DEMOCRACY AND HUMAN RIGHTS IN VENEZUELA

III. INDEPENDENCE AND SEPARATION OF PUBLIC POWERS

180. The observance of rights and freedoms in a democracy requires a legal and institutional order in which laws prevail over the will of the rulers, and in which there is judicial review of the constitutionality and legality of the acts of public power, i.e., it presupposes respect for the rule of law.[151] In addition, one of the principles that define the rule of law is the separation of powers and the independence of the branches of government as an essential element in democracy.[152]

181. The State of Venezuela has said that the Constitution of the Bolivarian Republic of Venezuela provides the mechanisms necessary to ensure the independence of the branches of government. Specifically, Title IV, “Public Power,” establishes the independence of the country’s branches of government and, in the rationale section, sets forth the principle of restrictive competence, whereby those agencies that wield public power may only perform those functions expressly assigned to them by the Constitution and by law.[153]

182. In consideration of that constitutional framework, the Commission will examine whether there are sufficient guarantees in place to ensure the independence of the judiciary from other public powers in Venezuela. In addition, the Commission will assess whether the concentration of executive and legislative authority in a single branch of government, as a result of the legislative power granted to the executive branch by the National Assembly, satisfies the guarantees and constraints necessary to prevent abuses of power that could endanger the rights protected by the Convention.

A. The right to an independent judiciary

183. The Inter-American Court has emphasized that one of the main objectives of the separation of powers is to guarantee the independence of judges.[154] Clearly, one essential element in preventing abuses of power by other agencies of the state is a correctly functioning judiciary. An independent judicial branch is vital in overseeing the constitutionality of actions by other branches of government, as well as serving as the agency responsible for administering justice.

184. In recent years the IACHR has paid particular attention to the situation of the administration of justice in Venezuela, particularly through the follow-up report on its 2003 Report on Venezuela, the reports contained in Chapter IV of its Annual Reports, the hearings held during its periods of sessions, and the cases it has taken to the Inter-American Court.[155] Through these mechanisms, the Commission has expressed its concern over factors affecting the independence and impartiality of the judiciary, in particular the elevated percentages of judges and prosecutors with provisional tenure and the failure to observe certain procedures set by law and by the Constitution for their appointment and removal. The Commission has also received information on the executive branch’s alleged interference in decisions of the judiciary.

185. The Inter-American Commission has established that the guarantees necessary to ensure the correct and independent operation of the judicial branch include the mechanisms whereby judges are appointed, the stability they enjoy in their appointments, and their proper professional training. In addition, the courts must also be independent of the other branches of government—that is, free of all influence, threats, or interference, irrespective of their origin.[156]

186. Similarly, according to the jurisprudence of the Inter-American Court and of the European Court, and pursuant to the United Nations Basic Principles on the Independence of the Judiciary,[157] the following guarantees are derived from judicial independence: an adequate appointments process,[158] stability of judges in their positions,[159] and freedom from external pressure.^{^[160]} In this chapter, the Commission will deal with those three guarantees in the framework of the right to an independent judiciary.

1. Appointment process of judges and prosecutors

187. An appropriate procedure for appointing members of the judiciary, one that is transparent and that guarantees the equality of candidates, is a fundamental guarantee for judicial independence.

188. Although states can devise a range of procedures for appointing judges, the Inter-American Court has ruled that not all procedures satisfy the conditions that the Convention demands for the correct implementation of a truly independent regime.^{^[161]} In appointing members of the judiciary, the procedure must not only ensure that candidates meet professional standards and requirements, it must also guarantee equality of opportunities in access to judicial service.

189. The Commission has received information about irregularities in the appointments of judges and prosecutors, the effects of which continue to undermine the guarantees of judicial independence in Venezuela. In the following paragraphs, the Commission will analyze the provisions in force, the failure to hold open public competitions for entry into the judicial career, and the mechanisms used to regularize the situations of judges appointed on a discretionary basis, and it will examine the impact this has had on the independence of the judiciary in Venezuela.

a. Provisions for the appointment of judges

190. The Venezuelan Constitution establishes the independence of the judiciary in Article 254 and, immediately after, in Article 255, establishes that:

Appointments to judicial positions and promotions of judges shall be carried out by means of public competitions to ensure the suitability and excellence of the participants, with selection by the juries of the judicial circuits, in such a manner and on such terms as may be established by law. The appointment and swearing in of judges shall be the responsibility of the Supreme Court of Justice. Citizen participation in the process of selecting and designating judges shall be guaranteed by law. Judges shall be removed or suspended from office only through the procedures expressly provided for by law.

191. Regarding the appointment of the justices of the Supreme Court of Justice, Article 264 of the Constitution provides that:

The justices of the Supreme Court of Justice shall be elected for a single term of twelve years. The election procedure shall be determined by law. In all cases, candidates may be proposed to the Judicial Nominations Committee either on their own initiative or by organizations involved in the field of law. The Committee, after hearing the community’s views, will carry out a preliminary selection for presentation to the citizens’ branch, which shall then carry out a second pre-selection for submission to the National Assembly, which shall then make the final selection. Citizens may file objections to any of the candidates, for cause, with the Judicial Nominations Committee or the National Assembly.

192. These constitutional provisions are intended to restrict undue interference, ensure greater independence and impartiality, and allow different voices from within society to be heard in the selection of judicial authorities. However, as far back as the year 2002, the Commission expressed concern[162] about the failure to abide by those constitutional provisions. Although the Constitution provides for the existence of a “Judicial Nominations Committee” and a “Committee of the Citizens’ Branch for Evaluating Candidacies”[163] made up of, according to Article 270 of the Constitution, representatives from different sectors of society, the Supreme Court justices[164] were not nominated by those committees but by a law enacted by the National Assembly following the promulgation of the Constitution: the Special Law for the Ratification or Appointment of Officials of the Citizens’ Branch and Justices of the Supreme Court of Justice for the First Constitutional Period.”[165]

193. That Special Law ordered that the Assembly would appoint the Supreme Court justices and other authorities of the citizens’ branch, not through the Committee of the Citizens’ Branch for Evaluating Candidacies composed solely of representatives of different sectors of society as required by the Constitution, but through a “commission made up of 15 members of the National Assembly, which will serve as the Commission for Evaluating Candidacies” (Article 3), which was established by the same Special Law.

194. In this respect, in its 2003 Report on the Situation of Human Rights in Venezuela, the Commission pointed out that the constitutional mechanisms established as guarantees of independence and impartiality had not been used to appoint the ranking authorities of the judicial and citizens’ branches of government.[166]

195. Later, in 2004, the National Assembly enacted the Organic Law of the Supreme Court of Justice[167] in order to “establish the regime, organization, and functioning of the Supreme Court of Justice.”[168] According to information received by the Commission,[169] it was decided that for the passage and enactment of this piece of legislation, even though it was an organic law, the qualified majority required by Article 203 of the Constitution to sanction such laws was not necessary. Thus, the Organic Law was approved by a simple majority of the National Assembly’s deputies.

196. Article 8 of this Organic Law empowers the National Assembly to appoint Supreme Court justices by a simple majority, should four previous plenary sessions convened for the purpose have failed to attain a two-thirds majority. In addition, the text of the Law increases the size of the plenary of the Supreme Court from twenty (20) to thirty-two (32) justices, which would have enabled a change in the correlation that previously existed between those justices believed to support the government and those believed to favor the opposition.

197. The increase in the number of justices was justified by arguing a need for greater dispatch with the Supreme Court’s docket, which is paradoxical given that in his final report, the outgoing President of the Supreme Court of Justice had said that the court was completely up to date with the matters before it.[170] In any event, the increase in the number of justices does not appear to have had an effect on the speed with which the Supreme Court deals with the matters placed before it, as shown by the delays that currently affect its docket, with its chambers failing to attain an efficiency rate of 80% in the resolution of cases.[171]

198. Although it is not up to the Commission to affirm which institutions should intervene in the process of appointing judges, a matter that should be defined by each state in its constitution, the Commission has observed that in Venezuela the provisions for the appointment, removal, and suspension of justices set out in the Organic Law of the Supreme Court of Justice lacked appropriate mechanisms to keep other branches of government from undermining the court’s independence or to prevent slight circumstantial majorities from deciding on its composition without prior consultation with society through a broad, transparent debate. The IACHR warned that enabling the justices to be chosen by a simple majority of the National Assembly did away with the requirement of broad political consensus for their election.[172]

199. In accordance with the terms of the Organic Law of the Supreme Court of Justice, in December 2004, a simple majority of the National Assembly, supportive of the government’s interests, appointed 49 new justices: 17 regular members of the court, and 32 alternates. The vacancies for regular justices were due in part to the increase in their numbers from 20 to 32 ordered by the Organic Law, combined with the resignation of four justices and the retirement of another. As a result, the 49 newly-elected justices were reported to be politically sympathetic to the government.[173] Inter alia, the justice who had resolved not to prosecute the members of the Armed Forces who participated in the events of April 2002 was replaced, as were the members of the Electoral Chamber who had found in favor of the referendum to repeal the President’s mandate. The newly-appointed justices included former legislators who had belonged to the ruling party and the former president of the National Electoral Council.[174]

200. Based on the foregoing, the Commission has received information that “the changes made within the judiciary have sought the protection or support of a specific political project, not the consolidation of a transparent and independent judicial system to afford justice and due process to the Venezuelan population in general, without discrimination on social or political grounds.”[175] The Commission duly warned that the provisions of the Organic Law of the Supreme Court of Justice enabled the executive branch to manipulate the 2004 election of justices.[176]

201. The Commission notes with concern that although it urged the State to amend those clauses of the Organic Law of the Supreme Court of Justice that compromised its independence and impartiality,[177] the Law remains in force and continues to have an impact on the independence of the judiciary up to the present, in that the Supreme Court of Justice, made up of a pro-government majority, has subsequently appointed and removed hundreds of judges in the rest of the judicial system, without holding open public competitions for their selection.

b. Failure to hold open public competitions for judicial posts

202. On September 28, 2005, following the enactment of its Organic Law, the Supreme Court of Justice adopted the Rules for Evaluations and Public Competitions for Entry into and Promotion within the Judicial Career.[178] Those rules provided that such public competitions would entail two phases: completion of an initial training program, and an examination. The National School for Judges[179] is responsible for planning, overseeing, and conducting all activities relating to public competitions for entry into, promotions within, and continued service on the Supreme Court, as well as for other activities for the evaluation of judges.

