns. Particularly, in the case of the elections held on November 23, 2008 and on February 15, 2009, the information the Commission received alleges lack of electoral oversight on the part of the National Electoral Council, not in terms of the tabulation of the vote, but of the electoral process itself.
39. The Commission was told that the President of the Republic had used presidential power to create radio and television broadcasts to promote candidates who supported him and also to push for the government option in the referendum process. The National Electoral Council never raised any objection. The Commission also learned that during the campaigns, both the President and other public officials launched verbal attacks that were transmitted during blanket radio and television broadcasts.
40. In its observations on the present report, the State declared that this is “highly subjective, and is a way in which opposition candidates justify their electoral defeats.”[27] It also emphasized that “some Venezuelan NGOs and opposition parties have stated that the use of informative blanket broadcasts on radio and television by the national government is something illegal, but we have demonstrated that it is a constitutional obligation of the State, according to Articles 57 and 58 of the Constitution, to keep the citizens informed; the Law on Social Responsibility in Radio and Television also establishes this.” [28] With respect to the verbal attacks, it clarified that “these come from the opposition parties, and the government responds to them, forming part of the electoral debate in democratic countries.” [29]
41. The Commission also received information regarding alleged restrictions placed on opposition campaign advertising. The information received indicates that in November 2007, prior to the referendum to approve the constitutional amendment, the National Electoral Council ordered SINERGIA, a national association of civil society organizations, to immediately suspend the distribution of audiovisual materials intended to inform the public about the proposed constitutional amendment. It also launched an administrative inquiry into the matter.[30]
42. The Commission has also received reports to the effect that public officials are allegedly subjected to undue pressure when the time comes to vote. One of the most notable examples of this kind of pressure occurred in the period leading up to the 2006 presidential elections when a speech delivered by the Minister of Energy and President of Petróleos de Venezuela, S.A. (PDVSA) was made public, in which he warned employees that if they failed to vote for President Chávez they should leave the company.
43. The Minister said the following:
The new PDVSA is with President Chávez […] the new PDVSA is red from the top down […] Stop thinking that we can be punished or that someone can criticize us if we tell our people that this company is 100% behind President Chávez […] It would be a crime, a counterrevolutionary act for any manager here to attempt to put a stop to our workers’ political support for President Chávez […] We will do our utmost to support our president. And anyone who’s uncomfortable with this arrangement needs to step aside and make way for a Bolivarian […][31].
44. In its observations to the present report, the State explained that this “has its explanation, if one thinks of the sabotage of the oil industry carried out by the opposition parties in December of 2002, which caused the country fifteen billion dollars in economic damages.” [32]
45. The Commission is troubled by the fact that State employees are threatened with losing their jobs if they fail to support the official government option. The Commission has also received information to the effect that civil servants have also been the protagonists of official campaigns, openly participating in political proselytism and devoting long hours of their official workdays to these activities.
46. In light of the foregoing, the Commission notes that there are serious obstacles to the full exercise of political rights in Venezuela, although it values the State’s efforts to foment and guarantee these rights through various mechanisms of political participation. In particular, the Commission observes that equal access to the communications media by the various political forces is not guaranteed. In the framework of political campaigns, the excessive use of State media, as well as the use by the State of private media through “blanket broadcasts,” causes a disequilibrium among the various candidates or political options, which necessarily affects the enjoyment of political rights.
47.
In this sense, with the aim of guaranteeing
the right to elect and be elected in conditions of equality, the
Commission urges the State to regulate the use of state media in the
framework of electoral campaigns in order to ensure equity; to guarantee
that opposition political campaigns can be carried out without undue
restrictions; and to refrain from exerting illegitimate pressures on
public functionaries at voting time and from promoting their mandatory
participation in acts of official propaganda.
B. The right to access, under general conditions of equality, the service of one’s country
48. The Commission has received allegations stating that mechanisms have been created in Venezuela to limit the chances that opposition candidates have to win office. Specifically, in the most recent regional elections held in Venezuela in November 2008, the Commission received reports, through both its hearings and in the individual cases presented to it,[33] indicating that around 400 persons had their political rights restricted through administrative resolutions taken by the Office of the Comptroller General of the Republic based on Article 105 of the Organic Law of the Office of the Comptroller General of the Republic and the National Fiscal Oversight System.[34] The information reported was that the Comptroller of the Republic had decided to disqualify these persons from running for public office on the grounds that they had engaged in irregularities in the exercise of their public functions. The information received by the Commission shows that a great majority of the disqualified persons belonged to the political opposition.
49. Here the Commission notes that on February 25, 2008, the Comptroller General of the Republic sent the National Electoral Council a list of 398 persons who had been sanctioned by declaring them ineligible for public service, which meant that the persons on that list would be unable to run as candidates in the elections slated for November 2008.
50. According to information received by the IACHR, when the Comptroller General turned over the list, he received the backing of the Venezuelan United Socialist Party, through its spokesperson William Lara, as well as the support of the Ombudsperson Gabriela Ramírez, various justices on the Supreme Court of Justice, members of the National Assembly, and four of the five directors of the National Electoral Council.
51. With respect to the latter, it should be taken into account that it is the National Electoral Council that decides whether to agree to the disqualifications. However, according to press clippings sent to the Commission, before a final decision was made on the disqualifications, a number of the directors on the National Electoral Council expressed their opinions as to what the Council’s Board of Directors should decide. Its chair, for example, stated the following publicly: “We have these people who were disqualified by the Office of the Comptroller, and the Council has to follow the strict letter of the law.” Another director on the board of the National Electoral Council stated publicly that “the decision is binding upon the CNE [National Electoral Council, by its Spanish acronym]” and that “persons who have been politically disqualified cannot stand for election to public office” and finally that “once the CNE implements that decision, the names of those declared ineligible for office will be entered into a database so that they will not be able to stand for election. If the Council fails to abide by the decision, then CGR [Office of the Comptroller General of the Republic, by its Spanish acronym] would serve no purpose.”
52. On June 18, 2008, the Board of the National Electoral Council ordered the incorporation, as grounds for ineligibility, in the table of objections of the Electoral Registry, of the category of those disqualified from public service, and all the persons disqualified by the Comptroller General of the Republic were incorporated into this category in the system. Being thus classified, the persons whose names appeared on the list were automatically rejected by the electoral body’s nomination system when they tried to file as candidates for elected office. According to the information received, the decision was announced in the media without being formalized in an administrative act, which made it difficult to challenge.
53. Then, on July 11, 2008, the Comptroller General of the Republic went to the National Electoral Council to deliver a purged and final list of those persons who, as an added penalty, had been declared ineligible for public office because of the seriousness of the offenses they had committed. Of the original list of 398, the Comptroller General decided that 260 citizens were unfit to serve in any public function for the duration of the period of their disqualification[35].
54. On July 21, 2008, the National Electoral Council approved the Rules to Govern the Nomination of Persons for the elections to be held in November 2008. Article 9 of those rules provides that any citizen who has been politically disqualified may not run for public office.
55. The Commission appreciates the Venezuelan State’s efforts to establish control mechanisms to ensure good administration and the legality of the acts of civil servants when using public funds, for the sake of ensuring that democracy functions properly. Indeed, all states have a duty to organize their legal and administrative apparatus to ensure that when the time comes to exercise their political rights, citizens are able to know how their representatives have conducted themselves and thus make an informed choice.
56. However, the Commission observes that Article 23 of the American Convention recognizes and protects political participation both through the right to vote and the right to be elected, with the latter understood as the right to run for popularly-elected office, and through the establishment of adequate electoral regulations that consider the political process and the conditions in which this process is developed, in order to ensure the effective exercise of these rights without arbitrary or discriminatory exclusions. Thus, as political rights are fundamental rights of the human person,[36] they may only be subject to the limits expressly set forth in Article 23(2) of the Convention.
57. Article 23(2) of the American Convention provides that the law may regulate or limit the exercise of political rights “only on the basis of […] sentencing by a competent court in criminal proceedings.” As the Court has written, subparagraph 2 of Article 23 has only one purpose—in light of the Convention as a whole and of its essential principles—to avoid the possibility of discrimination against individuals in the exercise of their political rights.”[37]
58. However, the political disqualifications in Venezuela were not the result of a sentence by a criminal court; instead, they were the result of an administrative decision taken by the Office of the Comptroller General of the Republic. It goes without saying that neither the Comptroller General nor the offices under him are judges or courts in the strict sense, and their decisions fall within the administrative sphere.
59. The information that the Commission received underscores the fact that the sanctions ordered by the Office of the Comptroller General that disqualified individuals from running for public office were imposed without a prior proceeding, and were thus in violation of the basic right to due process of law recognized in Article 8 of the Convention, a guarantee that judicial and administrative proceedings must ensure.[38] In effect, Venezuelan law provides that “it will be the exclusive responsibility of the Comptroller General of the Republic, and only of the Comptroller General, without any other proceeding required, […] to suspend the responsible individual from his position […] or to remove that individual from office […] and […] to bar the individual from occupying any public office or position […].”[39]
60. Under Article 105 of the Organic Law of the Office of the Comptroller General, the Comptroller General is authorized to order an accessory penalty involving disqualification from public office or government service. The Comptroller may do so without any additional proceeding or on any grounds other than those he gave when issuing the finding of administrative responsibility. Thus, the accessory penalty of disqualification for public office is left to the discretion of the Comptroller, based on his or her estimation of the amount of damage done to the public coffers, the type of offence, and the seriousness of that offense. There are no criteria for matching the penalty to the seriousness of the offense, which is a violation of the principle of proportionality.
61. This is contrary to the case law of the Inter-American Court, which holds that decisions adopted by domestic bodies that could affect human rights must be duly justified because, if not, they would be arbitrary decisions.[40] The Commission is also disturbed by the fact that the Comptroller has the discretion to impose a harsh penalty, when the affected parties have not been given the opportunity to defend themselves.
62. Appeals have been filed with the Supreme Court of Justice seeking nullification of Article 105 of the Organic Law of the Office of the Comptroller General on the grounds that it is unconstitutional. Appeals seeking protective relief against that article have also been filed. In general, the complaints argued that Article 105 violated two articles of the Venezuelan Constitution: Article 42, which provides that “exercise of citizenship or of any political rights shall only be suspended by a final judicial decision;” and Article 65, which provides that “Persons who have been convicted of crimes committed while in office or of other offenses against public property shall, after serving their sentence, be ineligible to run for any popularly elected office for the period prescribed by law, which shall depend on the seriousness of the offense.”
63. On August 5, 2008, three months before the regional elections, the Constitutional Chamber of the Supreme Court of Justice dismissed the appeal challenging the constitutionality of Article 105 of the Organic Law of the Office of the Comptroller General.[41] The next day, August 6, 2008, the Constitutional Chamber of the Supreme Court declared the provision of Article 105 of the Organic Law of the Office of the Comptroller General to be constitutional and ruled that it did not have competence to hear the appeals seeking nullification of the administrative decisions issued by the Comptroller General of the Republic. It held that because Article 105 was declared constitutional, the legal argument alleging that those decisions had no basis in law had collapsed.[42]
64. In the judgment of the Constitutional Chamber of the Supreme Court, a distinction must be drawn between two types of disqualification; whereas “criminal conviction […] suspends exercise of political rights, an administrative disqualification ordered by the Comptroller General disqualifies one from holding public office or public service.”[43] In a press release, the Supreme Court of Justice explained that the penalty of disqualification that the Office of the Comptroller General imposes on public officials that it finds guilty of administrative offences “is not a political disenfranchisement but a restriction of the opportunity to hold public office, irrespective of how the individual came to have that office, whether on a competitive basis, by appointment, or by popular election, and irrespective of the type of public office, be it administrative or governmental.”[44]
65. The Commission is of the view that the accessory penalty of disqualification from holding public office, a penalty imposed by the Comptroller General of the Republic, is essentially a judicial function. The accessory penalty was intended as a means to enable the administration to exercise the State’s punitive power, when that authority belongs exclusively to the criminal justice system. The effect of the penalty is punitive in nature, as it disqualifies a person from exercising his or her political right to run for popularly-elected office according to the terms of Article 23(2) of the American Convention. As the Inter-American Court has written, administrative sanctions that are similar in nature to penal sanctions “imply reduction, deprivation or alteration of the rights of individuals, as a consequence of unlawful conduct. Therefore, in a democratic system it is necessary to intensify precautions in order for such measures to be adopted with absolute respect for the basic rights of individuals [...].”[45] Accordingly, given the obligations that Venezuela undertook when it ratified the American Convention on August 9, 1977, the IACHR considers that Article 105 of the Organic Law of the Office of the Comptroller General of the Republic is incompatible with the Convention in that it expressly provides that the administrative avenue is the proper one for imposing a penalty of disqualification from political rights.
66. The Commission is particularly troubled by the reading of the American Convention that appeared in the decision handed down by the Constitutional Chamber of the Supreme Court of Justice on August 5, 2008. That decision makes reference to Article 23(2) of the Convention and states that the article provides that the right to political participation can be regulated. The Constitutional Chamber’s analysis of this article is that regulation of the right to political participation means that political rights can be restricted provided the restrictions are prescribed by law and are based on reasons of general public interest, public safety, and the just demands of the general welfare. The Constitutional Chamber wrote that:
[…] on the subject of political rights, Article 23(2) [of the American Convention] states that the law may “regulate” the exercise of political rights on the basis of age, nationality, residence, language, education, civil or mental capacity, or sentencing by a competent court in criminal proceedings.
This provision makes no reference to any restriction on the exercise of these rights; instead, it speaks of their regulation. In any event, Article 30 ejusdem allows for the possibility of restriction provided it is “in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.”
Furthermore, Article 32(2) provides that “[t]he rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.”
Based on the foregoing, this Chamber deems that under the American Convention on Human Rights, rights and freedoms can be restricted, provided the restriction is done by law and for the sake of the general interest, the security of all, and the just demands of the general welfare.
These provisions, which appear in Articles 30 and 32(2) of the Convention, become especially relevant in cases such as Venezuela’s, where the constitutional system unquestionably favors collective interests over individual or private interests, as it has shifted from the liberal State model to the model of a social State of law and justice.