203. The State has informed the Commission that the National School for Judges uses notices published in the print media to call on all parties interested in preregistration for the initial training program. Candidates must pass an admissions examination and a medical and psychological evaluation. If admitted, they study the initial training program for one year. They must later pass a final examination. Based on the results of the different phases in the competitive process, a jury draws up a merit-based list of the participants, and vacant positions are covered by the candidates who secured the top places in the competition. The other participants who were successful in the competition are placed on the list of alternate judges and are called upon in order as vacancies arise or courts are created. The State explained that this procedure was established for the selection of judges for the criminal and administrative courts as well as for the other jurisdictions: in other words, for all those aspiring to enter the judicial career.[180]

204. The Commission notes that the National School for Judges has launched a series of initial and ongoing training programs for judges. In that context, in its 2007 Annual Report, the Commission applauded the creation of an initial training program through which 3,916 applicants for judicial positions were to be assessed prior to undergoing an open public competition.[181] The Commission understands, through information published on the Web site of the National School for Judges, that the 2007-08 initial training program was carried out; however, the IACHR has no information on its specific results or on the holding of the open public competition, on the program’s impact on judicial appointments, or on whether the National School for Judges plans to continue with the program.[182] The information received by the IACHR indicates that the Rules for Evaluations and Public Competitions for Entry into and Promotion within the Judicial Career have fallen into disuse, since no competitions have been organized and all appointments since 2002 have been made without any sort of oversight or procedure.[183]

205. Indeed, reading the resolutions appointing provisional and temporary judges indicates that judicial appointments have been covered by the establishment of a permanent state of emergency. Although they cite as their grounds Articles 255 and 267 of the Constitution of the Bolivarian Republic of Venezuela and the final part of Article 20 of the Organic Law of the Supreme Court of Justice, these appointments are made in consideration of “the urgent need to cover vacancies arising in the nation’s various courts, in order to prevent the paralysis of judicial proceedings, and prior to an examination of the candidates’ relevant credentials.”[184]

206. At the same time, the resolutions appointing certain judges with the status of regular judges are generally based on Articles 267 and 269 of the Constitution, which state that the Supreme Court of Justice shall be responsible for the management, governance, and administration of the judiciary, and on Article 255 thereof, which establishes the procedures and processes for selecting and appointing the country’s judges. Thus, the resolutions solely consider “the result of the institutional evaluations conducted [and] the decision signed by the Magistrates […], members of the Sole Jury Chamber for assessing the admission of Category “A” Judges at the national level, for […]” and succinctly resolve “to appoint the legal professional […] as Regular Judge of […].” From these resolutions, however, it cannot be inferred that any public competitions were held, only institutional evaluations.

207. In turn, regarding the alleged lack of transparency in competitions for the judicial career and the violation of the rules governing them, the State has said that:

All evaluations of judges are based on three elements of appraisal: (a) academic record, postgraduate studies, diplomas, and courses during service in the judicial career; (b) performance evaluations of judges; (c) oral and written open examinations with judges of the same category, in accordance with the competition rules and public agenda. All such competitions have been held publicly, and have been announced in the press and on the Web site of the Supreme Court of Justice.[185]

The State also reported that judges were being trained in preparing for competitions, in order to demonstrate their academic and professional merit therein.[186]

208. Nevertheless, according to information received by the Commission, in 2008 and 2009 judges continued to be appointed without public competitions by the Judicial Commission, composed of the presidents or vice presidents of each of the Supreme Court’s chambers.^{^[187]} It was reported that in 2008, the Supreme Court’s Judicial Committee appointed 920 temporary judges, 350 interim judges, 172 provisional judges, and nine judges of other categories.

209. This information indicates that in 2008 alone, a total of 1,451 judges other than regular judges were appointed. Of those, 12% were provisional, 63% were temporary, and 24% were interim. Thus, not one of the 1,451 non-regular judges appointed in 2008 was appointed through the open public competition required by Article 255 of the Venezuelan Constitution. Consequently, all of those judges are freely appointed and removable.

210. Additionally, information received by the Commission emphasizes that between January and September 2009 alone, a total of 359 judges were appointed without an open public competition, including 136 temporary judges, 138 interim judges, 59 provisional judges, 2 tenured judges and 24 judges from other categories. All of these judges are freely appointed and removable.[188]

c. Regularization of the situation of judges appointed without an open
public competition

211. Regarding the regularization of the status of provisional judges, the transitory and final provisions of the Rules for Evaluations and Public Competitions for Entry into and Promotion within the Judicial Career ordered the organization of a Special Program for the Regularization of Status, which also entails an academic training program, medical and psychological assessments, performance evaluations, and examinations of knowledge.

212. According to those provisions, the competitions covered by this special program would be open solely to non-regular judges who had been serving for at least three months prior to the commencement of the Academic Training Program. Hence, through this program, all non-regular judges – such as interim, temporary,^{^[189]}or provisional judges^{^[190]}– may acquire regular status without participating in the open public competitions established for the general population.

213. Although civil society organizations have acknowledged that the number of provisional judges has fallen, which would appear to support the right of judges to stability in their positions, they explain that the reduction in the numbers was not caused by their going to the National School for Judges and participating in a competitive process. Instead, the provisional judges appointed without undergoing the competition process were given the option of being evaluated and acquiring regular status without participating in an open public competition.[191]

214. At the hearing on the situation of the Venezuelan judiciary held during its 134th period of sessions, the Commission was told that between January 2, 2008, and December 31, 2008, a total of 73 judges had acquired regular status through the Special Program for the Regularization of Status.[192] The Inter-American Court noted that under this Special Program, vacancies have been filled without affording individuals not already part of the judiciary the opportunity to compete for positions against the provisional judges already serving. Although the program does involve an assessment of suitability, the procedure grants the stability of tenure to judges who were initially appointed on a totally discretionary basis.[193]

215. Thus, regardless of the terms of the Constitution and although the competitions are regulated by the Rules for Evaluations and Public Competitions for Entry into and Promotion within the Judicial Career, as of the date of this report those provisional judges who were appointed by means of a mere review of their credentials and not through a competitive process continue to acquire the status of regular judges without participating in open public competitions.

216. Currently, the judges appointed in a discretionary fashion are the only ones to which the mechanism for acquiring regular status is being applied, and the Judicial Committee is making those appointments through resolutions that lack procedure, grounds, and justification. In addition, according to information received by the Commission, some provisional judges who took the examination were denied regular status, and were told simply that they had failed the evaluation but were not shown the results, on the grounds that they were confidential.[194] The Commission has also been told that the processes whereby provisional judges were regularized or acquired regular status were not transparent and were not carried out in strict compliance with Article 255 of the Constitution or with the Rules for Evaluations and Public Competitions for Entry into and Promotion within the Judicial Career.[195]

217. The Commission states again that calling on provisional judges to undergo individual examinations or competitions alongside other judges of the same category is not the same as holding public competitions open to all qualified individuals interested in entering the judicial career. In this regard, the Inter-American Court has ruled that:

Appointments procedures must not involve unreasonable privileges or advantages. Equality of opportunities is guaranteed through free competition, whereby all citizens who meet the requirements set in law must be able to participate in the selection processes without suffering arbitrary or unequal treatment [and all] candidates must compete in equal conditions, even against those holding positions on a provisional basis, who may not, for that reason, be afforded privileges or advantages, or disadvantages, with respect to the position that they occupy or to which they aspire. […] Therefore, restrictions that hinder or obstruct the merit-based access to service by those who do not belong to the administration or to any public agency – in other words, private citizens not in the public employ – are inadmissible.[196]

218. Finally, the IACHR has also been made aware of the Special Training Program for Regularizing the Status of Judges offered by the National School for Judges,[197] which has the following stated objectives: “(1) to strengthen ethical attitudes, moral values, and social sensitivity, through the interpretation and discussion of the meaning of legal provisions and the impact of their decisions, [and] (2) to consolidate the legal knowledge of judges without regular status, in consideration of their experience in the administration of justice.”[198] As the Commission has already said in its 2008 Annual Report, it hopes that this program will help ensure the independence and impartiality that all systems for the administration of justice must enjoy.[199]

d. Failure to hold open public competitions for appointing public prosecutors

219. In addition to the importance of appropriate mechanisms for appointing judges, the right to an independent judiciary requires that the same principles also apply to the appointment of public prosecutors. Thus, the Commission has underscored the importance of a correctly implemented prosecutorial career path on account of the essential role played by the Office of the Attorney General in criminal investigations, which implies the need to ensure the independence, impartiality, and suitability of prosecutors in order to guarantee that investigations are effective and that the risk of impunity is eliminated, particularly in cases of human rights violations.[200]

220. On this point, the State informed the Commission that:

In Venezuela, the status of prosecutors has traditionally been provisional, in that up until the 1999 Constitution, there was no provision for competitive entry into the prosecutorial career, which was instead directly dependent on the Attorney General of the Republic during each constitutional period. However, the new Organic Law of the Office of the Attorney General, which came into effect on March 13, 2007, in its Title VI and Sole Transitory Provision, regulates the general guidelines of the public competitive processes required for entry into a career with the Office of the Attorney General, in addition to setting rules governing the promotions, reclassifications, and transfers of personnel belonging to that agency.[201]

221. In addition to the Organic Law of the Office of the Attorney General, it should also be noted that the Venezuelan Constitution itself establishes, in Article 146, that posts in the public administration are career positions and that as a result, access to those positions by public officials shall be on the basis of public competitions. The Constitution also establishes that promotions will depend on scientific methods based on merit, and that transfers, suspensions, and removals will depend on performance.

222. Thus, in its 2008 Annual Report, the Commission applauded the creation of the National Prosecutors School, instituted by means of Resolution No. 263, published in the Official Gazette on April 8, 2008, which states that the school will be responsible for “providing the officers of the Attorney General’s Office with a solid academic background, ethical and moral values, competence in scientific and technological investigation and humanistic research, skills in the use of the existing body of laws, and a sense of humanity.”^{^[202]}

223. According to information sent to the Commission by the State, taken from the Annual Report of the Attorney General of the Republic for the year 2008, the National Prosecutors’ School was inaugurated in October 2008 and classes began for 117 lawyers, selected from among 1,650 legal professionals. The National School for Judges itself has acknowledged the problems of provisional judges, stating that “the provisional status of judges and the weaknesses in the education and training of judicial officers have been identified as the greatest problem facing the administration of justice over recent decades.”^{^[203]} The creation of the National Prosecutors’ School is clearly an important step forward in guaranteeing the independence and impartiality of the criminal justice system in that it ensures the suitability and integrity of its functionaries.