Assuming arguendo that there was some conflict between Article 23(2) and the Constitution of the Bolivarian Republic of Venezuela, the precedence of the international treaty is neither absolute nor automatic. In effect, under Article 23 of the Constitution, in order for a human rights treaty or convention to take precedence, its human rights provisions must be more favorable than those in the Constitution.
[…]
Based on these considerations and the jurisprudence cited, this Chamber concludes that human rights can be restricted by laws enacted for the sake of the general interest, the security of all, and the just demands of the general welfare, all in accordance with Articles 30 and 32(2) of the American Convention on Human Rights.
[…]
[It] is inadmissible to assert that a provision of an international convention should take absolute precedence over the prevention, investigation, and punishment of acts that violate public ethics and administrative morals (Article 271 of the Constitution), and the attributions that the Constitution expressly confers upon the Office of the Comptroller General of the Republic to monitor and audit public revenues, expenditures, and property (Article 289(1) ejusdem), and to inspect and audit public-sector organs, order investigations into irregularities committed against public holdings, and order repayments and enforce any administrative sanctions that may be required under the law (Article 289(3) ejusdem). Thus, the provisions of the Constitution that favor the general interest and the common good must prevail; the provisions that favor the collective interests involved in the struggle against corruption must take precedence over the private interests of those involved in administrative offences; it is so decided.
67. The IACHR reiterates that the only admissible restrictions to regulate the exercise and enjoyment of political rights are those expressly established in Article 23(2) of the American Convention. The States shall refrain from issuing laws that establish restrictions beyond those authorized in that article. As such, restrictions on political rights that are not authorized under Article 23(2) are inadmissible even when, in the judgment of the domestic courts, those restrictions serve the general interest, the security of all, and the just demands of the common good.
68. In its own interpretation of Convention Article 30 referenced in the ruling of the Constitutional Chamber, the Inter-American Court has written that only those restrictions expressly allowed under the Convention are authorized. Thus,
[i]n reading Article 30 in conjunction with other articles in which the Convention authorizes the application of limitations or restrictions to specific rights or freedoms, it is evident that the following conditions must be concurrently met if such limitations or restrictions are to be implemented: that the restriction in question be expressly authorized by the Convention and meet the special conditions for such authorization […].[46]
69. The Court has also understood that Article 32.2
is [not] automatically and equally applicable to all the rights which the Convention protects, including especially those rights in which the restrictions or limitations that may be legitimately imposed on the exercise of a certain right are specified in the provision itself. [The Court adds that] Article 32(2) contains a general statement that is designed for those cases in particular in which the Convention, in proclaiming a right, makes no special reference to possible legitimate restrictions.[47]
70. As to the power to pass laws on the requirements necessary to exercise political rights, the Inter-American Court has held that instituting and applying requirements for exercising political rights is not, per se, an undue restriction of political rights.[48] However, the power of the states to regulate or restrict rights is not discretional, but is limited by international law, which requires compliance with certain obligations that, if they are not respected, make the restriction unlawful and contrary to the American Convention.[49]
71. Based on the foregoing, the Commission considers that a penalty of disqualification from public office or public service, being imposed through administrative procedures in contravention of the standards of due process, constitutes an undue restriction of the political right to run for public office, protected under Article 23 of the American Convention on Human Rights. The Commission observes with concern that these undue restrictions have been used to deny 260 individuals their opportunity to run for public office in the lead-up to the regional elections held in Venezuela on November 28, 2008 and recommends that the State adopt the necessary corrective measures to reverse this situation.
72. On December 14, 2009, the Inter-American Commission submitted an application against Venezuela to the Inter-American Court in the case of Leopoldo López Mendoza, due to the disqualification of Mr. López Mendoza from public service in violation of the standards established by the Convention, and the prohibition of his candidacy in the regional elections in 2008. The case also relates to the lack of judicial guarantees and appropriate judicial protection and adequate reparations. On August 8, 2009, the Commission adopted Merits Report No. 92/09 and recommended that the State: (1) adopt the measures necessary to reestablish the political rights of Mr. Leopoldo López Mendoza; (2) bring the domestic legal order, in particular Article 105 of the Organic Law on the Office of the Comptroller General and the National System of Fiscal Control that imposes disqualification from running for public office, into compliance with the provisions of Article 23 of the American Convention; and (3) strengthen the due process guarantees in the administrative proceedings of the Office of the Comptroller General of the Republic in accordance with the standards of Article 8 of the American Convention. In its observations on the Merits Report, the State asserted that “the Commission erroneously concluded that the State of Venezuela had incurred international responsibility.” As a result of the lack of compliance with the recommendations of the Commission, the Commission decided to submit the case to the Court, asking it to declare that the State had incurred international responsibility for violation of political rights (Article 23), and the right to judicial guarantees and judicial protection (Articles 8.1 and 25), in conjunction with the obligations of respect and guarantee and the duty to adopt domestic legal provisions established in the American Convention (Articles 1.1 and 2, respectively). The submission of the case to the Court raises the need for justice and reparations in cases of political disqualifications through administrative acts, contrary to the international standards.
73. Taking into account that, according to the information received, this measure might have been directed to politically disqualify candidates that for the greater part opposed the government, the IACHR deems appropriate to remember that the just demands of a pluralistic and democratic society require that political rights be guaranteed not just in the case of those persons advocating positions favorable to the policy line of the government in power or that are considered inoffensive or indifferent, but also with regard to those who maintain a critical stance that is unwelcome to that government or to some other sector of the population.[50]
C. The exercise of political rights without discrimination
1. The modification of the powers of elected authorities
74. The Commission has received information indicating that the State was taking actions to take powers away from authorities elected by popular vote, particularly when they belong to the opposition. Although it is not for the Commission to decide, in the abstract, the distribution of powers among the regional organisms in the interior of a state, the Commission will analyze this information in relation to the allegations that the modification of powers is being carried out in Venezuela with the aim of reducing the scope of the public functions of members of the opposition.[51]
75. By way of example, the Commission has been told of the situation of the Mayor of Metropolitan Caracas, whose main function is to coordinate the city’s five municipalities[52] so that they function harmoniously. The Commission was told that since the Caracas Metropolitan District was created back in January 2000 and the Law on the Special Regime of the Caracas Capital District was issued, all the metropolitan mayors had belonged to the government party. However, in the elections held on November 23, 2008, members of the opposition were elected to govern four of the five municipalities in the Metropolitan Caracas area. Antonio Ledezma was elected Metropolitan Mayor, the first person elected to that office who was not the government-backed candidate.
76. Once the Metropolitan Mayor took office, having been elected to exercise the authorities given under the Law on the Special Regime of the Caracas Capital District which the National Constituent Assembly enacted in 2000, the Special Law on the Organization and Regime of the Capital District[53] was issued on April 13, 2009. The new law created the Office of Head of Government of the Capital District.[54] Under the new law, important powers, buildings, and resources were removed from under the Mayor’s control and transferred to the new Office of the Head of Government of the Capital District.[55] The Head of Government is not elected by the people; instead, the President of the Republic has the authority to appoint the Head of Government to perform executive government functions in a territorial political unit of the Republic, and can remove that Head of Government at will. On April 14, 2009, through Decree No. 6.666,[56] the President of the Republic named Jaqueline Faría as the Capital District’s Head of Government.
77. According to the information the Commission has received, the new Capital District Law directly affects the authorities of the Metropolitan Mayor of Caracas, by naming, by free designation of the President of the Republic, a higher authority like the Head of Government of Caracas, upon whom the Metropolitan Mayor must depend. The Metropolitan Mayor has been stripped of virtually all his authorities, such as administration of the public coffers, preparation and execution of development plans, and supervision of the decentralized government entities of the capital district.
78. The Special Law on the Transfer of Resources and Properties Temporarily Administered by the Caracas Metropolitan District to the Capital District was issued on May 4, 2009.[57] This law created the machinery for transferring the properties and financial assets of the Office of the Metropolitan Mayor to the Office of the Head of Government of the Capital District. Its Article 2:
declares the organic and administrative transfer and the dependencies, entities, autonomous services, other forms of functional administration, and the resources and property of the Metropolitan District of Caracas are assigned to the Capital District […]. All of the resources and goods acquired by reason of the provisional and transitory execution of these powers by the Metropolitan District of Caracas will be transferred to the Capital District, except for those that have been transferred to the National Executive […].
79. Similarly, it has come to the attention of the IACHR that on August 25, 2009 the Law of the Metropolitan Two Tier Municipal System was enacted.[58] Through this law, the Special Law on the System for the Metropolitan District of Caracas (published in the Official Gazette 36906 of March 2000) has been repealed. According to information of the National Assembly, with the publication of this law “the misleading denomination Metropolitan District of Caracas has ceased. Even when it served a transitory purpose it did not satisfy the spirit, purpose, and reason of the above Article 18. The denomination Metropolitan Area has emerged by virtue of its special characteristics.”[59]
80. The two tiers of government referred to in this Law are: the metropolitan level, formed by an executive body and a legislative body, whose jurisdiction comprises the entire metropolitan district; and the municipal level, formed by an executive body and a legislative body of each participating municipality of the metropolitan area, with municipal jurisdiction. With respect to the control of the Metropolitan Area Government, it is provided that the Metropolitan Mayor must submit accounts to the legislative organ and his investment budget must be approved by the Metropolitan Legislative Commission, replacing the Metropolitan Council, which shall be composed of the presidents of the respective legislative councils.
81. It is provided that the metropolitan level should not have executive competence; rather, its powers are those of planning and coordination. The Metropolitan Mayor shall have the following powers: to present to the metropolitan council the plans for budgetary income and expenditures, to administer the Metropolitan Public Revenue, to publish bylaws, to undertake the representation of the metropolitan area, to lay down the decrees provided for in the legal system and the regulations which amplify the bylaws, and to enter into contracts and agreements for the supply of public services with the municipalities in the metropolitan area.
82. With respect to the Special Law on the Organization and Management of the Capital District, in its observations on the present report the State indicated that this legislation was motivated by strategic reasons of governability. It stated that this law made it possible to comply with a constitutional mandate according to which the Metropolitan District of the City of Caracas is a municipal administrative entity, and cannot be confused with an autonomous federal territory. It clarified that the Capital District was not eliminated by the creation of the Metropolitan District and that the organization of this autonomous federal entity would overcome the absence of the definition of the powers among the various levels of government that until now have confused their conduct with other entities of the municipal government.[60]
83. With reference to the Special Law on the Transfer of Resources and Properties Temporarily Administered by the Caracas Metropolitan District to the Capital District, the State reported, in its observations to the present report, that this law completes the transition of the Federal District to the Metropolitan District of Caracas, in a manner that defines the proceedings for the transfer of all the administrative, fiscal, and governmental functions temporarily held by the Metropolitan District of Caracas to the Capital District. The State emphasizes that the special transitory powers of the Metropolitan District of Caracas were only granted for a period of one year, and that the Special Law on the Organization and Management of the Capital District was created eight years ago. [61]
84. In its observations to the present report the State also referred to the Law of the Metropolitan Two Tier Municipal System. It stated that this law is intended to develop the constitutional precept of elaborating a law that would allow for the integration of a Metropolitan Area in the Bolivarian municipality of Libertador of the Capital District and the municipalities of Baruta, Chacao, El Hatillo, and Sucre, preserving the territorial integrity of the Bolivarian state of Miranda. It added that with this instrument “the equivocal denomination of the Metropolitan District of Caracas will end, since it has fulfilled its transitory purpose and does not respond to the spirit, purpose, and reason of the cited Article 18 [of the Constitution], thus giving rise to the denomination of Metropolitan Area by virtue of its special characteristics, through which it is established that the metropolitan governmental regime is a municipal entity for coordination of the administration of public policies related to the powers assigned to it under this law.” [62]
85. The Commission was also told that the governors of Miranda and the Metropolitan Mayor would no longer have authority over hospitals and clinics within their jurisdictions. It was also reported that rulings of the Supreme Court of Justice had foreclosed the possibility of establishing plans to regulate vehicular traffic, such as the “pico y placa” system. Additionally, the Metropolitan Mayor was allegedly impeded from administering five buildings assigned to the Office of the Metropolitan Mayor, while the governor of Táchira was prevented from taking office for almost two months.
86. To protest everything that had happened, the Mayor of Metropolitan Caracas went on a hunger strike from July 3 to 8, 2009. One of the purposes of the hunger strike was to demand that the Ministry of Finance and the Head of Government of the Capital District comply with the obligation to transfer the funds needed to pay the wages and salaries of the employees of the Office of the Metropolitan Mayor.
87. The governors of the states of Miranda, Zulia, Nueva Esparta, Carabobo, and Táchira find themselves in a similar predicament. They told the Commission that shortly after taking office, the “organs of the National Government began to carry out a state policy of arbitrarily stripping them of their authorities through measures and actions that ignored the will of the people.”[63]
88. In December 2008, the newly-elected regional officials began their terms of office. On March 17, 2009, a partial amendment of the Organic Law on Decentralization, Delimitation and Transfer of Government Powers was enacted.[64] Under the amendment, powers that had once been vested in governors were transferred to the President of the Republic. These included upkeep, administration, and use of national roads and highways, as well as ports and airports used for commercial transportation and shipping.[65] This was despite the fact that Article 164 of the Venezuelan Constitution, which spells out the functions and powers of the states, specifies that these powers are in the exclusive purview of the states.[66] It also failed to take into account that the administration of highways, ports, and airports was a major source of the states’ revenues.
89. Between March and April of 2009, a military occupation of numerous ports and airports took place, mainly in regions whose governors are members of the opposition. The assets making up the infrastructure for preserving, administering, and using the national highways and roads, bridges, tunnels, farm roads, and toll booths reverted to the president.
90. The information the Commission received indicates that with the amendments to the Organic Law on Decentralization and the Organic Law on the Public Administration, among others, regional authorities of the opposition have been stripped of their substantive powers, and those that they were elected to discharge have been abridged. The IACHR was also told that the objective of this measure is to economically choke off politically adversaries and to reduce their revenue stream. Both the governors and the Metropolitan Mayor told the Commission that they are being denied the means to legitimately perform the functions and duties of their offices.
91. In its observations on the present report, the State indicated that the modifications to the various legal instruments referring to the powers and the scope of the responsibility of the Metropolitan District and its mayor is a situation that had to occur after the elections of 2008, regardless of who was elected. [67] It emphasized that the modifications of the responsibilities were not carried out as a means of neutralizing the powers of opposition authorities because the same responsibilities apply to the governors and mayors belonging to the government’s party; therefore, it cannot be alleged that these are measures that violate the principle of equality and non-discrimination.[68]
92. The right to vote means that citizens are able to decide for themselves and freely elect, under general conditions of equality, those who will represent them in taking decisions on public affairs; political participation by exercising the right to be elected means that citizens can nominate themselves as candidates under conditions of equality, and that they can occupy and exercise elective office if they are able to win the necessary number of votes.[69]
93. In light of the foregoing, if the modifications of powers are carried out with the aim of neutralizing the powers of authorities from the opposition, this modification could constitute a restriction of the exercise of political rights. Accordingly, the Commission urges the State to create adequate conditions and mechanisms to ensure that these political rights can be exercised effectively, while respecting the principles of equality and non-discrimination[70] and recommends that it adopt the measures necessary to guarantee due respect for the powers of political adversaries who have been elected and invested with the people’s mandate.
2. Reprisals for political dissent
94. The State highlights that the climate in Venezuela is one of political tolerance. According to the State, the political-social tensions created by the polarization have eased considerably with the ratification of President Chávez in the referendum held on August 15, 2004 and the elections that have been held in Venezuela.[71] As an illustration of political tolerance in Venezuela, the State observes the following: “Not content to rest on the laurels of his seven years of political tolerance, in December 2007 the lawful President, Hugo Chávez Frías, issued a decree[72] in which he pardoned all those charged with supporting the failed coup attempt.”[73]
95. Nevertheless, the information by the IACHR continues to show a troubling tendency towards retaliatory actions against persons who make public their disagreement with government policies. This tendency affects both the opposition authorities and the citizens who have exercised their right to express their disagreement with the policies put forth by the government. On some occasions, the reprisals are carried out through state acts, and on others the persecution comes from civil groups that operate at the margin of the law. According to information provided to the Commission, it has gone to the extreme of initiating criminal proceedings against members of the opposition, accusing them of common crimes with the aim of depriving them of their liberty because of their political position.
96. For example, the Commission continues to receive reports indicating that the “Tascón list” is still being used to deny certain persons access to basic services and social welfare programs and to dismiss them or not employ them in private businesses and State agencies.[74]
97. The “Tascón list” came to light when Deputy Luís Tascón, with the Movimiento Quinta República, published on the Web a list of persons who, making use of a constitutional power, filed the petition seeking a referendum to recall President Hugo Chávez Frías in 2004. Publication of this list initially triggered the dismissal of many civil servants, who were fired without receiving their employment benefits.
98. Later, the “Tascón list” became a tool of political discrimination, used to decide the citizen’s relationship to the State in all spheres, and determined whether he or she would participate in economic affairs or in the job market and have access to services. The “Tascón list” was used in different ways in order to deny certain citizens their fundamental rights for having expressed their political preference.
99. The Commission recognizes the fact that on April 15, 2005, the President of the Republic acknowledged that the list was used for political discrimination, to dismiss employees, or block applications for employment, among other things, and he called upon the regional authorities and their supporters to do away with and bury the so-called “Tascón list.”[75]
100. However, the Commission notes that the President’s call did not come until one year later. It also notes that despite what President Chávez had asked, the list is still being used at the public and private level, as a tool to discriminate against hundreds of persons on political grounds.[76]
101. More disturbing still are the reports that an even more sophisticated tool was created during the 2005 legislative elections, known as the “Maisanta list,” which includes not just the names of the persons who signed the presidential recall referendum petition, but also detailed information on the more than 12 million registered voters and their political preferences. The Commission not only views with concern the way in which this list could be used to discriminate against certain persons based on their political opinions, but also considers that its creation affects the guarantee of vote by secret ballot contained in Article 23 of the American Convention on Human Rights.
102. As was stated previously, the Commission has received allegations that the opening of criminal proceedings is being used to intimidate political opponents. As an example of this, the IACHR learned of the case of Manuel Rosales, former governor of the western state of Zulia, who was President Chávez’s main rival in the 2006 elections and who went on to become mayor of Maracaibo. According to public reports, in 2008, Manuel Rosales became the subject of an investigation into alleged acts of corruption while in the governor’s seat. The allegations included the charge that Rosales had embezzled several million dollars to acquire farmland and properties in his native region and in Miami. Rosales was charged on December 11, 2008, based on a July 19, 2007 report by the Office of the Comptroller General, which investigated his sworn statements of net worth since 2004 and found funds that he allegedly could not account for.
103. While the Commission recognizes the State’s efforts to combat acts of corruption, it observes that the opening of a case against Manuel Rosales could be linked to pressures from the executive branch. According to reports in the press, just weeks before the regional elections, on October 20, 2008, the President of the Republic had said that he was “determined to put Manuel Rosales behind bars. Persons of that ilk ought to be in prison, not governing a state. He ought not to be on the loose.”[77] Manuel Rosales, for his part, alleged that the central government had contrived a scandal as a means to oust him from the political scene in Venezuela. Manuel Rosales fled to Peru, where he was granted political asylum in April 2009.
104. The case of Francisco Usón Ramírez, who held various public offices[78], including Minister of Finance, is also illustrative.[79] Mr. Usón Ramírez is a person who is critical of the State’s performance, who expressed both in his capacity as an active member of the military and as a retired military member the disagreements he had with the exercise of the public administration by the government and the performance of the armed forces. Mr. Usón presented his resignation as Minister of Finance on April 11, 2002 because of his disagreements with the President and with members of the high military command.
105. As a result of certain declarations made by Mr. Usón during a television interview about facts that were the subject of controversy and public debate at that time, criminal proceedings were initiated against him in the military jurisdiction for the crime of insult to the National Armed Forces. On May 22, 2004, Mr. Usón Ramírez was deprived of his liberty and, almost six months after this order was issued, on November 8, 2004, the First Tribunal of Judgment of Caracas (Tribunal Primero de Juicio de Caracas) sentenced him to a prison term of 5 years and 6 months, along with the accessory penalties of political disqualification for the duration of the sentence and loss of the right to reward. Mr. Usón Ramírez was deprived of his liberty during the entire military criminal proceedings and remained imprisoned for three years and seven months, until he was granted conditional liberty.
106. On July 28, 2008, the Inter-American Commission submitted an application to the Inter-American Court of Human Rights in the case of Francisco Usón Ramírez, against Venezuela, alleging its international responsibility in relation to the rights to freedom of thought and expression, personal liberty, and judicial guarantees and protection. In the framework of a public hearing before the Inter-American Court in the city of Santo Domingo, Dominican Republic, on April 1, 2009, the representative of the State declared that:
it is not possible to accept that the Commission presents the expressions and political analysis of General Usón as a democratic and innocuous exposition, when in reality it is subversive discourse with value judgments that constitute insult or offense to, or contempt for, the National Armed Forces […]. Pardon what could be seen at a glance as intemperance, but the Inter-American Commission is once again trying to hide the seriousness and the delicacy of subversive actions by the Venezuelan opposition for the National Security of Venezuela since president Chávez came to power in 1999. […] The Commission does not evaluate the declarations of General Usón in context, which goes beyond the spirit and purpose of what can or cannot be crimes of disrespect (desacato). The Commission does not consider these facts, and wants to keep the Court from considering them as well. It is necessary, citizen Judges, to find out how these facts occurred, how and where they were expressed, in what historical moment they were produced, to what end and to whom were the expressions of General Francisco Usón and the discourse of the moderator of the program directed.[80]
107. It is clear that Mr. Usón was prosecuted for his expressions and the State considers that these expressions must necessarily be analyzed in the political context in which they were made. According to the State, in this context Mr. Usón is a member of the opposition to the current government. In the judgment of the Commission, the State’s position confirms that ambiguous norms and standards were used with the objective of detaining and prosecuting Mr. Usón for his political opposition.
108. On November 20, 2009, the Inter-American Court issued its judgment in the case of Usón Ramírez v. Venezuela, and declared that the State violated, with prejudice to Mr. Usón: the principle of legality and the right to freedom of thought and expression; the right to judicial guarantees and the right to judicial protection; and the right to personal liberty. These rights are recognized in Articles 9 and 13, 8 and 25, and 7 of the American Convention, respectively, all in relation to Articles 1.1 and 2 of the Convention. Additionally, it decided that the State had not complied with its duty to adopt domestic legal dispositions, as stipulated in Article 2 of the American Convention, in relation to its Articles 9, 13.1, 13.2, and 8.1.[81] In its observations on the present report, the State indicated that “in reference to the case of the coup-seeking General Francisco Usón Ramírez, […] we must only say that the Inter-American Court lost the small amount of credibility it had in the State of Venezuela when it agreed with General Usón for political, rather than legal, reasons.[82]
109. The Commission has received complaints by persons who assert that they have been subjected to criminal proceedings because of their political opinions. Additionally, the IACHR has received information from various organizations that present lists of persons who, they allege, are or have been under arrest because their ideas supposedly threaten the established political system. Various organizations coincide in affirming that political reasons have determined the initiation of criminal proceedings against certain persons and that they were detained under very deficient conditions, without access to the same rights as other persons deprived of their liberty and without the guarantees to ensure due process in their trials. Included among persons considered by different organizations to be political prisoners are journalists, persons detained in the context of social demonstrations, persons allegedly linked to the events of April 2002, representatives of political parties, business leaders, and dissidents in general[83].
110. During the hearing on the situation of human rights in Venezuela, the State indicated that the list of supposed political prisoners was made up of “Venezuelans, some of whom are accused of acts of corruption, others of acts of terrorism, as well as repressive police chiefs, all of them prosecuted by competent tribunals. None of the persons mentioned is being prosecuted or imprisoned by order of President Chávez, as occurred during the times that the Acción Democrática and COPEI parties were governing.”[84]
111. The Commission also observed with concern how, in September, October, and November 2009, students from all over the country went on a hunger strike to demand the release of those considered to be political prisoners, as well as to demand an on-site visit of the IACHR to Venezuela. In particular, the students considered that in the last few years, but especially in the last few months, an escalation in judicial, prosecutorial, and police repression has broken out against those identified as dissidents or opponents for the simple fact of validly exercising their constitutional rights to think differently and to manifest disagreement against any expression or arbitrary act of power and for lawful exercise of their right to free expression of their opinions and ideas. As a consequence, this has resulted in hundreds of citizens being persecuted and subjected to unjust criminal trials; many of them have been deprived of their liberty on no legitimate grounds whatsoever.[85]
112. Finally, it concerns the Commission that expressions of political intolerance by the public authorities have sometimes been echoed among civil groups, some of which take them to the extreme and act at the margin of the law as violent groups to intimidate those who are considered enemies of the government’s political program. As an example of the foregoing, the Commission has learned that the Metropolitan Mayor of Caracas was not only stripped of virtually all his authority, but is also the target of an aggressive campaign of harassment, threats, insults, and intimidation. The Commission also received allegations that indicated the existence of a series of attacks on staff of the Metropolitan Mayor’s Office and violent take-overs of installations of the Metropolitan Mayor’s Office carried out by violent groups.[86]
113. Among other things, the Commission was informed that staff members of the Secretariat for Citizen Security of the Office of the Metropolitan Mayor of Caracas were violently attacked and forced from the premises on December 22, 2008, by violent groups calling themselves the Mancomunidad (a multi-community structure) of Western Caracas Social Organizations, Codes La India, and the Asociación Nacional de Motorizados Bolivarianos Socialista de Venezuela (National Association of Socialist Bolivarian Motorbike Taxis of Venezuela). According with the information received, on December 18, 2008 the Director of Citizen Security was notified of the decision to force them from the premises through a statement in which these groups justified their action by citing the need to lend “continuity to the transformation toward socialism now underway in the Bolivarian Republic of Venezuela and thereby strengthen all the effort being made by our supreme leader, President and Commander-in-Chief Hugo Rafael Chávez Frías.”[87] These groups allegedly forced the staff to leave, and took possession of the documents and furnishings of that office. According to reports received, the assistance of a prosecutor had been requested to prevent the take-over of the Secretariat, but the request went unanswered. The State reported to the IACHR that it lacks any information regarding any acts of violence that occurred on the premises of the Secretariat for Citizen Security of the Office of the Metropolitan Mayor of Caracas.[88]
114. The Commission was also informed that on January 17, 2009, a group of armed persons who identified themselves as supporters of the President of the Republic allegedly invaded the government house of the Office of the Metropolitan Mayor of Caracas, causing damage and removing documents from the Office of the Director for Citizen Services. It was also reported that on January 23, 2009, certain facilities of the Office of the Metropolitan Mayor came under armed attack and were taken over by the violent groups “La Piedrita” Collective and the “Tupamaro.” The State reported that the Office of the Attorney General had launched an investigation into these events.[89]
115. According to the information received, on February 5, 2009 a group of employees from the Ministry of Popular Power for Culture, the Ministry of Popular Power for Housing and Habitat, and the government-run media Vive TV and Ávila TV had invaded the office of the staff of city hall and the security corps of the Office of the Metropolitan Mayor of Caracas, using violence to force staff to leave their workplace. The information the Commission received makes reference to the violent takeover of the headquarters of the Guardianes Metropolitanos (peace officers) on June 11, 2009, at around 11:00 p.m. Information compiled by the Commission indicates that the property remains in the possession of groups allied to the national government.
116. Then, on June 17, 2009, groups dressed in red and identified as supporters of the government allegedly attempted to seize the headquarters of the Foundation for the Care of the Disabled. A number of employees of the Office of the Metropolitan Mayor and of the Capital District were injured in the fray. The Commission was told that all these events had been duly reported to the Office of the Attorney General, but no response has yet been received. The IACHR is therefore calling for an effective investigation into the acts of violence denounced and for punishment of the guilty parties. It is also urging that all measures necessary to avoid a recurrence of incidents like this be taken.