224. The Commission was also informed by the State that it has created a Growth Plan for the Attorney General’s Office, which identified over the period 2007-08 the existence of 669 prosecutors’ offices, of which thirty-four (34) were created during 2007, with an approximate total of 1,300 regular and assistant prosecutors.[204]

225. However, information received by the Commission indicates that not one of the 2,644 prosecutors appointed between 2004 and September 2009 was selected by means of a public competitive process and, consequently, not one held the position of a regular prosecutor.[205] In the year 2008 alone, 411 assistant interim prosecutors, 183 provisional prosecutors, 9 alternate prosecutors, 6 senior provisional prosecutors, and 22 prosecutors of other non-regular categories were appointed. It can therefore be concluded that not one of the 631 prosecutors appointed in 2008 was selected through an open competitive process or has the status of a regular prosecutor; instead, they are freely appointed and removable, which compromises their independence.

226. The situation was repeated in 2009, a year in which, according to the information received by the Commission, as of September of 2009 a total of 302 prosecutors were appointed without a public competitive process, including 209 interim prosecutors, 86 provisional prosecutors, 3 alternate prosecutors, and 4 senior prosecutors. All of these prosecutors are freely appointed and removable.[206]

227. The Commission will be attentive to the results of the operation of the National Prosecutors’ School, and in particular to the efforts made by the State to reverse the situation of all of the prosecutors in Venezuela, who have not been appointed through a public competition, as required by the Venezuelan Constitution and the international norms relating to the independence of judicial functions.

228. As the Commission has previously stated, the failure to follow the procedures prescribed in the Constitution and the law for appointing judges and prosecutors exposes these officials to possible undue pressure in the exercise of the important function they perform and thus poses a serious threat to the independence of Venezuela’s judiciary.^{^[207]} The Commission therefore hopes that the Venezuelan State strictly observes the provisions governing the appointment and promotion of judges and prosecutors, and that clear rules are set regarding their guarantees of tenure.

2. Stability of judges and prosecutors in their positions

229. In addition to an appropriate appointment procedure, the tenure of judges in their positions is an essential element in judicial independence.[208] The stability of judges and prosecutors in their positions is indispensable to guarantee their independence from political changes or changes in the government.

230. The United Nations Basic Principles on the Independence of the Judiciary stipulate that “the term of office of judges [...] shall be adequately secured by law” (Principle 11) and that “judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists” (Principle 12).

231. In the following paragraphs, the Commission will analyze the enactment of various rules that allow a high degree of subjectivity in assessing the performance of judicial officers, the establishment of disciplinary bodies lacking guarantees of impartiality, the high number of provisional judicial appointments, and the removal of judges without due process, and whether these factors have restricted the right of judges and prosecutors to enjoy stability in their positions or have made them vulnerable to political pressure and interference.

a. Provisions that allow for broad subjectivity in the removal and indefinite
suspension of judicial officers

232. Articles 264 and 265 of the Venezuelan Constitution seek to ensure the independence of Supreme Court justices by setting terms of 12 years, together with a removal procedure that requires a two-thirds vote of the National Assembly following a ruling from the citizens’ branch that a “serious offense” has been committed.

233. However, those provisions were partially amended with the enactment of the Organic Law of the Supreme Court of Justice in 2004.[209] The Organic Law upholds the constitutional requirement of a two-thirds vote of the National Assembly to remove members of the Supreme Court of Justice. At the same time, however, it creates mechanisms for removing justices that are not provided for in the Constitution and that do not require such a majority. Those mechanisms are the suspension of a member of the court pending the vote on his or her removal, and the cancellation of his or her appointment.

234. Article 23.3 of the Organic Law states that once the citizens’ branch has unanimously determined a justice’s actions to constitute a serious offense, that member of the court is to be suspended from office until the final judgment is adopted by the National Assembly.[210] The Law stipulates that the President of the National Assembly shall convene a session and submit the removal to a vote with a period of ten days. However, there are no effective mechanisms for enforcing that deadline, and the Commission has heard that justices may be suspended indefinitely if the President of the Assembly decides not to call a vote.

235. In its observations on the present report, the State clarified that this interpretation of the Organic Law of the Supreme Court of Justice is erroneous given that “the term dismissal refers to the definitive characteristic of separation from one’s position, while suspension implies a temporary and transitory element. The nullification [of the designation] is a different situation, meaning that the challenged act is the designation itself, resulting in the return of the subject to his or her status when called. As such, the only dismissal is carried out solely by a decision of two-thirds of the National Assembly.” [211]

236. In addition, the enactment of the Organic Law of the Supreme Court of Justice established grounds for the removal and suspension of justices that compromise the court’s independence.[212] In particular, the Organic Law provides for highly subjective circumstances in which justices’ appointments can be canceled, such as when a justice’s public attitude offends the majesty or prestige of the Supreme Court of Justice, of any of its chambers, or of any magistrate of the judiciary, or when a justice undermines the functioning of the Supreme Court of Justice, any of its chambers, or the judiciary.[213]

237. Similarly, the Organic Law of the Citizens’ Branch uses generic terms to define the concept of “serious offenses” whereby, pursuant to Article 265 of the Constitution, justices of the Supreme Court can be removed. These cover such categories as undermining, threatening, or harming public ethics and administrative morals; acting with grave and inexcusable ignorance of the Constitution, of statutes, and of the law; or adopting decisions that undermine or harm the interests of the nation.[214]

238. In the Commission’s view, the high level of subjectivity with which the Organic Laws of the Supreme Court of Justice and of the Citizens’ Branch allow the actions of justices to be judged undermine their right of stability in their positions and therefore affect the independence that officers of the judiciary should enjoy in their functions.

b. Disciplinary bodies’ lack of independence and impartiality

239. Along with the guarantees of stability, a regime for determining the responsibility of judges and prosecutors must be established for cases in which, by means of fair and correct proceedings, their poor performance can be determined. In that regard, in addition to the stability provisions applicable to justices of the Supreme Court, the 1999 Constitution introduced rules to guarantee the tenure of other members of the judiciary through a disciplinary regime that maintains that judges shall not be removed except for the reasons and through the procedures determined by law.

240. Article 267 of the Constitution stipulates that the Supreme Court of Justice is to create an Executive Directorate of the Magistrature for the management, governance, and administration of the judiciary and for the oversight and inspection of the nation’s courts and public defense services. The same article of the Constitution states that discipline within the judiciary shall be the responsibility of the disciplinary tribunals determined by law and that the disciplinary regime shall be organized on the basis of the Code of Ethics of Venezuelan Judges, to be enacted by the National Assembly.

241. However, the Commission observes that although the Constitution of 1999 established that the legislation referring to the Judicial System would be approved during the first year after the installation of the National Assembly, as of this time the judicial disciplinary tribunals have not been set up and the Code of Ethics of Venezuelan Judges,[215] establishing the disciplinary regime for the conduct of judges as referenced in the Constitution, was only recently passed in June of 2009.[216]

242. The Commission appreciates that the Code of Ethics has finally been approved. This Code establishes the following organs with disciplinary competence over judges: the Judicial Disciplinary Tribunal and the Judicial Disciplinary Court, which will hear and apply in the first and second instances, respectively, disciplinary proceedings for infractions of the principles and duties contained in the Code (Article 39). The Judicial Disciplinary Tribunal will be made up of three principal judges and their respective alternates (Article 41) and the Judicial Disciplinary Court will be made up of three principal judges and their respective alternates (Article 43). Candidates for judgeships both in the Judicial Disciplinary Tribunal and the Judicial Disciplinary Court shall be elected by the Judicial Electoral Colleges (Article 46); these colleges will be made up in each state and the Capital District by a representative of the judicial branch, a representative of the Attorney General’s Office, a representative of the Public Defense, a representative of the attorneys authorized to practice, as well as ten delegates of the Communal Councils legally organized by each of the federal entities in the exercise of popular sovereignty and participative and proactive democracy (Article 47).

243. The IACHR views positively that in the dispositions of the Code of Ethics due process is consecrated, as well as the principles of legality, orality, publicity, equality, impartiality, the adversarial process, judicial economy, efficiency, speed, proportionality, suitability, concentration, contiguity, aptitude, excellence, and integrity for the proceedings before the organs with disciplinary competence (Articles 3 and 37). The IACHR also considers positively that the recently-approved Code is applicable to all judges regardless of their character as permanent, temporary, occasional, interim, or provisional (Article 2).

244. At the same time, the Commission is concerned about some norms that, due to their broadness or vagueness, allow for ample discretion by the disciplinary organs that judge the conduct of judges. Among others, the Commission notes that Article 33 contemplates as causes for dismissal “lack of integrity” and “serious or repeated improper or inadequate conduct in the exercise of functions.” In the Commission’s opinion, the broadness of these concepts allows for a high degree of subjectivity in judging the conduct of judges, which could generate such uncertainty that it could compromise the necessary judicial independence.

245. Furthermore, the Commission notes that, in spite of the entry into force of the mentioned Code of Ethics, while the Judicial Disciplinary Tribunal and the Judicial Disciplinary Court have not been constituted, the Commission on Functioning and Restructuring of the Judicial System continues to exercise its powers, according to what is established in the first transitory disposition. As of the date this report was approved, the Judicial Electoral Colleges had not been formed for the election of judges for the Judicial Disciplinary Competency, nor had the National Assembly designated the respective judges and respective alternates of the Judicial Disciplinary Tribunal and the Judicial Disciplinary Court, in accordance with the first transitory disposition.

246. As a consequence, a decade later, what remains in force^{^[217]}is the Transitional Government Regime created by the Constitutional Assembly on December 29, 1999, to regulate the restructuring of the branches of government in order to allow the immediate implementation of the Constitution.

247. The decree establishing the Transitional Government Regime[218] created the Commission for the Functioning and Restructuring of the Judicial System, which has continued to exercise disciplinary authority over members of the judiciary. On September 29, 2000, the Commission for the Functioning and Restructuring of the Judicial System adopted its Rules of Procedure, whereby it is empowered to hear and decide on disciplinary proceedings against judges and to enact disciplinary regulations.[219]

248. The members of the Committee for the Functioning and Restructuring of the Judicial System were appointed by the Constitutional Assembly, and under the decree, were to remain in office until the effective functioning of the Executive Directorate of the Magistrature, the disciplinary tribunals, and the Autonomous Public Defense System, agencies established by the Constitution for the governance and administration of the judiciary. Since the decree did not stipulate grounds or a procedure for the removal of its members, the Supreme Court of Justice interpreted that their removal and appointment fell to the Constitutional Chamber and, accordingly, it has carried out removals and made new appointments without following a procedure previously established for that purpose.