117. The Commission views with the utmost concern the ways in which, through the application of the law or at its margin, retaliatory measures have been taken to punish, intimidate, and attack those who have expressed their disagreement with the government and urges the State to respect the participation of all sectors in the political life of Venezuela as well as to guarantee the human rights of those who identify with the opposition to the government.
D. The right to peaceful protest
118. The IACHR has emphasized that political and social participation in public demonstrations is essential in the democratic life of societies. The exchange of ideas and social demands as a form of expression presupposes the exercise of interrelated rights, such as the right of citizens to gather and demonstrate, and the right to the unimpeded flow of opinions and information. In this sense, participation in demonstrations, as an exercise of freedom of expression and the right to assembly, has an imperative social interest and forms part of the well-ordered functioning of the democratic system inclusive of all sections of society. Thus, the State must not only refrain from interference with the exercise of the right to peaceful demonstration, but should adopt measures to ensure its effective exercise.[90]
119. One of the aspects of major concern to the IACHR with respect to Venezuela is the situation of the right to peaceful demonstration, and particularly the excessive use of force in the context of demonstrations and the invocation of criminal offences to detain persons in the context of demonstrations against official policies.
120. In this sense, the Commission notes that in the exercise of the right to peaceful demonstration, violations of the right to life and personal integrity often occur as a result of the excessive use of state force, as well as due to the actions of violent groups. Also, the Commission observes with concern how, in Venezuela, the official response to peaceful demonstrations has been characterized by the criminalization of social protest through the criminal prosecution of the persons involved, thereby distorting the application of the criminal laws of the State. This situation leads to a particular concern, since repression and sentences of detention for those participating in protests has the effect of dissuading social actors from participating in peaceful demonstrations.
121. The Commission has received information indicating the existence of “a State policy oriented at repressing social protest in Venezuela through various means.” The information received by the Commission refers to an increase in the number of demonstrations suppressed, in the number of criminal proceedings initiated against persons for exercising their right to peaceful protest, and in the number of fatalities from violence in the context of demonstrations, both at the hands of the state security forces and of violent groups like the Colectivo La Piedrita, Alexis Vive, and Lina Ron and her followers.[91]
122. On the other hand, the State declared that in Venezuela the right to peaceful protest is guaranteed, but that a demonstration ceases to be peaceful “when it impedes the exercise of other rights of citizens.” As examples, the State cited to the Commission the closure of streets or that the protesters are armed or cause damage to public or private property. “In the case of this conflict of interests, and the illegal actions of these groups as well as the violation of constitutional rights by the protesters, the State must act to guarantee peace and security; it is in this framework that the implicated persons are detained and submitted to criminal proceedings in all the states.”[92] The State emphasized to the IACHR that the protests are not the objects of criminal proceedings, but rather the violations that go beyond the limits of the peaceful and the collective.
123. The State also rejected allegations that the repression of peaceful protest is a policy of the State and in that respect declared that never before have there been so many demonstrations and so much political participation in Venezuela. In this regard, the information provided by civil society to the IACHR coincides in highlighting a substantial increase in the number of demonstrations. According to the information received, there were 1,521 demonstrations in the period of 2006-2007, 1,763 in the period of 2007-2008, and 2,893 in the period of 2008-2009. Nevertheless, the information received also shows an increase in the number of demonstrations suppressed.[93]
124. Although the Commission has been unable to obtain officially published figures regarding the number of demonstrators subject to criminal prosecution for facts occurring during demonstrations, the information received points out that in the past five years, around 2,240 people have been subjected to criminal proceedings and some were subjected to a reporting regime after being accused of participation in demonstrations.[94] In declarations to the press, the Executive Director of the Venezuelan Program for Human Rights Education-Action (PROVEA by its Spanish acronym) explained that the campesinos’ movement Jirahara, whose members are Government supporters, reports that there are 1,507 campesinos subject to reporting regimes. For its part, the Attorney General’s Office, in its information newsletters, reports that some 300 students are in the same situation, and that solely in the context of the protests at the closure of Radio Caracas Television (RCTV) in 2007, 120 students were prosecuted. With regard to the trade unions, the government supporter Unete and the Confederation of Venezuelan Workers (CTV, by its Spanish acronym) report that around 150 workers have been prosecuted for demonstrations. To these figures can be added an unknown number of defendants among community leaders prosecuted for demonstrations seeking improvements in their quality of life or public safety. In this sense, he expressed that “the Attorney General’s Office and the control judges (jueces de control) have been turned into instruments of repression of the social struggle.”[95]
125. In the same sense, figures released by union, campesino, and student leaders underline that on July 12, 2009, there were 2,200 persons in Venezuela subject to reporting regimes before the courts for exercising their right to demonstrate. According to this source, a large majority of those subjected to these procedures belong to workers’, campesinos’, students’, and popular community associations. For this reason “a group of social and human rights organizations and student and academic groups, as well as diverse individuals, promote[d] a campaign to defend the right to protest, […] as well as to condemn the initiation of prosecutions, the use of hit men, and other mechanisms to criminalize the exercise of this right, such as judicial orders that prohibit the ability to assemble and to strike in state-owned companies.”[96]
126. A recent report published by the organizations Espacio Público and PROVEA[97] points out that during the whole of 2008, 1,602 public demonstrations took place, while between January and August 2009, the total figure was 2,079 public demonstrations, which is around double the total demonstrations in 2008. The report also emphasizes that between January and August 2009 a total of 130 suppressed demonstrations were recorded resulting in 461 injuries and 440 people arrested. It adds that the most common demands are those related to employment rights as well as those pertaining to the quality of life, such as basic services, water, roads, and security. On the other hand, political demands, which include protests both from the opposition as well as in support of the government, ranks in sixth place among the reasons for demonstrations, notwithstanding the fact that this type of protest receives more publicity and circulation.
127. In accordance with the report cited, only 7% of the 2,079 protests involved violent conduct resulting from clashes involving demonstrators and the State security forces, as well as with other private groups. Thus, in the eight months of the study 139 repressed demonstrations were reported, in sixty of which there were injuries and in 52 there were arrests. It was clear that demonstrations for political demands were those most likely to be suppressed. The organizations that issued the report confirm that the ineffective conduct of the security bodies often causes protests carried out peacefully to turn violent, either because of acts of provocation by the security forces or for not exhausting the chance to employ dialogue to control provocations.
128. In its observations on the present report, the State expressed that “it is logical that if there are more illegal demonstrations, there are bound to be more demonstrations repressed.” It also indicated that it is possible that the number of campesinos subject to presentation regimes has increased “because they have carried out invasions of rural lands.” Additionally, it added that “it is possible that that the number of students subject to presentation regimes has increased, because they have been manipulated by some leaders of some universities and political parties in order to use them in illegal demonstrations without any justification.”[98]
129. Espacio Público and PROVEA emphasize in their report that between January and August 2009, 6 people were killed in public demonstration incidents, four of them due to the behavior of state security bodies[99] and two more for which responsibility could not be attributed directly to State agents.[100]
130. Among those most affected by acts of repression and violence connected with demonstrations are students. The Commission notes that students led various demonstrations during the final months of 2007 against the proposed reform of the Venezuelan Constitution, and these protests resulted in the deaths of, and injuries to, some students. The Commission also took account of students that died during protests in 2008. One example is the case of Douglas Rojas Jiménez, a student at the University of the Andes, in the state of Mérida, who was fatally injured in the head during a demonstration, presumably by a state police officer, on July 10, 2008. Another example is the case of Marvin Cepeda, a sixteen-year-old student who died on November 3, 2008, during a student demonstration in Bolívar state, which was repressed by officials of the state police and the National Guard.
131. In 2009, too, there were various injuries and deaths among Venezuelan students, during events not yet clarified by judicial authorities. In particular, the breaches of the rights to life and personal integrity occurred during the suppression of protests in the first months of 2009, in which students were demanding the reopening of the Permanent Electoral Register in order that around 1,500 new voters could participate in the referendum for constitutional change, as well as in the protests of July, August, and September 2009, linked to the enactment of the new Organic Law on Education.
132. One of the most emblematic cases occurred on April 28, 2009, when Yuban Antonio Ortega Urquiola, president of the Center for Students of the University Technical Institute of Ejido, in the state of Mérida, died during a demonstration in the area around that Institute, in which the student was seriously injured in the head by a firearm. In relation to these facts, in September 2009, criminal proceedings were initiated against three agents of the Merida state police force for the alleged commission of complicit intentional homicide with malice, unwarranted use of a firearm, and breaches of international principles.[101]
133. In relation to cases of death and injury during demonstrations, the Commission reiterated to the State that the use of force is a last resort that should only be used to prevent a situation of more gravity than that which prompted the State’s reaction. Thus, the legitimate use of public force requires, inter alia, that this is both necessary and proportionate to the situation, in other words, that it should be used with moderation and in proportion to the legitimate ends pursued, as well as attempting to reduce to a minimum personal injury and loss of human life. Therefore, in order to be considered acceptable according to international parameters, the level of force used by State agents should not greater than that which is absolutely necessary.[102]
134. With particular reference to the use of force during demonstrations, the Commission points out that it is possible to impose reasonable limits on demonstrators to preserve the peace as well as to disperse demonstrations that are turning violent. Nevertheless, the action of the security forces must not discourage the right of assembly, but rather protect it, so that the dispersal of a demonstration must be justified by the duty to protect persons.[103]
135. On the other hand, as has been highlighted above, sometimes deaths and injuries during demonstrations are not attributable to the use of public force, but to clashes between demonstrators and to the use of violence by violent groups. An example of the former occurred on June 13, 2009 in the village of El Tigre, in the state of Anzoátegui, when, in the course of a campaign convoy called “Globopotazo,” aimed at raising money to pay the fines imposed on Globovisión, the political militant Jhonathan José Rivas Rivas, aged 31, died, while another person suffered gunshot wounds and a third received blows to the head. The demonstrators noted having been attacked by a group of armed civilians, supposedly identified as government supporters. In relation to these facts and upon request of the Office of the Attorney General, this resulted in the arrest order of nine individuals for the alleged commission of the crimes of complicit public intimidation and criminal association as provided for and prohibited by the Penal Code and the Law against Organized Criminality, respectively.[104]
136. In this respect, the Commission considers it relevant to recall that the protection of the right to assembly entails not only the obligation of the State not to interfere with its exercise, but also the duty to adopt, in certain circumstances, positive measures to ensure its exercise, for example, by effectively protecting the participants in a demonstration from physical violence by persons holding divergent views.[105] In addition, the State shall be under an obligation to properly investigate the incidents of violence between individuals during protests or demonstrations, in order to avoid the recurrence of such incidents.
137. According to what has been reported to the Commission, the disproportionate use of force and detention measures in the context of peaceful protests has reached the extreme that on October 31, 2009, ninety workers in the education sector were detained and mistreated by the Bolivarian National Guard during a hunger strike.[106]
138. In addition to the excessive use of force during protests, the right to peaceful demonstration in Venezuela is restricted by the requirement of prior authorization. On this point, the State told the IACHR[107] that according to the Law on Political Parties, Public Assemblies, and Demonstrations,[108] it is necessary to request a permit or authorization from the authorities in order to demonstrate, providing information about the location where the demonstration will take place, those responsible for organizing it, etc. The State indicated that this permits it to take the measures necessary to protect the lives of the demonstrators themselves and that it is perfectly compatible with that which is established by Articles 15 and 22 of the American Convention on Human Rights.
139. In this respect, the IACHR notes that Article 38 of the cited Law on Political Parties expressly states that “[t]he organizers of public meetings or demonstrations must give notice, at least twenty-four hours in advance, in writing with a duplicate copy, during business hours, to the first civil authority of the jurisdiction, with indication of the planned place or itinerary, day, time, and general objective pursued. The authorities, in the same act of receiving the notice, must stamp on the copy that they give to the organizers the acceptance of the location or itinerary and time.” Thus, from the reading of this provision, the IACHR notes that there is a legal requirement to notify the authorities, but not to request their authorization or clearance.
140. Nevertheless, the obligation of prior clearance to hold demonstrations has become a settled practice by the Venezuelan authorities. In fact, the State has pointed out to the IACHR that “all activity of political or social demonstrations fulfilling the legal requirements, i.e., the relevant authorization issued by the appropriate authority, which is an indispensable requirement to hold any demonstration in the national territory, is protected by the authorities.”[109] In its observations on the present report, the State emphasized that “due to the need for prior permits from the State of Venezuela to carry out demonstrations, it has been possible to avoid more deaths and injuries during demonstrations.”[110]. The Commission observes that there is a contradiction between what the legislation establishes and what has become a practice or policy of the State with respect to the necessary requisites for holding a peaceful demonstration.
141. Furthermore, the IACHR has been informed of the existence of discrimination at the moment of granting permits, in that groups that demonstrate in favor of government policies receive authorization to demonstrate in locations in which groups that protest against the government are not authorized to demonstrate. In this respect, the Commission was informed that those who are against the government are not allowed at the Miraflores Palace, the seat of the Venezuelan government.[111] In the same sense, the Commission was informed that there is discrimination at the moment of controlling public protests, to the point that police control and use excessive force against those who protest against the government but do not limit those who demonstrate in favor of official policies in the same way.[112]
142. On this point, the Commission considers that the State may regulate the use of public space by setting, for example, the requirements of prior notice, but the regulations must have the goal of adequately protecting those participating in demonstrations as well as the adoption of relevant measures to ease the exercise of the right to demonstrate without obstructing in a significant way the day-to-day operation of the activities of the rest of the community. Thus, the regulation of the use of public space should not involve requirements that excessively restrict the exercise of the right to peaceful demonstration and its purpose must not be to create a basis for prohibiting assembly or demonstration.[113] Furthermore, the requirement of prior notification must not be confused with the requirement of prior authorization granted as a matter of discretion. It should be remembered that Article 15 of the American Convention protects the right of peaceful assembly, without arms, and establishes that the exercise of this right may only be subject to the restrictions laid down by law that are necessary in a democratic society in the interest of security, or to protect public health or morals or the rights or freedoms of others.