249. The effect of the legislature’s failure to enact a law covering the judicial system has been that, over the past nine years, various judges and justices have been tried by the Commission for the Functioning and Restructuring of the Judicial System, which is an exceptional body without defined stability and whose members may be appointed or removed at the sole discretion of the Supreme Court of Justice. Since the members of the Commission for the Functioning and Restructuring of the Judicial System can also be freely removed, there are no due guarantees to ensure the independence of that disciplinary agency’s decisions.[220]

250. It should be recalled that on November 29, 2006, the Inter-American Commission sent the Inter-American Court an emblematic case dealing with a resolution of the Commission for the Functioning and Restructuring of the Judicial System whereby the former judges of the First Court of Administrative Disputes were dismissed on the grounds that they had committed an inexcusable miscarriage of justice by granting precautionary relief that suspended the effects of an administrative decision denying registration of a sales operation. In its judgment of August 5, 2008, the Court decided, inter alia, that the State had failed to guarantee the judges’ right to be heard by an impartial court and violated their right to be judged by an independent tribunal and therefore ordered that they be reinstated in the judiciary.[221]

251. Moreover, the Inter-American Commission is concerned that although the Inter-American Court of Human Rights has already ruled that the Commission for the Functioning and Restructuring of the Judicial System does not guarantee the right of a proceeding before an independent and impartial tribunal, and although it was created as a temporary body, it continues to operate nine years later and continues to adopt decisions regarding the removal of judges, to the extent that, according to information received by the IACHR, at present there is not one single judge who entered the judicature prior to 1999.[222]

252. In the Commission’s view, the regime of judicial tenure enshrined in the Constitution and required by the principles of international law is not upheld when the institutional mechanism regulating it is provisional and temporary, as is the case with the Commission for the Functioning and Restructuring of the Judicial System. The Inter-American Commission therefore again urges the Venezuelan State to take the steps necessary to enact the legislation governing the judicial system referred to in the Constitution.

c. Provisional status of judges

253. Another issue related to the autonomy and independence of the judiciary in Venezuela is that of the provisional status of judges. The fact that they are provisional and not regular judges means they can be easily removed when they adopt decisions that could affect government interests, which compromises the independence of the Venezuelan judicial branch. Although this was a problem in Venezuela for many years prior to the current administration, the information available to the Commission indicates that the problem of provisional judicial appointments has increased and worsened since the judicial restructuring process began with the enactment of the 1999 Constitution.

254. As noted in the section dealing with the appointment of judges and prosecutors, the Judicial Commission of the Supreme Court of Justice has been appointing provisional judges by means of special mechanisms and without holding the corresponding public competitions. Those provisional judges, as has been confirmed by the Venezuelan domestic courts themselves, can be freely appointed and removed. The possibility of their free removal affects their ability to decide on cases without fear of reprisals, particularly when the lack of tenure for provisional judges has already allowed a high number of judges to be dismissed.

255. In this regard, the Political-Administrative Chamber of the Supreme Court of Justice of Venezuela ruled in 2000 that:

Those holding a position for which they did not compete do not enjoy the right [of judicial stability] and, consequently, may be removed from the position in question under the same conditions in which they were appointed – in other words, without the competent administration being obliged to justify such dismissal under the provisions of the disciplinary regime, which is applicable, again, only to career judges, those who hold their posts by reason of a public competitive process.[223]

This position has been restated on other occasions by the Political-Administrative Chamber as well as by the Constitutional Chamber.[224]

256. Although the Commission understands that, in exceptional circumstances, it may be necessary to appoint judges on a temporary basis; such judges must not only be selected by means of an appropriate procedure, they must also enjoy a certain guarantee of tenure in their positions. The Inter-American Court has explained that “the guarantee of tenure translates, as regards provisional judges, into the requirement that they be afforded all the inherit benefits of permanence until adoption of the resolution bringing a legal end to their time of service.”[225]

257. In the same vein, the United Nations Special Rapporteur on the independence of judges and lawyers “considers that temporary or provisional judges […] must have the same guarantees as those with a life or fixed-term tenure, given that they perform judicial tasks.” The Rapporteur emphasized that the discretional dismissal of judges appointed temporarily endangers the independence of the judiciary. For this reason, he stated that these judges should only be removed through disciplinary proceedings that respect guarantees of impartiality and are carried out by an independent body.[226]

258. As regards the provisional status of these judges, the Commission wishes to cite the ruling of the Inter-American Court of Human Rights establishing that:

States are bound to ensure that provisional judges be independent and therefore must grant them some sort of stability and permanence in office, for to be provisional is not equivalent to being discretionally removable from office. […] Along the same lines, the Court considers that the fact that appointments are provisional should not modify in any manner the safeguards instituted to guarantee the good performance of the judges and to ultimately benefit the parties to a case. Also, such provisional appointments must not extend indefinitely in time, and must be subject to a condition subsequent, such as a predetermined deadline or the holding and completion of a public competitive selection process based on ability and qualifications, or of a public competitive examination, whereby a permanent replacement for the provisional judge is appointed. Provisional appointments must be an exceptional situation, rather than the rule. Thus, when provisional judges act for a long time, or the fact is that most judges are provisional, material hindrances to the independence of the judiciary are generated. This vulnerable situation of the Judiciary is compounded if no removal from office procedures respectful of the international duties of the States are in place either.[227]

259. The State has told the Commission that for the year 2009, the planned total number of positions for judges is 1,904. It also reported that in August 2009, there were 936 regular judges, 597 provisional judges, 94 alternate judges, and 269 temporary judges (appointed to cover medical leave, vacations, leaves of absence, etc). Above and beyond the Commission’s comments on the awarding of regular status to judges in Venezuela set out in the previous section, the figures provided by the State indicate that in August 2009 there were a total of 1,896 judges,[228] of whom only 936 were regular judges. That means that more than 50% of Venezuela’s judges do not enjoy tenure in their positions.

260. The Commission notes that in previous years, the proportion of provisional judges in Venezuela was as high as around 80%, and it is pleased that the percentage has fallen. However, the fact that more than half of Venezuela’s judges can be freely removed or suspended poses an obvious obstacle to the independence of the Venezuelan judiciary in that “this implies that their actions are subject to conditions, and that they cannot feel legally protected from undue interference or pressure from other parts of judiciary or from external sources.”[229]

261. At the October 2008 Hearing on the Situation of Institutionality and Human Rights Guarantees in Venezuela, the Commission was additionally told that some judges were working on a contract basis, under renewable three-month contracts.

262. In addition to its impact on the independence of judges, their provisional status has a specific effect on the Venezuelan people’s access to justice. As an example of this, the Inter-American Commission recently admitted a case involving Venezuela in which, as stated in the petitioner’s claims, the court proceedings in question had been heard by at least 50 judges over a period of four years, because of disqualifications, rotations, or removals of judges, creating a procedural delay for which the victim, who was being held in custody, could not be blamed.[230]

263. The IACHR notes with concern that the State has not yet complied with the recommendation served on it in the year 2003, in which it was urged to “immediately, and in compliance with its domestic law and its obligations under the American Convention, further and hasten the process aimed at terminating the provisional status of most of its judges, thus guaranteeing their tenure in their positions, which is a necessary conditions for ensuring judicial independence.”[231]

d. Provisional status of prosecutors

264. The problem of temporary status also affects prosecutors in Venezuela, in that all the prosecutors of the Attorney General’s Office are freely appointed and removable. As noted in the section on the appointment of judges and prosecutors, in 2008, alone 638 prosecutors were appointed without a public competition being held and without their being given regular status, consequently making them freely appointed and removable.[232]

265. The IACHR has already expressed its concern about the situation of Venezuela’s prosecutors, recalling that in addition to the possible undermining of their independence and impartiality that could arise from the constant removals and new appointments, the provisional status and resultant lack of tenure of the civil servants responsible for initiating and pursuing criminal investigations could also necessarily lead to difficulties in identifying, pursuing, and concluding specific lines of investigation as well as in meeting the procedural deadlines set for the investigation phase. Changes in investigating prosecutors have a negative impact on the pursuit of the corresponding investigations in terms of, for instance, the collection and ongoing assessment of evidence. This situation could therefore have negative repercussions on the rights of victims in criminal proceedings involving human rights violations.[233]

266. Similarly, during the inaugural ceremony of the National Prosecutors’ School on October 6, 2008, the Attorney General of the Republic, Luisa Ortega Díaz, acknowledged that:

Prosecutors whose appointments are provisional are at a disadvantage; their provisional status exposes them to the influence of pressure groups, which would undermine the constitutionality and legality of the justice system. Provisional status in the exercise of public office is contrary to Article 146 of the Constitution of the Bolivarian Republic of Venezuela, which provides that positions in government are career service posts and are won by public competition.[234]

267. The IACHR expresses its concern regarding the failure to award regular status in appointments of prosecutors and it reiterates the importance of the correct implementation of the prosecutorial career in light of the fundamental role that the Attorney General’s Office plays in conducting criminal investigations. The Commission also reiterates the importance of prosecutors enjoying the stability necessary to guarantee their independence, impartiality, and suitability, and to ensure the effectiveness of investigations conducted to eliminate impunity, particularly in cases of human rights violations.[235]

268. At the same time, the Commission will remain alert to developments in the operations of the National Prosecutors’ School and it hopes that this initiative will help address the provisional status of prosecutors and increase the professionalization of the officers of the Attorney General’s Office with a view to ensuring independence and impartiality in the performance of their duties.

e. Voided judicial appointments

269. Another issue that undermines judicial independence is the mechanism whereby judges’ appointments can be revoked, through which a significant number of them have been removed without following the terms of the Constitution and without the corresponding administrative proceedings.

270. Information received by the Commission at the October 2008 Hearing on the Situation of Institutionality and Human Rights Guarantees in Venezuela indicates that in the year 2008, the Judicial Commission of the Venezuelan Supreme Court of Justice carried out 64 removals and suspensions of judges, broken down as follows:

Category	Suspended	Appointment Voided	Total
Regular Judges	9	0	9
Interim Judges	0	13	13
Provisional Judges	0	5	5
Temporary Judges	1	5	6
Special Alternate Judges	0	5	5
Category Undetermined	10	16	26
Total	20	44	64

271. In a more recent hearing,[236] the Commission was informed that between January and September of 2009, 72 judges had been removed or had their appointments nullified:

Category	Total
Regular Judges	5
Interim Judges	5
Provisional Judges	13
Temporary Judges	8
Category Undetermined	41
Total	72

272. In connection with this, the State of Venezuela maintained that:

All removals of serving judges have respected due process and the right of defense and, consequently, the need for administrative dismissal proceedings, which have been enjoyed as a constitutional right in all cases involving removal; thus, far from being an arbitrary act […] it is an action in which the rule of law is fully exercised and the ethical and moral principles enshrined in the Constitution are observed; in which there are also a series of guarantees provided for in law that have been fully observed by the agencies of the State with competence in the matter.[237]

The State added that judgments have been handed down in cases in which judges appealed against the decision to remove them from their position and in which the appeals courts upheld their claims. In the State’s view, this shows that proper procedures and remedies exist for cases involving the removal of judges.

273. Nevertheless, as the Commission was told at the October 2008 Hearing on Institutionality and Human Rights Guarantees in Venezuela, the appointments of various judges are being “voided” by means of resolutions that have been described as telegraphic, without grounds, rationale, procedure, or appeal.[238]

274. The Commission has seen the resolutions whereby it was decided to void the appointments of certain judges. After examining those resolutions, the Commission notes that several of them merely state something along the lines of the following:

[…] In exercise of the powers granted by Article 267 of the Constitution of the Bolivarian Republic of Venezuela, this Supreme Court of Justice, through its Judicial Commission, created by the Regulations on the Management, Governance, and Administration of the Judiciary adopted by its Plenary Chamber on August 2, 2000, and published in Official Gazette of the Republic No. 37.014 on the 15th of that same month and year, applying the provisions contained in the final part of Article 20 of the Organic Law of the Supreme Court of Justice, resolves: To void the appointment of […] to the position of […] Judge of the […] Court. For communication and publication.

275. In general, these resolutions do not set out the grounds for voiding the appointments, nor do they indicate that the decisions were taken through administrative proceedings in which the judges were given the possibility of defending themselves.

276. The IACHR observes that the United Nations Special Rapporteur on the independence of judges and lawyers has also expressed concern “with regard to the Judicial Committee [sic] of the Supreme Court of Venezuela which can remove judges at its discretion without neither [sic] a justified cause nor disciplinary proceedings guaranteeing the fairness of the dismissal.” In this respect, he stated that the Human Rights Committee highlighted the importance of the existence of an independent body or mechanism charged with the imposition of disciplinary measures against judges. He also pointed out that the proceedings before this body must observe due process guarantees and the principle of impartiality. He added that, independently of the type of disciplinary body, it is of crucial importance that the decision of this body be subject to independent review and that, in the cases of removal by political bodies, it is even more important that this decision be subject to judicial review.[239]

277. In the same line, taking into account that more than half of Venezuela’s judges do not enjoy tenure in their positions, the Commission is concerned at this voiding of the appointments of non-regular judges without a clear procedure and without the resolutions specifying the reasons why the appointments are being canceled. Additionally, the IACHR considers extremely troublesome information received indicating that the Judicial Commission of the Supreme Court of Justice is also dismissing tenured judges.[240] This is the case of Judge Fanny Yasmina Becerra Casanova, who, since February 8, 2009, served as Tenured Judge of the First Tribunal of First Instance in Functions of Judgment in Táchira[241] and, among others, was in charge of the proceedings against journalist Gustavo Azócar Alcalá, which the Commission will make reference to in the section on freedom of expression. In spite of being a tenured judge, Judge Becerra, according to what was reported to the IACHR, was dismissed on September 1, 2009 by the Judicial Commission, a week before the end of the public trial. The first decision made by the judge who replaced her was to nullify the entire proceeding.

278. As the IACHR has stated on previous occasions, the consolidation of a transparent judicial career and the resultant stability of appointments, in strict compliance with legal and constitutional procedure, are essential in guaranteeing the independence and impartiality of the judiciary and have a direct effect on strengthening access to justice.[242] The Commission repeats that all judges, including those appointed on a provisional basis, must only be removed on grounds established by law and with access to effective judicial remedies for appealing against their removal.

f. New judicial restructuring process

279. On March 18, 2009, the Plenary of the Supreme Court of Justice decided to embark on a new and comprehensive restructuring of the Venezuelan judiciary.[243] Article 6 of that resolution states that the restructuring process will last for one year, but may be extended for one additional year. The resolution is grounded on the need to “take urgent measures, without unnecessary formalism, to guarantee the thorough combating of corruption, insecurity, and impunity.”

280. The resolution states that judges and administrative personnel will be submitted to an obligatory process of “institutional evaluation” (Article 2); it authorizes the Supreme Court’s Judicial Commission to “suspend,” either with or without pay, those judges and administrative personnel who do not pass the institutional evaluation (Article 3); and it states that the resultant vacancies will be filled by the Judicial Commission (Article 4).

281. As the IACHR has been informed, this is the third restructuring of the judiciary in the past ten years: the first began with the enactment of the new Constitution; and the second, upon passage of the Organic Law of the Supreme Court of Justice. The information received by the Commission indicates that uncertainty exists regarding the contents and operation of this institutional evaluation, together with concern about how this new intervention will allow the Judicial Commission to fill the resultant vacancies without any competitive processes.[244] Additionally, the IACHR was informed that by virtue of this resolution, the Judicial Commission can dismiss even tenured judges that do not pass the evaluation, as well as appoint the judges that will replace them.[245]

282. The IACHR hopes that with this new judicial restructuring process, the Judicial Commission will work toward the consolidation of a transparent judicial career and that the right of judges to tenure in their positions will be respected, in strict compliance with the procedures established for appointing and removing judges, thereby ensuring the independence and impartiality of the work they perform.

3. Guarantees for the judiciary against external pressure

283. Interference in the administration of justice by the executive and legislative branches, parties involved in a trial, social stakeholders, or other agencies with ties to the judiciary also affects the independence of judges.

284. Since the State also has the duty of guaranteeing the image of an independent judiciary, inspiring a sense of legitimacy and confidence not only in the accused, but also among the citizens of a democratic society,[246] the Commission will address some examples of actions and statements by both judges and high-ranking public authorities that could indicate undue interference in judicial decisions by other branches of government

a. Politically-motivated removals of judges

285. The information received by the Commission in recent years yields a long list of judges who have been removed after handing down decisions that affected government interests. Although it is not the task of this report to determine whether in each specific case the removal was arbitrary and whether the judge in question should be reincorporated into the judiciary, the Commission will refer to certain cases in which, in light of the available public information, there is evidence of political interference in the decision to remove a judge.

286. Among others, there is the case of Judge Mercedes Chocrón Chocrón, who was removed from her position as judge of the Fortieth Control Court of Caracas by an administrative decision of the Supreme Court’s Judicial Commission. Her removal took place on February 3, 2003, one week after she had conducted a judicial inspection of the home of Gen. Carlos Alfonso Martínez, a dissident member of the armed forces, to determine whether the State was complying with the precautionary measures extended by the IACHR.[247] In relation to these facts, the Commission adopted a merits report in accordance with Article 50 of the American Convention, in which it concluded that the State was responsible for the violation of rights consecrated in the Convention. Considering that the State had not adopted measures to comply with the recommendations contained in the merits report, on November 25, 2009, the IACHR presented an application to the Inter-American Court stating that Judge Mercedes Chocrón Chocrón was arbitrarily dismissed from her position, without the minimum guarantees of due process, without an adequate reason, without the possibility to be heard and to exercise her right to defense, and without having had an effective judicial remedy.

287. There is also the case of judges Miguel Luna, Petra Jiménez, and María Trastoy, three members of a court of criminal appeals who were removed one day after releasing a number of citizens arrested for allegedly participating in the antigovernment demonstrations of February 27, 2004. During those demonstrations, which involved violent clashes with government forces, hundreds of people were detained. The judges Miguel Luna, Petra Jiménez, and María Trastoy received requests for court orders to prolong their pretrial arrest; however, they resolved that the Attorney General’s Office had not presented sufficient evidence to justify their continued custody, and so ordered their immediate and unconditional release. Immediately afterwards, on March 2, 2004, the three judges were dismissed by a resolution of the Supreme Court’s Judicial Commission that failed to cite the reasons for their removal.[248]

288. Also noteworthy is the case of Justice Franklin Arrieche, who was dismissed by the National Assembly on June 15, 2004. Public statements made by members of the National Assembly indicate that Justice Arrieche was removed was because he had drafted the judgment of August 14, 2002, that acquitted four members of the Armed Forces accused of insurrection in the events of April 11 to 13, 2002.[249]

289. Also of relevance are the statements made by the President of the Republic of Venezuela regarding the First Court of Administrative Disputes prior to the removal of that court’s judges.[250] The First Court had handed down a judgment^{^[251]}in a case related to the Barrio Adentro Mission, ordering that foreign doctors working on the Mission without having revalidated their qualifications be replaced by Venezuelan physicians or by foreigners who met the terms of the Law on the Practice of Medicine.

290. Immediately, during his weekly Aló Presidente broadcast, the President criticized the Court’s decision and called for it to be disregarded, saying:

Do you believe that the Venezuelan people are going to follow an unconstitutional decision? Well, they are not. What kind of court could order the death of the poor, […] the court of injustice, […] and, even so, I repeat, there is a lot of excess fabric to be trimmed in the judicial branch, from the Supreme Court of Justice on down, down as far as the parish courts, and municipal courts; not much has been done there to transform the State, because we are still waiting the passage of the Law on the Supreme Court of Justice […] Look, I am not telling you what feelings this Court arouses in me, the three of them, because there are two dissenting votes, the three judges who should not be judges, I am not telling you about those feelings because we are talking to a nation. […] But the people are telling them: you know where you can go with your decision. […] You can comply with it in your homes, if you wish. […] Yesterday another 140 doctors arrived, and they are going to Sucre […].^{^[252]}

Other public authorities, including the Minister of Health and several mayors, stated they would ignore or disregard the decision of the First Court of Administrative Disputes.

291. Another case is that of Judge Juan Carlos Márquez Barroso of the Ninth Superior Court of Fiscal Disputes, who was informed of his removal in a telephone call from the President of the Political-Administrative Chamber on June 3, 2005, after he overturned a resolution of the National Telecommunications Commission imposing a large fine on Globovisión, a television channel that the government has referred to as its enemy.[253] Later, the Constitutional Chamber ordered his reincorporation on a precautionary basis in a ruling dated June 10, 2005.[254]

292. In another case, the Supreme Court’s Judicial Commission voided the appointment of María Mercedes Prado as the Twenty-second Trial Judge as she was about to order the conditional release of one of the persons accused of the attacks on the Spanish and Colombian embassies on the grounds that the detainees had been held in custody for more than two years.[255]

293. In February 2005, Mónica Fernández, judge of the Second Trial Court of the Caracas Metropolitan Area Judicial District Criminal Circuit, was also suspended. She was responsible for judicial oversight of the warrant to search the home of Ramón Rodríguez Chacín, a former Minister of the Interior and Justice, and his subsequent imprisonment, during the events of April 2002. Because of that, she was charged with criminal offenses by the Attorney General’s Office and later suspended without pay.[256]

294. One of the most recent cases took place in July 2009, with the removal of Alicia Torres, a provisional judge with the Thirteenth Criminal Control Court of the Caracas Metropolitan Area. Judge Torres’s removal occurred two days after she claimed she had been harassed by the presiding judge of the Criminal Circuit of Caracas, urging her to order an injunction against Globovisión President Guillermo Zuloaga Núñez and his son.