143. On the other hand, beyond the excessive use of force exercised on occasion to suppress protests, and the requirement of prior authorization to hold demonstrations, the Commission observes that frequently the State applies criminal laws to punish, for various reasons, those who exercise their right to peaceful demonstration. In this respect, the organizations Espacio Público and PROVEA organizations have observed a progressive increase in the suppression of demonstrators and in criminal trials for exercising the right to protest, including instances of demonstrations of a peaceful nature[114]. These organizations affirm that this is a tendency that has strengthened during 2009 and that “the Attorney General’s Office, the criminal courts, and the security bodies have established a triangle of power to prosecute those persons who exercise the right to peaceful protest.” [115]
144. Although the Constitution of Venezuela establishes, in Article 68, the right of citizens to demonstrate, peacefully and without arms, with no other requirements but those laid down by law, the IACHR observes that this right has in practice been restricted by means of the application of sanctions contained in laws issued during the government of President Chávez, such as the Penal Code,[116] the National Security Law,[117] the Law for the Defense of Persons regarding Access to Goods and Services,[118] and the Special Law of Popular Defense against Stockpiling and Boycotting and any other conduct affecting the consumption of food or products subject to price controls.[119]
145. In spite of the State not providing any information in response to the Commission’s request with respect to the scope of interpretation of the rules criminalizing protesting, established by the reforms introduced in 2005 into the Penal Code,[120] it has pointed out that “the illegitimate exercise of the right to demonstration and assembly, pertaining to violent or unauthorized demonstrations, implies the practice of actions contrary to the rights of the majority of the population. These transgressions to the social order are, in general, incorporated as unlawful criminal conducts in the Venezuelan Penal Code.”[121]
146. The norms of the Penal Code used to initiate criminal proceedings against protestors are those contained in Article 218, which punishes with a prison term of from one month to two years those who use violence or threats to oppose any public official who is carrying out his or her official duties, or those who have been called upon to support him or her; Article 296, which punishes with prison terms of from three to six years any person who, against the law, imports, manufactures, carries, wields, supplies, or hides explosive or flaming substances or artifacts; Article 357, which punishes with prison terms of from four to eight years those who set any obstacles on the circulation routes of any means of transportation, who open or close communications on such routes, who make any false signals or carry out any other action in order to create a danger of an accident; Article 473, which punishes with prison terms of from one to three months those who in any way destroy, annihilate, damage, or deteriorate things, furniture, or property that belongs to another person; and Article 474, which punishes with prison terms of up to four years those who commit the acts set forth in Article 473 using violence or resistance to authority, or in a group of ten or more persons.
147. Also, among the provisions of the Penal Code most frequently applied to punish those participating in demonstrations are those contained in Article 284, which prohibits the incitement to commit a crime; Article 286, which prohibits anyone from publicly stirring up unlawful disobedience or hatred of some inhabitants by others or encouraging the commission of an act that the law considers a crime, in that it endangers public order; Article 297, which prohibits the firing of weapons or the throwing of explosive or incendiary substances against persons or property with the sole object of creating terror in the public; and Article 358, which characterizes as a crime the blocking of a highway and increases the penalties if several persons take part in such a crime. The form in which the last norm is applied is of particular concern considering that street closures represent the most common method of protesting in Venezuela.
148. With regard to the Organic Law on National Security, the norms applied to participants in protests are those contained in Article 53, which requires every person to comply with all requirements made by the organs of the State in all matters relating to the security and defense of the Nation; and in Article 56, which sanctions with a prison term of 5 to 10 years anyone who organizes, supports, or incites activities within the security zones with the aim of disrupting or affecting the organization or functioning of military installations, public services, basic industries or businesses, or the economic life of the country. This law also contemplates the designation of certain spaces as security zones and spaces of public utility. In this way the right to strike in a basic industry may be criminally sanctioned as a non-compliance with the special regime for zones of security.
149. Furthermore, Articles 138, 139, and 141 of the Law for the defense of persons in accessing goods and services are applied, which prohibit with a prison term of 2 to 10 years the stockpiling, boycott, and withdrawal of goods declared as of prime importance and whose marketing has been confined to the national territory, as well as Articles 20, 24, and 25 of the Special Law for public defense against stockpiling, boycotting, and any other conduct affecting the consumer of food or products subject to price controls, in which stockpiling and boycotting are punishable with prison terms of 2 to 6 years. These provisions establish that the penalties shall be doubled when the offenses are aimed at affecting the collective security of the Nation, destabilizing democratic institutions, or producing panic that threatens the social peace.
150. Thus as a result of applying these measures in Venezuela, whosoever exercises the right to protest is subject to criminal prosecution. Some of these norms, although they have not been applied in concrete cases, inhibit some persons from participating in social protests for fear of possible criminal repercussions. In that line, the State has expressed that “the duty to safeguard order and public security of goods and persons obliges the State to intervene in cases of violent demonstrations that affect social coexistence. […] For that reason, when, during a violent protest, acts are committed that affect social order and that have been established as crimes under Venezuelan laws, the authorities in charge of public order and security are obliged to apprehend the authors of these acts and hand them in to the authorities of the Office of the Attorney General.”[122]
151. The IACHR recognizes the power and obligation of the State to sanction those who commit unlawful acts provided for in its criminal laws and understands that the Venezuelan criminal laws do not sanction peaceful protests per se. Nevertheless, the Commission observes that the excessive use of criminal sanctions applied to those who legitimately exercise their right to protest could have as an effect the criminalization of protests and, as a consequence, intimidate those who want to exercise this means of participating in Venezuela’s public life in order to demand their rights.
152. In this regard the IACHR’s Rapporteurship on Freedom of Expression has pointed out that:
the question is whether the application of criminal sanctions is justified under the Inter-American Court’s stance whereby such a restriction (i.e. criminalization) must be shown to satisfy an imperative public interest that is necessary for the functioning of a democratic society. Another question is whether the imposition of criminal sanctions is the least harmful way of restricting the freedom of expression and right of assembly exercised through a demonstration in the streets or other public space. It should be recalled that in such cases, criminalization could have an intimidating effect on this form of participatory expression among those sectors of society that lack access to other channels of complaint or petition, such as the traditional press or the right of petition within the state body from with the object of the claim arose. Curtailing free speech by imprisoning those who make use of this means of expression would have a dissuading effect on those sectors of society that express their points of view or criticism of the authorities as a way of influencing the processes whereby state decisions and policies that directly affect them are made.[123]
153. The Commission has taken note of numerous cases in which demonstrators have been subjected to criminal trials by virtue of their participation in protests. A landmark case which clearly illustrates the situation occurred during the demonstrations which took place for four days before the closure of the media outlet Radio Caracas Television (RCTV) in May 2007, in consequence of which, in accordance with official figures of the Office of the Attorney General, 251 people were arrested, among them 30 children and adolescents. Of these, 130 were taken before the criminal courts for guarantees (tribunales penales de control). These courts granted precautionary measures substituting liberty with periodic reporting in favor of 88 persons and ordered preventive detention in the cases of 9 persons.[124]
154. Another example of the criminalization of social protesting occurred in March 2008 when a group of workers of the Siderúrgica del Orinoco (SIDOR) Company carried out a peaceful demonstration seeking better working conditions and were held back by the National Guard and State Police using tear gas, firearms, and rubber bullets, causing various injuries. On that occasion, 53 workers were arrested and the Office of the Attorney General charged them with the alleged commission of the offence of blocking a public highway laid down in Article 357 of the Penal Code, inasmuch as the demonstration lead to the closure of the street connecting the Municipalities of Heres and Caroní of the state of Bolívar. In addition, the Attorney General’s Office requested that the court grant provisional measures of periodic reporting and prohibiting an unauthorized absence from their place of residence or from the territorial jurisdiction determined by the court, according to provisions established by Article 256 of the Organic Code of Criminal Procedure. Control Judge No.3 agreed to the commission of the crime and to continuation of the investigation, but granted those accused unconditional bail as they had not been individually charged. The Attorney General’s Office appealed the decision, alleging that it was contradictory, groundless, and inconsistent.[125]
155. Likewise, in the course of its hearings, the Commission received information according to which, in 2008, three students were arrested for photographing a rally in support of the Government and were brought before a military tribunal and charged with spying.[126]
156. The IACHR was also informed that on June 3, 2008, 17 teachers[127] were detained in the General Police Headquarters of Miranda, and were accused of disturbing public order by blocking highways. These teachers had participated in a meeting arranged by the Director of Education of Miranda, in the Emma Soler Complex.[128] The teachers were demonstrating well away from public areas after being present at a meeting aimed at discussing the educators’ collective contracts. Police officers of the State of Miranda proceeded to clear the street using force and tear gas and then arrested them. The teachers were charged with the crime of blocking a public highway, laid down and sanctioned in Article 357 of the Penal Code and they were released under provisional measures requiring them to present themselves to the judicial authorities every 30 days. At the same time they were prohibited from taking part in any further public demonstrations.[129]
157. In addition, the Commission was informed that on August 23 2008, Tomás Becerra, a member of the Orinoco audiovisual cooperative; Kelys Amundaray, from the organization Homo et Natura; María de los Ángeles Peña, a member of the group Mujer Quilombo; and Mariluz Guillén, a member of the Support Network for Justice and Peace, were arrested by officers of Squad No. 36 of the National Guard as they were participating in a humanitarian convoy called “A Hymn to Peace” which was taking food and medicine to the indigenous community of Yukpa, in the state of Zulia. As it was reported, the first person to be arrested was Tomás Becerra, who was injured by the officers. Thereafter, the other three people tried to intervene to stop Becerra from being beaten and were themselves immediately arrested also. The available information shows that Becerra, Guillén, Mundaraín, and Peña were granted a provisional measure in substitution of detention and were later charged with intentional wounding, resisting the police, and damaging State property.[130]
158. Also, during a hearing the IACHR was informed of the prosecution in January 2009[131] of four human rights defenders who were arrested and criminally charged after attempting to participate in a symbolic action in support of indigenous communities in the sierras of Perijá. These communities are at present in the process of reclaiming their lands. As the IACHR was informed, the National Guard not only blocked the way of people participating in the meeting but attacked one of them and then detained and brought before the national courts those who intervened to prevent the violence.
159. In February 2009, three university students were detained for leading an unauthorized demonstration in the area surrounding the seat of the Government of the State of Aragua. Two of them were prosecuted for the alleged offence of resisting the police, laid down and prohibited in Article 218 of the Penal Code, while a third was prosecuted for the same offence, in addition to inciting public unrest, set out in Article 285 of the same code. The students were released under provisional conditions obliging them to report to the judicial authorities every 30 days.[132]
160. In May of 2009, eleven workers of a company contracted by the state-owned company Petróleos de Venezuela were deprived of their liberty as a result of the peaceful taking of the headquarters of the Ministry of Popular Power for Labor. The Office of the Attorney General charged them with the crimes of aggravated damages to public property, illegitimate deprivation of liberty, aggravated resistance of authority, active obstruction of the functions of legally constituted institutions, insult to public functionaries, instigation of crime, aggravated intentional personal injuries, use of children to commit crimes, unlawful association, and conspiracy to commit crimes.[133]
161. In addition, on August 26, 2009, eleven workers of the Office of the Metropolitan Mayor were detained. With other work colleagues, they were in a demonstration to demand employment security and tried to join with those attempting to submit a constitutional motion before the Supreme Court of Justice challenging the Law of the Metropolitan Two Tier Municipal System, which, they believed, would leave eight thousand unemployed due to economic cuts. The Mayor’s Office workers were arrested in the vicinity of the National Pantheon while protesting, which, according to the Attorney General’s Office, caused breaches of the public order and injury to an officer of the Metropolitan Police. On the other hand, the Mayor’s Office workers reported that they had been attacked by police officers. The eleven workers remained in detention until October 29, 2009 and have been charged with offences of aggravated wounding, obstruction of public highways, resisting arrest, and using electronic devices to interfere with signals from security equipment.[134]
162. On September 24, 2009, the Secretary General of the Syndicate of the company Ferrominera del Orinoco and mid-level leader of the PSUV (United Socialist Party of Venezuela, by its Spanish acronym) was deprived of liberty and later the First Tribunal of Control of Criminal Jurisdiction of Puerto Ordaz, state of Bolívar, ordered house arrest against him for having led a strike. The Attorney General’s Office charged him with the crimes of unlawful association, instigation of crime, restriction of the freedom to work, and lack of compliance with the special regime of security zones established in the Organic Law of the Nation.[135]
163. From information in newspapers, the Commission took note that on September 29, 2009, a group of workers had gathered in the Las Morochas zone in the Costa Oriental del Lago, state of Zulia, to protest that none of them had been included in the payroll of Venezuela Petroleum (PDVSA, by its Spanish acronym). Around midnight, a convoy had arrived with approximately 40 officers of the National Guard who violently removed the petroleum workers. On that night, no arrests were reported, but at 7 o’clock in the morning of September 30, members of the Army arrested the 17 workers at their homes. According to the information available, the workers were released when representatives of the Attorney General’s Office realized that they had been beaten by members of the National Guard.[136]
164. The Commission has also followed closely the wave of detention orders issued relating to involvement in a march against the Organic Law on Education, which took place on August 22, 2009. On that day, massive demonstrations were held with significant participation of the student movement in which people both for and against the above law were marching at the same time. The authorities had established that the opposition marchers would start their demonstration at the intersection of Francisco de Miranda Avenue and Centro Lido, and finish in Libertador Avenue, in the building serving as the Headquarters of Venezuelan National Telephone Company, LLC (Cantv, by its Spanish acronym). However, at the end of the march certain persons apparently overturned the barriers erected by the security forces causing violent clashes between the demonstrators and the authorities in charge of public order.
165. That day, while the Ministry of Popular Power for Interior Relations and Justice made statements on the events that took place at the end of the demonstration, demonstrator Pablo Emilio Palacios was arrested and charged with the offense of resisting the police and incitement to commit crimes. Also in relation to this demonstration, on August 27, an arrest warrant was issued against the leader of the Alianza al Bravo Pueblo party, Oscar Pérez, who requested asylum in Peru[137] on the grounds that the accusation against him is grounded on political persecution. Oscar Pérez had called for a demonstration on August 22, 2009 against the Education Law and was charged with the alleged participation in the offenses of instigation and association to commit crimes.