295. The Commission has been given access to a recording of the telephone call that Judge Alicia Torres received from the head of the Metropolitan Area Judicial Circuit, Venicce Blanco.[257] The recording appears to indicate that the head of the Metropolitan Area Judicial Circuit asked Judge Torres to resign if she would not sign the order. In response, Judge Torres stated that she could not sign an order that she did not have. Judge Alicia Torres also publicly alleged that she was forced to sign the injunction papers without previously having issued any judgment on which to base them. Judge Torres was dismissed by the Supreme Court’s Judicial Commission, without following any procedure or being given any justification. Her removal from office was even criticized by the then-United Nations Rapporteur on the independence of judges and lawyers, Leandro Despouy.[258]

296. Also, on August 11 2009, the Judicial Commission agreed to suspend Judge Elías Álvarez without pay. Álvarez was a tenured judge in charge of the First Instance Court of the Criminal Circuit belonging to the Caracas’ Metropolitan Jurisdiction and he presided over the Súmate case and more recently granted bail to the former Chairman of the Industrial Bank of Venezuela, who is currently being investigated for alleged acts of corruption.

297. The situation of the 31^st Control Judge of the Caracas Metropolitan Area, María Lourdes Afiuni Mora, also caught the attention of the Commission. According to what was reported to the IACHR, on Thursday, December 10, 2009, Judge Afiuni held a preliminary hearing in the case against the citizen Eligio Cedeño, who at that time had been deprived of his liberty for more than two years, the maximum period of preventive detention allowed by the Organic Code of Criminal Procedure. The detention of Eligio Cedeño was declared arbitrary by the UN Working Group on Arbitrary Detention on September 1, 2009, citing violations of the right to a fair trial. In the aforementioned hearing, the judge decided to substitute the detention measure against Cedeño with judgment in liberty, with the following requirements: (a) prohibition on leaving the country; (b) presentation before the court every 15 days; and (c) retention of his passport. Hours later, officials from the National Office for Intelligence and Prevention Services (DISIP, by its Spanish acronym) raided the headquarters of the 31st Court of Control, arresting Judge María Lourdes Afiuni Mora and the marshals Rafael Rondón and Carlos Lotuffo.

298. The next day, during a national blanket radio and television broadcast, the President of the Republic, Hugo Chávez, characterized Judge Afiuni as an “outlaw” and stated:

I call for toughness against this judge, I even told the president of the Supreme Court [of Justice, Luisa Estela Morales], and I tell the National Assembly: a law must be passed because a judge who frees an outlaw is much worse than the outlaw himself. It is infinitely more serious for a Republic, for a country, that an assassin, because he pays, is freed by a judge. It is more serious than an assassination; therefore, we must apply the maximum penalty against this judge and against others who do this. I call for thirty years in prison in the name of the dignity of the country.[259]

Various authorities participated in the official act transmitted in a national blanket broadcast by radio and television, including the Attorney General of the Republic.

299. A day later, according to information from the Office of the Attorney General of the Republic, “the former official was charged, by the Attorney General’s Office, on December 12, with the alleged commission of the crimes of corruption, abuse of authority, assisting evasion, and association to commit crime, as provided in the Law against Corruption, the Penal Code, and the Organic Law against Organized Crime.” The detention order was carried out based on that which is established in the Organic Code of Criminal Procedure, which prohibits judges from having direct or indirect contact with any of the parties without the presence of all. It is alleged that the hearing held on December 10 in the case against Eligio Cedeño was carried out without the presence of the Attorney General’s Office although the 50^th and 73^rd national prosecutors had justified their failure to appear before the judge.[260]

300. In relation to these facts, on December 17, 2009, the IACHR sent a request for information to the State. For their part, three United Nations Rapporteurs [261] expressed their profound concern over the arrest of Judge Afiuni, which they described as “a blow by President Hugo Chávez to the independence of judges and lawyers in the country.” The UN Rapporteurs expressed their concern about the fact that President Chávez had publicly instructed the Attorney General and the President of the Supreme Court of Justice to castigate Judge Afiuni with the maximum penalty. In this sense, they stated that “the reprisals for exercising constitutionally-guaranteed functions and the creation of a climate of fear in the judiciary and in the attorneys serves no other purpose than to undermine the rule of law and to obstruct justice.” [262]

301. Beyond the question of whether the dismissals such as the ones described in the above paragraphs could or could not have been based on legally established grounds and procedures, the fact that they occurred almost immediately after the judges in question handed down judicial decisions in cases with a major political impact, combined with the fact that the resolutions establishing the destitution do not state with clarity the causes that motivate the decision, nor do they refer to the procedure through which the decision was adopted, sends a strong signal – to society and to other judges – that the judiciary does not enjoy the freedom to adopt rulings that go against government interests and, if they do so, that they face the risk of being removed from office.

b. Statements and decisions of the judiciary that indicate an absence of
independence from the executive branch

302. In recent years, the Commission has learned of cases in which members of the judiciary have expressly stated their support for the executive, indicating the absence of independence within their branch of government. Similarly, the Commission has seen how certain shortcomings caused by the lack of judicial independence are heightened in politically-charged cases and how society’s confidence in the justice system is affected as a result.

303. One of the most eloquent indicators of this situation occurred during the opening session of the 2006 judicial period, when the robed justices and judges, in the hearings chamber of the Supreme Court of Justice, rose to their feet in the presence of the President of the Republic and began to chant one of the slogans used in political campaigns by supporters of the President of the Republic.^{^[263]}

304. Regarding this incident, the State maintains that:

Of course the entry of the President of the Republic into the hall where the judicial period was to be opened was accompanied by manifestations of praise and support for the President of the Republic, but they were proffered by the guests and the general public, and at no time by the judges and justices attending the event who, in compliance with Article 256 of the Constitution […] may not, other than by exercising their right to vote, engage in partisan political, professional association, trade union, or similar activism […].[264]

305. Similarly, the Commission has received information indicating that the President of the Supreme Court of Justice has publicly expressed her support for the executive’s revolutionary project and, in her judicial work, she has noted her pleasure at proposals made by the President of the Republic.[265] Of particular concern to the Commission is the fact that the President of the Supreme Court was a member of the Presidential Council for Constitutional Reform and subsequently heard and dismissed the appeals lodged against the proposed constitutional amendment, in spite of having formed part of that Council.

306. At the same time, a study by the PROVEA organization indicates that:

96% of the cases studied in which cases were brought directly against the actions of agencies of the State – such as the President of the Republic, the National Assembly (AN, by its Spanish acronym), the Office of the Comptroller General of the Republic (CGR, by its Spanish acronym), the National Electoral Council (CNE, by its Spanish acronym), the Attorney General of the Republic, or the Supreme Court of Justice (TSJ, by its Spanish acronym) – were declared ungrounded or received no rulings on the merits on the grounds of inadmissibility, incompetence, inapplicability, or inappropriate cause; this does not help strengthen public oversight over the exercise of power and subjectively separates the institutions from the population.[266]

Thus, by not ruling on the merits, the judiciary has neglected its role of guaranteeing the rights of the citizens vis-à-vis the actions of the other branches of government.

307. According to information received by the Commission at its hearings,[267] Venezuelan justice is marked by a pattern of procedural delays that affects, in particular, cases in which the executive branch has no special interest. In contrast, cases involving executive interests or persons allied with the government are resolved with the utmost dispatch. According to the information received, this situation affects the judiciary at all levels, including the Supreme Court and the Attorney General’s Office. On this point, the State acknowledged at the hearing that delays existed, but stressed that the reason behind them was not political.[268]

308. Another area where the lack of independence among the branches of government can be seen is in the allocation of cases within the Attorney General’s Office. The Commission has been told that the Attorney General’s Office does not have an objective system for assigning cases, and that matters are cherry-picked. As proof of this it is claimed that in spite of there being more than 1,000 prosecutors at the national level, all investigations related to the interests of the ruling party and the executive branch are handled by a small group of prosecutors. It is further claimed that several of these prosecutors have been challenged by the accused in various cases, but that the Attorney General has not upheld any of those challenges.[269]

c. Restrictions on the scope of international human rights judgments

309. The State has maintained[270] that one example of the separation of powers and of the independence of the judiciary in Venezuela is the judgment handed down by the Supreme Court’s Constitutional Chamber requesting the State to denounce the American Convention on Human Rights. In connection with this, the State indicated that the executive was still studying the reply sought from it by the judiciary, and that this evidenced the total independence existing between the two branches of government.

310. The judgment referred to by the State is Decision 1939 of the Constitutional Chamber of the Supreme Court of Justice,[271] handed down on December 18, 2008, in which it ruled on the inexecutability of the judgment of the Inter-American Court of Human Rights in the case of Apitz Barbera et al. (First Court of Administrative Disputes) v. Venezuela[272] and, “in accordance with the terms of Article 78 of the American Convention on Human Rights, […] it asks the executive branch to proceed to denounce this Treaty or Convention, given the apparent usurpation of powers by the Inter-American Court of Human Rights in the judgment in question.”

311. In the decision, the Constitutional Chamber held that:

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

312. In its ruling of December 18, 2008, the Supreme Court applied the “constitutional green light” principle referred to in another of its judgments in 2003. On that occasion, the Supreme Court resolved to establish a mechanism for the constitutional control of international judgments, in the following terms:

Since international society as a system of sovereign states lacks a central, omnicompetent jurisdictional body, the decisions of the existing international judicial agencies, be they institutional or of an ad hoc (arbitrational) or sectoral nature, cannot, in their execution in the respondent state, ignore the national sovereignty thereof with impunity. That means that prior to their execution, such judgments must pass through the domestic judicial system so that, only if they violate no constitutional principles or provisions, they may be given a green light and their execution may proceed. Should the Constitution be undermined, it may be held that, even in this hypothetical situation, no international responsibility shall arise from the failure to execute the judgment, on the grounds that it affronts one of the existential principles of the international order, that of due respect for state sovereignty. […] Seen in those terms, no judgment, ruling, decision, or other act of a similar agency may be executed in criminal or civil law in the country if it is in breach of the Constitution; thus, provisions enshrined in human rights treaties, conventions, or pacts that contravene the Constitution or its guiding principles may not be applied in the country. […] The Chamber believes that there is no jurisdictional body above the Supreme Court of Justice and the effects of Article 7 of the Constitution, unless so indicated by the Constitution and by law; and, even in such an instance, a decision that contradicts Venezuela’s constitutional provisions shall not be applicable in the country.[273]

313. The Commission has already noted its concern regarding Judgment No. 1942, adopted by Venezuela’s Supreme Court of Justice on July 15, 2003, in that it disregards the obligatory nature of the decisions handed down by international human rights agencies, making their execution dependent on whether or not they violate the Constitution, in a determination to be made by the Constitutional Chamber of the Supreme Court of Justice itself. The Commission has stated that this judgment represents a step backward for ensuring and respecting human rights in Venezuela, noting that it deviates from the intrinsic goal of the inter-American system of human rights protection and enthrones the State itself as the final guarantor of human rights and their effective enjoyment, thereby clearly eliminating any possibility of controlling state actions in this field.[274]

314. As for Judgment No. 1939 of the Supreme Court, dated December 18, 2008, the Commission has stated that it “disregards the international obligations undertaken by Venezuela as a State Party to the American Convention.”[275]

315. The Inter-American Court has clearly ruled that states cannot invoke domestic law to avoid their international obligations,[276] explaining that this “would lead to a situation in which the Court would have the State’s Constitution as its first point of reference, and the American Convention only as a subsidiary parameter, a situation which would cause a fragmentation of the international legal order for the protection of human rights, and which would render illusory the object and purpose of the Convention.”[277] Moreover, this constitutes a principle of International Law enshrined in the Vienna Convention on the Law of Treaties. In this case, the Commission notes that the 1999 Constitution enshrines the constitutional nature of treaties and, in addition, their supra-constitutional status when their provisions are more favorable to people. However, the scope of those treaties has been limited through the judicial decisions described in the above paragraphs.

316. The Inter-American Court has said that:

The Court, like every international organ with jurisdictional functions, has the inherent authority to determine the scope of its resolutions and decisions, and compliance with them cannot be left to the mere discretion of the parties because it would render inoperative the Court’s jurisdictional role, and consequently, the human rights protection system established in the Convention.[278]

317. The ultimate purpose of the American Convention is the effective protection of human rights, and, pursuant to the obligations contracted under it, States must endow its provisions with useful effect (effet utile), which implies implementation of and compliance with the resolutions issued by its supervisory organs, either the Commission or the Court.[279] This principle is enshrined in the Venezuelan Constitution itself, Article 31 of which provides that the State shall adopt, in accordance with the procedures established under the Constitution and by law, such measures as may be necessary to enforce decisions emanating from international organs created to receive petitions or complaints involving human rights.

318. In spite of this, the Supreme Court of Justice has maintained that all international judgments and rulings may be subject to constitutional control if their execution in Venezuela is sought. The Commission notes that each state has autonomy to decide or interpret, through its competent bodies, what is the rank of international treaties in its domestic legislation. Nevertheless, the position of domestic tribunals with respect to the place occupied by international treaties in the domestic constitutional order does not free the state of its international obligation to comply fully with international human rights treaties, an obligation that was assumed freely, nor does it exempt it from complying with the decisions of human rights bodies of the system to which it has submitted itself voluntarily. In this respect, the IACHR highlights that the ratification of an international treaty is a self-limitation on the sovereignty of the states, and thus sovereignty cannot be invoked to avoid international obligations on human rights matters.

319. Taking into account the Commission’s analyzes regarding the judiciary in Venezuela, in particular with respect to the appointment of judges and prosecutors, their stability in those positions, and the absence of guarantees to protect the judiciary against pressure from other branches of government, the Commission calls upon the State of Venezuela to adopt all necessary measures to meet its obligation of ensuring the right to an independent judiciary, as established in Article 8.1 of the American Convention on Human Rights.

B. The delegation of legislative powers to the executive branch

320. In addition to the right of access to independent and impartial judicial authorities to ensure respect for basic rights, the separation of powers as a guarantee of the rule of law also demands an effective and not merely formal separation between the executive and legislative branches. In the information it has received, the Inter-American Commission has been called upon to monitor the Venezuelan National Assembly’s delegation of legislative power to the President of the Republic.

321. It should be noted that the possibility that bodies democratically-elected to create laws delegate this power to the executive branch is not in and of itself a violation of the separation of powers or the democratic state, so long as it does not generate unreasonable restrictions or deprive human rights of their meaning.

322. With certainty, in a democratic society, the principle of legality is inseparably linked to that of legitimacy as it relates to the effective exercise of representative democracy, which results, inter alia, in the popular election of law-making bodies, respect for minority participation, and the furtherance of the general good. The foregoing does not necessarily negate the possibility of legislative authority being delegated, “provided that such delegations are authorized by the Constitution, are exercised within the limits imposed by the Constitution and the delegating law, and that the exercise of the power delegated is subject to effective controls, so that it does not impair nor can it be used to impair the fundamental nature of the rights and freedoms protected by the Convention.”[280]

323. Although the State has said that “it does not accept the Commission interfering in and making statements about the inherent powers of the executive branch, represented by the President of the Republic, and of the legislative branch, represented by the National Assembly in full exercise of its power to enact enabling laws, pursuant to the Constitution of the Bolivarian Republic of Venezuela,”[281] the Commission will analyze the information it has received about the delegation of legislative power under the terms of the American Convention, bearing in mind the importance of the rule of law for the effective protection of human rights and taking into account the limits that the Inter-American Court has set for the exercise of legislative authority by the executive branch set out in the previous paragraph.

324. Regarding the need for the delegation of legislative power to be authorized by the Constitution and to be exercised within the constraints set by both the Constitution and the delegating law, the Commission notes that the possibility of delegating legislative authority to the executive is provided for by Article 203 of the Venezuelan Constitution in the following terms: “Enabling laws are those enacted by a three-fifths vote of the members of the National Assembly to establish the guidelines, purposes, and framework for matters that are being delegated to the President of the Republic, with the rank and force of a law. Enabling laws must stipulate the duration of their exercise.”

325. The current government of Venezuela has exercised legislative powers on three occasions. President Chávez asked the now-extinct Congress of the Republic of Venezuela for the first enabling law in 1999, and he was given the authority to legislate on economic and sectoral matters for a period of six months. Under that enabling legislation, the President enacted 54 decree-laws. In the year 2000, following the promulgation of the new Constitution, the executive branch was empowered to legislate in the following areas: financial, economic, and social matters; infrastructure, transportation, and services; public and legal security; science and technology; and the organization and functioning of the State. Under this authority, the executive branch enacted 49 laws in 12 months.

326. More recently, on January 31, 2007, the National Assembly granted the President of the Republic, for a period of 18 months, the authority to issue decrees with the scope, effect, and force of law in eleven areas: transformation of state institutions; popular participation; essential values in the performance of public duties; economic and social affairs; finance and taxation; public and legal security; science and technology; territorial organization; security and defense; infrastructure, transportation, and services; and energy.[282] On the last day the enabling law was in force, the President of the Republic issued 26 decree-laws.[283]

327. According to a report by the Parliamentary Observatory linked to the Citizen Identity Movement and published in September 2009, President Hugo Chávez Frías in his ten years of government has issued 167 decree-laws, with the widest scope of application in the history of Venezuela. By way of contrast, between 1961 and 1998, 172 decree-laws were adopted in Venezuela. Pursuant to that report, between 2007 and 2008 the President adopted 67 decree-laws while the legislative power, in the same period, only approved a total of 25 laws. Additionally, the report indicates that 73% of the laws passed between 2007 and 2008 were drafted by the executive branch and 27% by the legislative branch. According to this organization, these figures reveal that the National Assembly seems to have put aside its legislative function.[284]

328. The Commission also received information claiming that the National Assembly granted the President of the Republic legislative power in terms that were too broad or imprecise, for an excessive period of time, and on general topics.^{^[285]} This information states that Article 203 of the Constitution requires the legislature to indicate, in the Enabling Law, the guidelines, purpose, and framework of the provisions to be decreed by the executive branch, whereby the Enabling Law must not only specify the topics over which authority to legislate is given, but also provide guidance for the decree-laws.

329. In analyzing Article 203 of the Constitution in its 2003 Report on the Situation of Human Rights in Venezuela, the IACHR noted with concern that it allows legislative powers to be delegated to the President of the Republic without establishing clear and defined limits on the nature of that delegation. According to the Commission’s analysis, by tacitly allowing for the definition of, for example, criminal offenses by rulings from the executive and not by acts of the National Assembly, it contradicts the requirements of the American Convention on Human Rights in that it erodes the guaranteed “requirement of law” developed by the Inter-American system.[286]

330. On this point the Commission observes that in Venezuela certain criminal offenses have been created through delegated legislation. For example, the Decree with Rank, Value and Status of Special Law for Popular Defense Against Stockpiling, Speculation, Boycott and any other Conduct that Affects the Consumer of Foods and Products Subject to Price Control[287] contemplates the offenses of stockpiling, speculation, wrongful price changing, smuggling, and boycott and establishes penalties that go from fines to six years’ imprisonment, as well as the inability to run a business for a period of up to ten years. The Commission considers that the establishment of criminal sanctions via a decree-law contradicts the guarantee of legality and, therefore, it is contrary to the American Convention on Human Rights.

331. In that regard, the Commission notes that in principle, the decree-laws issued by the President of the Republic do not contradict the terms of the Venezuelan Constitution or the corresponding Enabling Law. However, both the constitutional provision and the delegating law fail to set the limits necessary for the existence of true control over the executive branch’s legislative power or for a mechanism to allow a balanced correlation of government power as a guarantee for the currency of human rights. By permitting legislative delegations in terms that are overly broad, and that could also refer to criminal matters, the principle of legality, necessary to impose restrictions on human rights, is affected.

332. On the other hand, the Commission has also heard statements of concern[288] noting that the 26 decrees with the scope and force of law issued by the President of the Republic on July 31, 2008, were enacted by means of a summary procedure, without any debate or prior consultation with the citizenry or other interested parties, as required by Articles 136[289] and 137[290] of the 2001 Organic Law of the National Public Administration.[291] It was also claimed that the nation’s states were not consulted on regional matters, as required by Article 206 of the Constitution.[292] Although prior consultation on these matters is not required by the Convention, it constitutes a normative advance by the Venezuelan legal system and, therefore, the Commission regrets that it has not been applied.

333. As the Inter-American Court has ruled, the protection of human rights requires that state actions affecting them in a fundamental way not be left to the discretion of the government but, rather, that they be surrounded by a set of guarantees to ensure that the inviolable attributes of the individual are not impaired. When laws are enacted by the legislature, they are invested with the assent of popular representation, and minority groups are able to express their disagreement, propose different initiatives, participate in the shaping of the political will, and influence public opinion to keep the majority from acting arbitrarily.[293] When the executive acts under powers delegated by the legislative branch, it lacks the guarantees enshrined in the legislative and displaces it from its constitutional powers, hence, it becomes necessary to establish certain limits in order to avoid an arbitrary use of power. Therefore, the Commission laments that in issuing the 26 executive decrees under the enabling legislation on July 31, 2008, the executive has failed to guarantee the necessary participation of various sectors that Venezuelan law itself demands.