166. Richard Blanco, Prefect of Caracas, was also detained for the alleged commission of the same crimes. The Prefect was arrested on August 26 in the afternoon, by members of the Corps for Scientific and Criminal Investigations, pursuant to an arrest order relating to his alleged responsibility for the injuries caused to a member of the Metropolitan Police during the opposition demonstration on August 22. According to what was reported to the IACHR, the police officer was dressed in civilian clothing and infiltrated the march and a group of protestors demanded that he leave, which led Richard Blanco to intercede to prevent the crowd from injuring the police officer. On August 29, Prefect Richard Blanco was charged with grievous bodily harm and instigation to commit crimes. The Attorney General indicated that the Prefect of Caracas had been detained for allegedly having injured a citizen and not for participating in the protest called by political sectors. She explained that, because of the demonstration, the commissioned prosecutors initiated an investigation on the grounds that during the march “violent acts, injuries to persons, attacks against private and state property, subversion of public order, and blocking of public highways” occurred and, pursuant to the investigation, the participation of the Prefect of Caracas in these acts is presumed.[138]
167. Due to the demonstration of August 22 against the Organic Law on Education, on Monday, September 5, Julio César Rivas Castillo, a student of the University Alejandro Humboldt of Carabobo, was arrested at his home in the housing complex El Trigal, in Valencia. Rivas Castillo, 22 years of age, has denounced various irregularities in relation to his detention, such as: an excessive number of police officers at the time of his detention; his transfer to Caracas without his family being informed; interrogation without the presence of his lawyers; lack of contact with his lawyers for at least fifteen hours after his detention; being held for twelve hours inside a cell; lack of contact with his family for fifteen days after his detention; being held in a high security facility; and being held in a cell with convicts.[139] According to information provided by the State, in several opportunities Julio César Rivas had “challenged the police authority, hindering their work, unlawfully opposing the police commission, even to the point of launching tear gas against them.” Therefore, the State emphasizes that his detention is not due to his participation in the mentioned public protest, but due to his violent attitude, by putting social peace and public order at risk, violating citizens’ guarantees. Rivas was accused of leading clashes during the reported march and was charged for allegedly committing the crimes of resisting authority by using generic weapons, referred to in Article 218 paragraph 2 of the Criminal Code in relation to Articles 428 and 273 ejusdem; public incitement to disobey laws, provided for in Articles 283 paragraph 1 and 285, both of that substantive text; and incitement to civil war, laid down in Article 293 of the same Code.[140]
168. Even though Julio César Rivas and the others detained because of their participation in the demonstrations of August 22 have been released, their arrests set off a number of protests and hunger strikes in various cities of the country, demanding the liberation of those considered political prisoners, as well as an on-site visit of the IACHR to Venezuela. Those who joined the hunger strike requested that the Commission visit the country to verify, among other situations, the alleged police and judicial repression of those who exercise the right to demonstrate peacefully.[141]
169. In light of the information received, on September 29, 2009, the Commission, pursuant to the powers and obligations established in Articles 41 and 43 of the American Convention, requested information from the State on this situation and in particular on the legal framework applicable to the detention of persons in the context of demonstrations or public protests against official policies and on the state of investigations initiated against persons detained in application of that legal framework.[142]
170. The Commission considers that the manner in which participation in demonstrations is being penalized may have a chilling effect on a form of participative expression of society. The IACHR has already indicated that the imposition of prison sentences on those who utilize this form of expression has a deterrent effect on those sectors of society that express their points of view or their criticism of the government as a way of affecting the decision-making process and the state policies that affect them directly.[143] In this sense, the Commission calls upon the State to abstain from using criminal provisions with the purpose of restricting the exercise of the right to peaceful demonstration.
171. Finally, the Commission observes that through their expressions and statements, high-ranking authorities have also pronounced against those who exercise their right to peaceful demonstration, causing the population to abstain from participating in protests to defend their rights due to fear of reprisals. An example of speech directed at questioning demonstrations was delivered by President Chávez in Campo, Carabobo on January 17, 2009. The President stated the following:
[…] Minister of the Interior, throw gas at them and dissolve any guarimba, we cannot start showing weakness as a government, we cannot. I make responsible the Vice President, the Ministry of the Interior, and the Commander of the National Guard [...]. We cannot let anyone interrupt an avenue or a street or a highway, these small groups guided by the empire, I tell you and give the order once and for all [...] From now on, to whoever burns a car, burns trees, blocks a street, just throw good gas at them and put them in jail. If they do not do it, I shall remove the responsible chiefs, I shall remove them all […][144].
In its observations on the present report, the State indicated that this speech “was justified by the situations of violence and instability provoked in the country during the years 2002, 2003, and 2004, by the same political sectors that have manipulating the students during 2009.”[145]
172. In the same line, on August 28, 2009, by reason of the demonstrations called to protest against the Organic Law on Education, the Attorney General of the Republic announced that she would seek the prosecution of all those persons who undermine the tranquility and public peace in the country. She affirmed that certain persons look for “any reason to demonstrate, any reason to create chaos, what they want is to destabilize,” and in this sense she considered that their conduct fits perfectly with the offence of civil rebellion, which, in accordance with Article 143 of the Penal Code, establishes a prison sentence of between 12 and 24 years for those who behave in public in a hostile manner against the legally constituted or elected government in order to oust it or to prevent the exercise of its mandate. She stated that these would be the consequences for “those persons who react in a hostile manner against a legally-constituted government.”[146]
173. In the light of the information contained in the previous paragraphs, the Commission reiterates to the State of Venezuela that it is its duty to guarantee in social protests taking place pursuant to the right to assembly and peaceful protest, that the rights to life, personal integrity, and personal liberty of all demonstrators is protected. According to what the Commission has established in prior opportunities, the State has the right to impose reasonable limitations on demonstrations, in order to ensure that these are of a peaceful nature or to contain those persons who are demonstrating in a violent manner. However, in exercising this power, the acts of its agents should be limited to employing the measures that are the safest and least harmful to persons, in view of the fact that the dispersal of a demonstration must be justified by the duty to protect them. Congruently, the legitimate use of public force in the above situations, presupposes, necessarily, that it is proportional to the legitimate aim to be pursued, reducing to a minimum the possibility of causing personal injury and loss of human life.[147]
174. Additionally, the right to assemble and demonstrate peacefully implies that the state authorities should refrain from impeding the exercise of this right, as well as anticipate measures to prevent third parties from impeding it. This means that the State must adopt the necessary measures in order that demonstrations can take place in an effective and peaceful manner, including measures of rerouting traffic and police protection of demonstrations and gatherings, should this prove necessary.
175. Also, taking into account the high level of protection merited by the right to assembly and freedom of expression as rights that materialize civic participation and the control of the actions of the State in public matters, the State must refrain from applying criminal law provisions that have as their object the restriction of the exercise of the right to peaceful demonstration. In its observations on the present report, the State expressed “that each time the sectors aligned with the opposition to the government attempt to alter the public order in violation of the laws of the Republic, they shall be subjected to judgment, and this cannot be interpreted as a restriction of the right to peaceful demonstration, nor as a criminalization of legitimate mobilization and social protest.”[148].
176. The Commission considers it opportune to recall that the effective exercise of democracy demands as a precondition the full exercise of the rights and fundamental freedoms of the citizens. Thus, the criminalization of legitimate social mobilization and protest, be it through the direct repression of the demonstrators, or through the initiation of judicial proceedings, is incompatible with a democratic society where people have the right to express their opinions.[149]
177. In light of what the Commission has analyzed in the present chapter with respect to political rights and participation in public life in Venezuela, particularly in relation to the restrictions on access to and exercise of political rights under conditions of equality, the reprisals against members of the opposition, and the criminalization of peaceful demonstrations, the IACHR urges the State of Venezuela to adopt the measures necessary to guarantee unconditional respect for the political rights of citizens and authorities of all political leanings, as well as to ensure the full exercise of rights that are closely linked to political participation, such as freedom of association and expression, according to the norms of the American Convention.
E. Recommendations
178. To guarantee the conditions necessary for the full exercise of political rights, the Commission recommends:
1. To adopt the necessary measures to promote tolerance and diversity in the exercise of political rights, abstaining from fomenting all types of reprisals against ideological dissent.
2. To generate the optimal conditions and mechanisms in order that political rights may be exercised in a meaningful way, respecting the principle of equality and non-discrimination.
3. To adopt the necessary measures to guarantee equal opportunity for access to power for candidates of the opposition.
4. To refrain from requiring the participation of civil servants in government’s propaganda campaigns, as well as from applying unwarranted pressure on civil servants at the moment of voting.
5. To adapt domestic law, in particular Article 105 of the Organic Law of the Office of the Comptroller General of the Republic and the National Fiscal Oversight System declaring ineligibility to become a candidate for election, to the provisions of Article 23 of the American Convention.
6. To strengthen due process guarantees in the administrative proceedings of the Office of the Comptroller General of the Republic pursuant to the standards of Article 8 of the American Convention.
179. In order to guarantee the right to peaceful demonstration as a means of social participation and the exercise of the right to assembly and freedom of expression, the IACHR recommends:
1. To adopt the necessary measures to guarantee the protection of the right to life and physical integrity of all demonstrators during social mobilizations.
2. To abstain from all arbitrary and/or excessive use of force during protests.
3. To ensure that measures used to control demonstrations that turn violent are the safest and least injurious to persons and that they are always limited by the principles of legal necessity and proportionality.
4. To investigate and punish any excessive use of force as a method of repression of peaceful protests, as well as any violation to the right to life and physical integrity by individuals in these events, to the effect of ensuring that any excesses do not recur.
5. To abstain from applying criminal provisions having as their object the restriction of the exercise of the right to peaceful demonstration.
6. To adopt measures so that civil servants will refrain from making statements that intimidate those wishing to exercise their right to peaceful protest, threatening to use severe force or to prosecute them pursuant to criminal provisions establishing prison sentences.
7. To implement all necessary measures to ensure equal treatment for those protesting in favor of or against the government.
8.
To comply effectively with the recommendations of the Inter-American
Court in its decision in the case of “El Caracazo,”[150]
including: a) to take all necessary steps to educate and train all
members of its armed forces and its security agencies regarding
principles and provisions on protection of human rights and the limits
to which the use of weapons by law enforcement officials is subject,
even under a state of emergency; b) to adjust operational plans
regarding public disturbances to the requirements of respect for and
protection of said rights, and to this end to take, among other steps,
those required to control actions by all members of security forces in
the field of operations to avoid excess; and c) to ensure that, if it is
necessary to resort to physical means to face public disturbances,
members of the armed forces and security agencies will use only those
strictly necessary to control such situations in a rational and
proportional manner, respecting the right to life and to humane
treatment. [TABLE OF CONTENTS | PREVIOUS | NEXT] [12] I/A Court H.R., Case of Yatama v. Nicaragua. Judgment of June 23, 2005. Series C No. 127, para. 195. [13] IACHR. Report on the Situation of Human Rights in Peru (2000). Chapter IV, para. 1. [14] IACHR. Report No. 137/99, Case 11,863 (Andrés Aylwin Azócar et al.). December 27, 1999, para. 31. [15] I/A Court H.R., Case of Yatama v. Nicaragua. Judgment of June 23, 2005. Series C No. 127, para. 192. [16] I/A Court H.R., Case of Castañeda Gutman v. Mexico. Judgment of August 6, 2008. Series C No. 184, para. 142. [17] Inter-American Democratic Charter, Article 3. [18] I/A Court H.R., Case of Castañeda Gutman v. Mexico. Judgment of August 6, 2008. Series C No. 184, para. 143. [19] The Venezuelan State’s response to the draft of Chapter IV on Venezuela, which the Commission received on December 21, 2007, p. 52. [20] The Venezuelan State’s response to the draft of Chapter IV on Venezuela, which the Commission received on February 6, 2009. [21] The Venezuelan State’s response to the draft of Chapter IV on Venezuela, which the Commission received on February 6, 2009. [22] PROVEA. Situación de los Derechos Humanos en Venezuela Informe Anual Octubre 2007/Septiembre 2008 (Situation of Human Rights in Venezuela, Annual Report October 2007/September 2008), December 10, 2008, p. 26. [23] The Venezuelan State’s response to the draft of Chapter IV on Venezuela, which the Commission received on December 21, 2007, p. 46. [24] One complaint, for example, was that on the occasion of the February 15, 2009 elections, voter registration was not opened for potential new voters who had reached their majority since the registrations taken for the previous elections, thereby preventing them from exercising their right to vote.
[25]
IACHR. Annual Report 2006. Chapter IV: Human Rights
Developments in the Region. Venezuela, [26] Information provided by the petitioners to the IACHR: Hearing on the Institutional Structure and Human Rights in Venezuela. 134th Period of Sessions, March 24, 2009. [27] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGEV/000598 of December 19, 2009, p. 23. [28] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGEV/000598 of December 19, 2009, p. 22. [29] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGEV/000598 of December 19, 2009, p. 23. [30] SINERGIA was advised that the administrative inquiry was launched pursuant to Articles 293(3) of the Constitution of the Bolivarian Republic of Venezuela and 33(20) of the Organic Law of the Electoral Authority. The purpose of the inquiry was to determine whether election-related offenses provided for in Article 55, paragraph 12, of the Rules to Regulate the Constitutional Referendum had been committed. According to the most recent information received by the Commission, SINERGIA had not yet been notified of the findings of the inquiry (Information provided by the petitioners to the IACHR: Hearing on the Institutional Structure and Constitutional Guarantees in Venezuela. 133rd Period of Sessions, October 28, 2008). [31] Rafael Ramírez’s speech to PDVSA employees. Video of the speech available at: http://www.youtube.com/watch?v=dmXpbT7Fhiw. [32] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGEV/000598 of December 19, 2009, p. 24. [33] See, IACHR. Report No. 67/08, Petition 275-08 Leopoldo López Mendoza. Venezuela, July 25, 2008. [34] Article 105 of the Organic Law of the Office of the Comptroller General of the Republic and of the National System of Fiscal Control, published in the Official Gazette of the Bolivarian Republic of Venezuela No. 37.347 of December 17, 2001, reads as follows: “Article 105. Under the provisions of Articles 91 and 92 of this law, the finding of administrative responsibility will be sanctioned with the fine established in Article 94 depending on the seriousness of the offense and the amount of damages caused. It will be the exclusive responsibility of the Comptroller General of the Republic, and only of the Comptroller General, without any other proceeding required, and depending on the seriousness of the crime committed, to suspend the responsible individual from his position without pay for a period no longer than twenty-four (24) months or to remove that individual from office, with the highest authority being responsible for executing the action; and, depending on the gravity of the offence, to bar the individual from occupying any public office or position for up to a maximum of fifteen (15) years, in which case the Comptroller General must forward all pertinent information to the human resources office of the entity or agency where the events took place in order that it may follow the appropriate course of action […].” [35] In its observations on the present report, the State explained that “the motive for which the Comptroller General of the Republic handed over the first list of citizens disqualified from holding public office, which included 398 functionaries, to the National Electoral Council, and later rectified it, and provided another list of only 260, was due to the fact that the disqualifications are for a limited time, and reviewing the previous list, it was clear that some functionaries had completed their period of disqualification.” Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGEV/000598 of December 19, 2009, p. 25. [36] As for the importance of political rights, it is important to note that Article 27 of the American Convention prohibits the suspension of political rights and the judicial guarantees necessary to protect them (I/A Court H.R., The Word “Laws” in Article 30 of the American Convention on Human Rights. Advisory Opinion OC-6/86 of May 9, 1986. Series A No. 6, para. 34; and Case of Yatama v. Nicaragua. Judgment of June 23, 2005. Series C No. 127, para. 191). [37] I/A Court H.R., Case of Castañeda Gutman v. Mexico. Judgment of August 6, 2008. Series C No. 184, para. 155. [38] I/A Court H.R., Case of Baena Ricardo et al. v. Panama. Judgment of February 2, 2001. Series C No. 72, para. 106. [39] Article 105 of the Organic Law on the Office of the Comptroller General and the National System of Fiscal Control, published in the Official Gazette of the Bolivarian Republic of Venezuela, No. 37.347, December 17, 2001. [40] I/A Court H.R., Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Judgment of August 5, 2008. Series C No. 182, para. 78; Case of Yatama v. Nicaragua. Judgment of June 23, 2005. Series C No. 127, paras. 152 and 153; and I/A Court H.R., Case of Chaparro Alvarez and Lapo Íñiguez. v. Ecuador. Judgment of November 21, 2007. Series C No. 170, para. 107. [41] Constitutional Chamber of the Supreme Court of Venezuela. Judgment of August 5, 2008. Case file: 05-1853. Justice writing for the Court: Arcadio Delgado Rosales. [42] Constitutional Chamber of the Supreme Court of Venezuela. Judgment of August 6, 2008. Case files 06-945, 06-1616, 06-1799, 06-1802, 07-901, 07-1257, 08-422 and 08-518, all combined in Case No. 06-0494. Justice writing for the Court: Carmen Zuleta de Merchán. [43] Constitutional Chamber of the Supreme Court of Venezuela. Judgment of August 6, 2008. Case files No. 06-945, 06-1616, 06-1799, 06-1802, 07-901, 07-1257, 08-422 and 08-518, all combined in Case No. 06-0494. Justice writing for the Court: Carmen Zuleta de Merchán. [44] Press release from the Supreme Court of Justice: Confirman la constitucionalidad de las inhabilitaciones administrativas (Constitutionality of administrative disqualifications upheld). August 6, 2008. Available in Spanish at: http://www.tsj.gov.ve/informacion/notasdeprensa/notasdeprensa.asp?codigo=6304. [45] I/A Court H.R., Case of Baena Ricardo et al. v. Panama. Judgment of February 2, 2001. Series C No. 72, para. 106. [46] I/A Court H.R. The Word “Laws” in Article 30 of the American Convention on Human Rights. Advisory Opinion OC-6/86 of May 9, 1986. Series A No. 6, para. 18. [47] I/A Court H.R., Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, para. 65. [48] I/A Court H.R., Case of Yatama v. Nicaragua. Judgment of June 23, 2005. Series C No. 127, para. 206. [49] I/A Court H.R., Case of Castañeda Gutman v. Mexico. Judgment of August 6, 2008. Series C No. 184, para. 174. [50] IACHR, Annual Report 2006, Chapter IV: Human Rights Developments in the Region, Venezuela, para. 222, citing: IA Court H.R., Case of Herrera Ulloa v.Costa Rica. Judgment of July 2, 2004. Series C. No. 107, para. 113; Case of Ivcher Bronstein v. Peru, Judgment of February 6, 2001. Series C No. 74, para. 152; Case of “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile, Judgment of February 5, 2001. Series C No. 73, para. 69; Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 29, ECHR 2003-XI; Perna v. Italy [GC], no.48898/98, § 39, ECHR 2003-V; Dichand and others v. Austria, no. 29271/95, § 37, ECHR 26 February 2002; Eur. Court H.R., Case of Lehideux and Isorni v. France, Judgment of 23 September, 1998, para. 55; Eur. Court H.R., Case of Otto-Preminger Institut v. Austria, Judgment of 20 September 1994, Series A no. 295-A, para. 49; Eur. Court H.R., Case of Castells v. Spain, Judgment of 23 April 1992, Series A. No. 236, para. 42; Eur. Court H.R., Case of Oberschlick v. Austria, Judgment of 25 April 1991, para. 57; Eur. Court H.R., Case of Müller and Others v. Switzerland, Judgment of 24 May 1988, Series A no. 133, para. 33; Eur. Court H.R., Case of Lingens v. Austria, Judgment of 8 July 1986, Series A no. 103, para. 41; Eur. Court H.R., Case of Barthold v. Germany, Judgment of 25 March 1985, Series A no. 90, para. 58; Eur. Court H.R., Case of The Sunday Times v. United Kingdom, Judgment of 29 March 1979, Series A no. 30, para. 65; and Eur. Court H.R., Case of Handyside v. United Kingdom, Judgment of 7 December 1976, Series A No. 24, para. 49. [51] Information provided by the petitioners to the IACHR. Hearing on Institutionality and Guarantees of Human Rights in Venezuela. March 24, 2009. [52] The city of Caracas, the capital of the Republic, has five municipalities: Libertador, Baruta, Hatillo, Sucre and Chacao, all of which are in the state of Miranda. [53] Special Law on the Organization and Regime of the Capital District. Published in the Official Gazette No. 39,156 of April 13, 2009. [54] It is also worth noting that the creation of an office of head of the capital city government, appointed at the discretion of the President of the Republic, was part of the proposed constitutional amendment that was rejected in the December 2, 2007 referendum. [55] The Mayor of Metropolitan Caracas, Antonio Ledezma, filed an action seeking protective relief from this law; the Supreme Court declared the action inadmissible on the grounds that the Mayor did not have the authority to argue that he was defending the collective rights of the people of Caracas. [56] Decree No. 6.666 published in Official Gazette No. 39.157. [57] Special law on Transfer of the Funds and Property Temporarily Administered by the Caracas Metropolitan District to the Capital District, published in the Official Gazette No. 39.170 of May 4, 2009. [58] Published in the Official Gazette No. 39,276 of October 1, 2009. [59] National Assembly of the Bolivarian Republic of Venezuela. Press clipping: Sancionan Ley Especial Régimen Municipal a Dos Niveles del Área Metropolitana (Law on the Special Municipal Regime of a Two-Tier System for the Metropolitan Area is Approved). Wednesday, August 26, 2009. Available in Spanish at: http://www.asambleanacional.gob.ve/index.php?option=com_content&task=view&id=22922&Itemid=63. [60] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGEV/000598 of December 19, 2009, pp. 26-28. [61] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGEV/000598 of December 19, 2009, pp. 27-28. [62] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGEV/000598 of December 19, 2009, p. 31. [63] Letter from the governors of the states of Miranda, Zulia, Nueva Esparta, Carabobo and Táchira and from the Mayor of the Caracas Metropolitan District to the Secretary General of the Organization of American States, July 15, 2009. [64] Law on Partial Amendment of the Organic Law on Decentralization, Delimitation and Transfer of Government Authorities, published in Official Gazette No. 39.140 of March 17, 2009. [65] The amendments were in response to a Supreme Court of Justice ruling that ordered the Decentralization Law revised. [66] It is worth recalling that the draft amendment to the Constitution which the public voted down in the December 2, 2007 referendum, proposed that the adjective “exclusive” be dropped from the list of authorities provided there. [67] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGEV/000598 of December 19, 2009, p. 26. [68] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGEV/000598 of December 19, 2009, p. 33. [69] I/A Court H.R., Case of Castañeda Gutman v. Mexico. Judgment of August 6, 2008. Series C No. 184, para. 148. [70] I/A Court H.R., Case of Yatama v. Nicaragua. Judgment of June 23, 2005. Series C No. 127, para. 195. [71] Note from the Venezuelan State to the Commission, dated December 7, 2004. [72] Special Decree with the Hierarchy, Value and Force of Law on Amnesty No. 5 No. 5.790. Published in the Extraordinary Official Gazette No. 5.870, December 31, 2007. [73] Speech by Germán Saltron, Human Rights Agent for the Venezuelan State before the Inter-American and International systems, during the hearing held on March 24, 2009, with the Inter-American Commission on Human Rights, during its 134th Period of Sessions. [74] See IACHR. Annual Report 2005. Chapter IV: Human Rights Developments in the Region, Venezuela, para. 327, which cites various examples of how this list continues to affect broad sectors of society. [75] In the words of President Chávez: “This episode is behind us now. If anyone resorts to the list in order to make a personnel decision about someone, he or she is carrying the past into the present and perpetuating situations that we have moved beyond. […] The famous list certainly played an important role at a given point in time, but that’s over now. We call upon all our citizens to build bridges. I say this because some letters have been sent to me that lead me to believe that in some quarters the Tascón list is still being used to determine whether a person will or will not work. Let’s bury the Tascón list.” (Statement by Venezuelan President Hugo Chávez at the V Mobile Cabinet Meeting, April 15, 2005, in the city of Puerto Ordaz). [76] On the Web site http://www.firmantes.com/index.php there are complaints from Venezuelan citizens claiming that they have been denied jobs or been dismissed because they signed the petition for a referendum to recall President Chávez and their name appears on the “Tascón list”. The media, too, have reported that the Venezuelan petroleum company PDVSA continues to use the Tascón list to dismiss employees who signed the petition for the referendum to recall President Hugo Chávez in 2004. See: Noticiero Digital.com. Denuncian que bajan sueldos a obreros de contratistas petroleras expropiadas (Complaints of reduced salaries for workers of expropriated petroleum company-contractors). May 21, 2009, available in Spanish at: http://www.noticierodigital.com/?p=32188. [77] BBC: Venezuela/gobierno: "Rosales huyó" (Venezuela/government: “Rosales fled”). April 7, 2009. Available in Spanish at: http://www.bbc.co.uk/mundo/america_latina/2009/03/090406_0029_venezuela_rosales_huida_mf.shtml; El Espectador. Alcaldes de Maracaibo y Caracas, en problemas para ejercer (Mayors of Maracaibo and Caracas have problems carry out their duties). April 8, 2009. Available in Spanish at: http://www.elespectador.com/impreso/internacional/articuloimpreso135104-alcaldes-de-maracaibo-y-caracas-problemas-ejercer; Semana. Piden arresto de alcalde opositor a Chávez (Arrest of mayor opposed to Chávez requested). March 20, 2009. Available in Spanish at: http://www.semana.com/noticias-mundo/piden-arresto-alcalde-opositor-chavez/121943.aspx. [78] Presidential Decree No. 1731, published in the Official Gazette of the Bolivarian Republic of Venezuela No. 3.7414 of April 2, 2002, available in Spanish at: http://www.tsj.gov.ve/gaceta/abril/020402/020402-37414-01.html; Presidential Decree No. 1732, published in the Official Gazette of the Bolivarian Republic of Venezuela No. 3.7414 of April 2, 2002, available in Spanish at: http://www.tsj.gov.ve/gaceta/abril/020402/020402-37414-01.html; Presidential Decree No. 1733, published in the Official Gazette of the Bolivarian Republic of Venezuela No. 3.7414 of April 2, 2002, available in Spanish at: http://www.tsj.gov.ve/gaceta/abril/020402/020402-37414-01.html. [79] Presidential Decree No. 1690 published in the Official Gazette of the Bolivarian Republic of Venezuela No. 37.392 of February 26, 2002, available in Spanish at: http://www.tsj.gov.ve/gaceta/febrero/260202/260202-37392-01.html. [80] Declarations of the Representative of the State of Venezuela before the Inter-American Court of Human Rights. Public Hearing in the case of Usón Ramírez v. Venezuela, held on Wednesday, April 1, 2009 in Santo Domingo, Dominican Republic. Also in the final pleadings of the State submitted to the Court in a communication by the State on May 11, 2009 and sent by the Court to the IACHR on May 26, 2009 (REF: CDH-12.554/107), pp. 31-33.
[81]
I/A Court H.R., Case of Usón Ramírez v. Venezuela. Judgment
of November 20, 2009. Series C [82] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGEV/000598 of December 19, 2009, p. 36. [83] According to PROVEA, there were 16 victims in detention for political reasons in the period of 2008-2009 covered by its Annual Report. (PROVEA. Annual Report 2009, pp. 283 and 288). The organization FUNDEPRO sent the Commission a document that identified 14 cases of persons deprived of their liberty allegedly for political reasons; these cases involved over 30 persons. (the document is available at http://www.fundepro.com.ve/fundepro/PDF/encarte%202009.pdf). On September 11, 2009, the organization Venezuela Awareness Foundation sent the Commission a list detailing 32 cases of persons deprived of liberty allegedly for political reasons. (The list is available at: http://www.venezuelaawareness.com/Presos/indexpresos.asp). The students who held hunger strikes outside the OAS offices in Venezuela have sent letters to the IACHR detailing 27 cases of persons deprived of liberty in Venezuela, supposedly for political reasons (Notes of September 27, 2009 and November 27, 2009). On September 24, 2009, Mrs. Nubia Castillo Sarmiento, mother of student Julio César Rivas, sent the IACHR a communication that included a list of 39 cases of persons allegedly detained for political reasons, including her son, who was in detention at that time. Through a note dated October 26, 2009, Mr. Emilio Berrizbeitia, representative of Mr. Eligio Cedeño, sent the Commission information about the proceedings against and the detention of Mr. Cedeño, expressly requesting that his case be included as part of the analysis of the “the situation of political prisoners in Venezuela” in the present report. [84] Information presented by the State to the IACHR. Hearing on the Situation of Human Rights in Venezuela. 137th Period of Sessions, November 2, 2009. [85] Public communiqué of the students, dated September 29, 2009. [86] In relation to the acts of aggression against the staff of the Metropolitan Mayor’s Office, the IACHR received a request for precautionary measures and the Commission decided to request information from the State regarding the situation. [87] Annex “A1” to the request for precautionary measures 65-09 filed before the Commission on March 18, 2009. [88] The State’s May 18, 2009 response to the Commission’s request for information. [89] The State’s May 18, 2009 response to the Commission’s request for information. [90] In this regard, see: IACHR. Report on the Situation of Human Rights Defenders in the Americas. March 7, 2006, para. 55. See also IACHR. Preliminary Observations of the Visit to Honduras. August 21, 2009. [91] Information provided by the petitioners to the IACHR. Hearing on the Judicialization of Social Protest. 137th Period of Sessions, November 2, 2009. [92] Information provided by the State to the IACHR. Hearing on the Situation of Human Rights in Venezuela. 137th Period of Sessions, November 2, 2009. [93] Information provided by the petitioners to the IACHR. Hearing on the Judicialization of Social Protest. 137th Period of Sessions, November 2, 2009. [94] Information provided by the petitioners to the IACHR. Hearing on the Judicialization of Social Protest. 137th Period of Sessions, November 2, 2009. [95] El Universal. Protestar es un Crimen (Protesting is a Crime). Sunday, May 17, 2009. Available in Spanish at http://politica.eluniversal.com/2009/05/17/pol_art_protestar-es-un-crim_1389114.shtml. Also: El Universal. Contabilizan más de dos mil procesados por protestar (More than two thousand charged for protesting). September 1, 2009. Available in Spanish at: http://www.eluniversal.com/2009/09/01/pol_art_contabilizan-mas-de_1546954.shtml. [96] Press Release of the organizations: Programa Venezolano de Educación-Acción en Derechos Humanos (PROVEA); Unidad Socialista de Izquierda (USI); Corriente Clasista Unitaria Revolucionaria y Autónoma (CCURA); Acción Solidaria; Convite, Periódico El Libertario; Espacio Público; COFAVIC; Colectivo Socialismo Revolucionario (CSR); Liga de Trabajadores por el Socialismo (LTS); Movimiento Solidaridad Laboral; Sinergia; Comité de Víctimas contra la Impunidad Lara; Indubio Pro Reo; and Domingo Alberto Rangel. Campaña por la defensa del derecho a la protesta social (Campaign for the defense of the right to social protest). July 12, 2009. Available in Spanish at: http://www.derechos.org.ve/videos/campana-por-la-defensa-de-la-protesta-social-71. [97] Espacio Público and PROVEA. Manifestaciones públicas. Enero – Agosto 2009 (Public Demonstrations. January – August, 2009). Second Quarterly Report on protests in Venezuela. Available at: http://www.derechos.org.ve/proveaweb/wp-content/uploads/Manifestaciones-2do-cuatrimestre-20092.pdf. [98] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGVE/000598 of December 19, 2009, p. 38. [99] Alexander García and Pedro Suárez, Mitsubishi Motors’ workers, involved in a demonstration because of the firms’ refusal to renew their collective contract; Yuban Antonio Ortega, a university student of the state of Mérida; and José Gregorio Fernández, neighbor of the state of Anzoátegui, who demanded proper housing. [100] Jonathan Rivas Rivas in a political demonstration in El Tigre, state of Anzoátegui and Maite Mendible, neighbor of the Brión municipality in the state of Miranda, who demanded better safety in the community during the closure of the public highway. [101] Office of the Attorney General. Press note: A juicio tres policías de Mérida presuntamente implicados en muerte de estudiante universitario (Three police officers from Mérida charged in death of university student). September 2, 2009, available in Spanish at: http://www.fiscalia.gov.ve/Prensa/A2009/prensa0209III.htm. [102] IACHR. Report on the Situation of Human Rights Defenders in the Americas, March 7, 2006, para. 50 and IACHR. Report on Terrorism and Human Rights, October 22, 2002, para. 65. [103] IACHR Report on the Situation of Human Rights Defenders in the Americas, March 7, 2006, para. 63. [104] Office of the Attorney General. Press Release. A solicitud del Ministerio Público Privado de libertad otro presunto implicado en hecho donde resultó muerto Jhonathan Rivas en El Tigre (At request of Attorney General’s Office, another suspect detained in relation to events leading to death of Jhonathan Rivas). June 25, 2009. Available in Spanish at: http://www.fiscalia.gov.ve/Prensa/A2009/prensa2506III.htm. [105] IACHR. Report on the Situation of Human Rights Defenders in the Americas, March 7, 2006, para. 50 and IACHR, Report on Terrorism and Human Rights, October 22, 2002, para. 359. [106] Information provided by the petitioners to the IACHR. Hearing on the Judicialization of Social Protest. 137th Period of Sessions, November 2, 2009. [107] Information provided by the petitioners to the IACHR. Hearing on the Judicialization of Social Protest. 137th Period of Sessions, November 2, 2009. [108] Official Gazette No. 27.725 of April 30, 1965. [109] Response of the Venezuelan State to draft Chapter IV on Venezuela, received by the IACHR on December 21, 2007, p. 47. [110] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGVE/000598 of December 19, 2009, p. 40. [111] In its observations on the present report, the State clarified that this was due to the fact that its laws establish security zones where public gatherings are not permitted. Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGVE/000598 of December 19, 2009, p. 41. [112] Information provided to the Commission by student leaders who met with the Rapporteur for Venezuela on October 30, 2009 at the Commission’s headquarters in Washington, D.C. [113] In this regard, see: IACHR. Report on the Situation of Human Rights Defenders in the Americas, March 7, 2006, paras. 55-63. [114] In its observations on the present report, the State indicated that the statistics presented to the Commission by the organizations Espacio Público and PROVEA are not reliable since they were obtained from press reports. Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGVE/000598 of December 19, 2009, p. 38. [115] Espacio Público and Provea. Manifestaciones públicas. Enero – Agosto 2009 Public demonstrations. (January-August 2009). Second Quarterly Report on Protests in Venezuela. Available in Spanish at: http://www.derechos.org.ve/proveaweb/wp-content/uploads/Manifestaciones-2do-cuatrimestre-20092.pdf. [116] Published in the Official Gazette No. 5.768 Extraordinary Issue, of April 13, 2005. [117] Published in the Official Gazette No. 37.594 of December 18, 2002. [118] Decree No. 6.092 of May 27, 2008. [119] Decree No. 5.197 of February 16, 2007. [120] Questionnaire for the analysis of the situation of human rights in Venezuela. August 13, 2009, question 49: What has been the scope of the interpretation of the norms on desacato (disrespect), defamation, injuria (insult), instigation, outrage, calumnia (slander), and criminalization of protest, established by the 2005 reforms to the Penal Code? [121] Note from the State AGEV/(no number) dated October 14, 2009. Ref.: Julio Rivas, Richard Blanco, and Workers from the Metropolitan Mayor’s Office. [122] Note from the State AGEV/(no number) dated October 14, 2009. Ref.: Julio Rivas, Richard Blanco, and Workers from the Metropolitan Mayor’s Office. [123] IACHR. Annual Report 2008. Chapter IV: Human Rights Developments in the Region. Cuba, para. 223.
[124]
PROVEA. Annual Report October 2006/September 2007: Situation of
Human Rights in Venezuela, [125] Office of the Attorney General. Press Release: Ministerio Público imputó a 53 ciudadanos aprehendidos durante manifestación en Puerto Ordaz (Attorney General’s Office charges 53 citizens apprehended during demonstration in Puerto Ordaz). Caracas, March 16, 2008. Available in Spanish at http://www.fiscalia.gov.ve/Prensa/A2008/prensamarzo2008.asp [126] Information supplied to the IACHR by petitioners. Hearing on the Situation of Institutions and the Guarantee of Human Rights in Venezuela. 133rd Period of Sessions, October 28, 2008. [127] Ricardo Martínez, Zoraida Mijares, Coromoto Zapata, Nairín Zapata, Cora Caro, Jackeline González, Ramón Suárez, René Zapata, Carmen del Zucco, Jorge Rondón, Marbella Jiménez, Nairis Escalona, Róger Jeampier, Carmen Gómez, Freddy Urbina, Ricardo Álvarez. [128] Response of COFAVIC to the questionnaire sent by the IACHR on November 10, 2008 to gather information on compliance with the recommendations in the Report on Human Rights Defenders in the Americas of 2006. [129] Office of the Attorney General. Press Release: Por el delito de obstrucción de las vías públicas Ministerio Público imputó a 17 ciudadanos aprehendidos durante manifestación en Los Teques (Attorney General’s Office charges 17 citizens apprehended during demonstration in Los Teques with crime of obstructing public roads). June 5, 2008. Available in Spanish at: http://www.fiscalia.gov.ve/Prensa/A2008/prensa0506IX.htm. [130] Response of COFAVIC to the questionnaire sent by the IACHR on November 10, 2008 to gather information on compliance with the recommendations in the Report on Human Rights Defenders in the Americas of 2006. [131] Information supplied to the IACHR by petitioners. Hearing on the Situation of Institutions and the Guarantee of Human Rights in Venezuela. 134th Period of Sessions, March 24, 2009. [132] Office of the Attorney General. Press Release: Tras protestar sin el debido permiso a las puertas de la Gobernación Ministerio Público imputó a tres estudiantes en Aragua por resistencia a la autoridad y instigación pública (Attorney General’s Office charges three students with resistance of authority and public instigation after protesting without permit outside the doors of the Office of the Governor of Aragua). February 6, 2009. Available in Spanish at: http://www.fiscalia.gov.ve/Prensa/A2009/prensa0602VI.htm. [133] Information provided by the petitioners to the IACHR. Hearing on Judcialization of Social Protest. 137th Period of Sessions, November 2, 2009. [134] Office of the Attorney General. Press Release: Privados de libertad 11 hombres por alteración de orden público en las inmediaciones del Panteón Nacional (11 men detained for alteration of public order in are of the National Pantheon). August 28, 2009. Available in Spanish at: http://www.fiscalia.gov.ve/Prensa/A2009/prensa2808IX.htm. The Commission was also informed of these events through Note from the State AGEV/(no number) dated October 14, 2009, received October 19, 2009. Ref.: Julio Rivas, Richard Blanco, and Workers from the Metropolitan Mayor’s Office. [135] Information provided by the petitioners to the IACHR. Hearing on the Judicialization of Social Protest. 137th Period of Sessions, November 2, 2009. [136] El Universal. Alertan que la GN golpeó y detuvo a 17 petroleros en Zulia (GN [National Guard] allegedly beat and detained 17 oil workers in Zulia). October 1, 2009. Available in Spanish at: http://www.eluniversal.com/2009/10/01/eco_art_alertan-que-la-gn-go_1592857.shtml. [137] The former governors of Zulia, Aragua and Yaracuy, Manuel Rosales, Didalco Bolívar, and Eduardo Lapi, respectively, as well as the former president of the Confederation of Venezuelan Workers (CTV, by its Spanish acronym), Carlos Ortega, are also in that country. [138] Office of the Attorney General. Press Release: Ministerio Público sólo persigue los hechos delictivos. Fiscal General afirmó que todos los venezolanos tienen derecho a manifestar de manera pacífica (Attorney General’s Office only prosecutes criminal acts. Attorney General affirms that all Venezuelans have the right to demonstrate peacefully). September 1, 2009. Available in Spanish at: http://www.fiscalia.gov.ve/Prensa/A2009/prensa0109.htm. Also: FGR: Detención de Prefecto de Caracas se efectuó tras orden de aprehensión solicitada por el Ministerio Público (FGR [Attorney General of the Republic]: Detention of Prefect of Caracas carried out after order for apprehension requested by Attorney General’s Office). August 27, 2009. Available in Spanish at: http://www.fiscalia.gov.ve/Prensa/A2009/prensa2708.htm. [139] Information provided personally by Julio César Castillo Rivas during a meeting with the Rapporteur for Venezuela held on October 30, 2009 at the headquarters of the Commission in Washington, D.C.. [140] Note from the State AGEV/(no number) dated October 14, 2009. Ref.: Julio Rivas, Richard Blanco, and Workers from the Metropolitan Mayor’s Office. [141] Public Communiqué of the students, dated September 29, 2009. [142] The pertinent parts of the State’s response to this request have been incorporated in several paragraphs of this section in reference to the Note from the State AGEV/(no number) dated October 14, 2009. Ref.: Julio Rivas, Richard Blanco and Workers from the Metropolitan Mayor’s Office. [143] IACHR. Annual Report 2005. Office of the Special Rapporteur for Freedom of Expression. Chapter V, para. 97. [144] El Universal, Presidente instruye a autoridades para disolver protestas estudiantiles (President instructs authorities to break up student protests). January 17, 2008. Available in Spanish at: http://www.eluniversal.com/2009/01/17/pol_ava_presidente-instruye_17A2196347.shtml. [145] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGVE/000598 of December 19, 2009, p. 43. [146] Bolivarian News Agency. FGR anunció que se solicitará el enjuiciamiento de quienes alteren la paz pública (FGR [Attorney General] announced that she will seek prosecution of those who alter public peace). August 28, 2009. Available in Spanish at: http://www.abn.info.ve/noticia.php?articulo=196611&lee=1. [147] IACHR. Preliminary Observations on the Visit to Honduras. August 21, 2009 and IACHR. Access to Justice and Social Inclusion: The Road to the Strengthening of Democracy in Bolivia. June 28, 2007, para. 415. [148] Bolivarian Republic of Venezuela. Ministry of Popular Power for Foreign Affairs. State Agent for Human Rights. Observations on the Draft Report Democracy and Human Rights in Venezuela. Note AGVE/000598 of December 19, 2009, p. 44.
[149]
IACHR.
Report on the Situation of Human
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