334. The Commission has also been told that organic laws were enacted under the 2007 Enabling Law, while, in the opinion of certain sectors of Venezuelan society, Article 236 of the Constitution allows only the delegation of the ability to issue provisions with scope and force of law.[294] Above and beyond the interpretation given to Article 236 of the Constitution, the Commission notes that under Venezuelan law, organic laws are to be adopted by a qualified majority of the members of the National Assembly, not merely by a simple majority, to provide additional protection for pluralistic debate and to allow for minority voices to be heard. In that regard, the IACHR notes that the delegation of legislative power for ordinary laws offers the population fewer guarantees than legislative debate.

335. Finally, it is incumbent on the Commission to determine whether the delegated power is subject to effective controls, or whether it can be used to undermine the fundamental nature of the rights and freedoms protected by the Convention. In this connection, the State has explained that constitutional control over decree-laws is different for those that are organic in nature and those that are classified as ordinary laws. According to the State, organic decree-laws issued by the President of the Republic must first have their constitutionality checked by the prior control of the Supreme Court’s Constitutional Chamber, as must organic laws passed by the National Assembly, in compliance with Article 203 of the Constitution. The constitutional control of ordinary decree-laws is carried out following their publication in the Official Gazette, pursuant to Article 5.8 of the Organic Law of the Supreme Court of Justice.[295]

336. The Commission applauds the existence of constitutional control over legislative power delegated to the executive branch, and particularly the fact that organic decree-laws issued under enabling legislation must face the same constitutional control as organic laws passed by the National Assembly.

337. Nevertheless, the frequent concentration of executive and legislative functions in a single branch of government, in the absence of appropriate controls and constraints set by the Constitution and the Enabling Law, allows interference in the realm of rights and freedoms. In this sense, the IACHR reiterates what it recommended in its Report on the Situation of Human Rights in Venezuela in 2003, with respect to the need to modify Article 203 of the Constitution, in that it permits the delegation of legislative powers to the President of the Republic without establishing clear and defined limits on the content of the delegation.

338. In light of the considerations expressed in this section, the IACHR calls the State to adopt the necessary measures to adapt its legislation to the standards described here, ensuring that the Venezuelan constitutional framework, as well as the Enabling Laws issued, establish the limits and guarantees necessary to prevent the legislative delegations from permitting abuse of power by the executive.

C. Recommendations

339. To achieve an effective separation and independence of public powers, the Commission recommends:

1. To adapt the domestic law to the parameters of the Convention and adopt all necessary measures to guarantee the autonomy and independence of the different State powers, and especially to ensure that all judges enjoy the guarantees of independence and impartiality.

2. To respect constitutional mechanisms established as guarantees for independence and impartiality for the appointment of judges and prosecutors.

3. To ensure that the appointment of all judges and prosecutors is carried out through public competitions, as provided for in the Rules for Evaluations and Public Competitions for Entry into and Promotion within the Judicial Career.

4. To give strict compliance to the norms regulating the entrance and promotion of judges and prosecutors, and to guarantee their stability in the position in order to ensure their independence towards political or governmental changes.

5. To adapt, in a reasonable time frame, the domestic legislation to the contents of the American Convention, by modifying the norms and practices which consider that provisional judges can be freely removed and by adopting immediate measures to eliminate the provisional situation of the majority of judges and prosecutors in Venezuela, granting provisional judicial workers all the stability guarantees until the condition that originated their provisional status has ceased.

6. To implement an effective professional career system for judges and prosecutors, such that the entry into and promotion in those careers takes place through public competitions and the selection is based exclusively on technical criteria.

7. To adopt immediate measures to finalize the exceptional functioning of the disciplinary jurisdiction with respect to judges, ensuring that such jurisdiction complies with the American Convention and allows for the guarantee of the independence and impartiality of the judiciary.

8. To adopt the necessary measures to implement evaluations and other legal internal and external control mechanisms for the conduct and the fitness of the judicial and Attorney General’s Office authorities.

9. To eliminate from the dispositions of the Code of Ethics of the Venezuelan Judge the norms that contain causes for dismissal or suspension that are overly broad or that allow for a high degree of subjectivity and to adopt, as soon as possible, measures to constitute the disciplinary bodies referred to in this Code.

10. Modify the norms of the Organic Law of the Supreme Court of Justice in which the independence and impartiality of the judicial power is compromised.

11. Modify the norms of the Organic Law of the Supreme Court of Justice which contain highly subjective criteria for the removal and suspension of judges.

12. Modify the definition of “serious offenses” provided for in the Organic Law of the Citizen’s Branch in order to exclude from such definition those categories that are too generic or that allow for a high level of subjectivity.

13. Modify Article 203 of the Constitution, which permits the delegation of legislative faculties to the President of the Republic without establishing clear and defined limits to the content of such delegation.

14. Increase the budget assigned to the judicial power as necessary to eliminate procedural delay.

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[151] This position has been stated by the IACHR on repeated occasions. IACHR, Second Report on the Situation of Human Rights in Peru, June 2, 2000, Chapter II, para. 1; IACHR, Report on the Situation of Human Rights in Venezuela, December 23, 2003, para. 150.

[152] Organization of American States. Inter-American Democratic Charter. Adopted at the first plenary session of the OAS General Assembly, held on September 11, 2001, during the Twenty-eighth Special Period of Sessions, Article 3.

[153] State’s response to the questionnaire analyzing the situation of human rights in Venezuela, August 13, 2009, p. 9.

[154] I/A Court H.R., Case of the Constitutional Court v. Peru, Merits, Reparations, and Costs, Judgment of January 31, 2001, Series C No. 71, paragraph 73; and Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, Preliminary Objection, Merits, Reparations, and Costs, Judgment of August 5, 2008, Series C No. 182, paragraph 55.

[155] 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; and I/A Court H.R., Case of Reverón Trujillo v. Venezuela, Judgment of June 30, 2009, Series C No. 197.

[156] IACHR. Report on Terrorism and Human Rights, October 22, 2002, para. 229.

[157] Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan, Italy, August 26 to September 6, 1985, and confirmed by the General Assembly in resolutions 40/32 of November 29, 1985 and 40/146 of December 13, 1985.

[158] I/A Court H.R., Case of the Constitutional Court v. Peru. Judgment of January 31, 2001. Series C No. 71, para. 75; Case of Palamara Iribarne v. Chile. Judgment of November 22, 2005. Series C No. 135, para. 156; and Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Judgment of August 5, 2008. Series C No. 182, para. 138. European Court of Human Rights. Case of Campbell and Fell v. the United Kingdom. Judgment of June 28, 1984. Series A No. 80, paragraph 78; Case of Langborger v. Sweden. Judgment of January 22, 1989. Series A No. 155, para. 32. Principle 10 of the United Nations Basic Principles on the Independence of the Judiciary.

[159] I/A Court H.R., Case of the Constitutional Court v. Peru. Judgment of January 31, 2001. Series C No. 71, para. 75; Case of Palamara Iribarne v. Chile. Judgment of November 22, 2005. Series C No. 135, para. 156; and Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Judgment of August 5, 2008. Series C No. 182, para. 138. Principle 12 of the United Nations Basic Principles on the Independence of the Judiciary.

[160] I/A Court H.R., Case of the Constitutional Court v. Peru. Judgment of January 31, 2001. Series C No. 71, para. 75; and Case of Palamara Iribarne v. Chile, Note, paragraph 156. European Court of Human Rights, Case of Campbell and Fell v. the United Kingdom. Judgment of June 28, 1984. Series A No. 80, para. 78; Case of Langborger v. Sweden. Judgment of January 22, 1989. Series A No. 155, para. 32. Principles 2, 3, and 4 of the United Nations Basic Principles on the Independence of the Judiciary.

[161] I/A Court H.R., Case of Reverón Trujillo v. Venezuela. Judgment of June 30, 2009. Series C No. 197, para. 74.

[162] IACHR. Preliminary Observations of the Inter-American Commission on Human Rights upon Concluding its Visit to the Bolivarian Republic of Venezuela. Appendix to Press Release No. 23/02, May 10, 2002.

[163] Under Article 273 of the Constitution, the Citizens’ Branch comprises the Office of the Human Rights Ombudsman, the Office of the Attorney General, and the Office of the Comptroller General of the Republic.

[164] The same mechanism was used to appoint the Human Rights Ombudsman, the Attorney General of the Nation, and the Comptroller General of the Republic.

[165] Published in Official Gazette No. 37.077, November 14, 2000.

[166] IACHR. Report on the Situation of Human Rights in Venezuela. December 23, 2003, paras. 178 to 190.

[167] Organic Law of the Supreme Court of Justice, published in Official Gazette No. 37.942, May 20, 2004.

[168] It should be noted that prior to the enactment of the Organic Law of the Supreme Court of Justice, the Commission had expressed its “concern regarding certain provisions set forth in the draft Organic Law of the Supreme Court of Justice; these, were they to become positive law, could have a negative impact on the independence of the Venezuelan judiciary. These provisions deal with the increase in the number of Supreme Court justices; with the granting of powers to the National Assembly whereby it can increase or decrease, by an absolute majority vote, the number of judges in the different chambers of the Supreme Court; and with the empowerment of the Assembly to decree, by a simple majority vote, the revocation of Supreme Court justices’ appointments.” IACHR, Report on the Situation of Human Rights in Venezuela. December 23, 2003, para. 158.

[169] DPLF (Due Process of Law Foundation), International Commission of Jurists, and REVAPAZ (Venezuelan Network of Peace Activists), Situation of the Judiciary in Venezuela, document presented to the IACHR at the hearing of the same name held during its 134th Period of Sessions, March 24, 2009. Similarly: Civil Association for Citizen Oversight for Security, Defense, and the National Armed Forces, Informe sobre la Discriminación Política en Venezuela (2003-2007) Estudio de casos, 2007 (Report on Political Discrimination in Venezuela (2003-2007): Case Study, 2007), pp. 400-401.

[170] Venezuelan Criminal Forum (NGO), Informe que presenta la Asociación Civil Foro Penal Venezolano a tres años de su Fundación (Report presented by the Venezuelan Criminal Forum three years after its establishment), June 6, 2008, p. 42.

[171] Reported by the President of the Supreme Court of Justice, cited in: 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. 271.

[172] IACHR, Follow-up Report on Compliance by the State of Venezuela with the Recommendations made by the IACHR in its Report on the Situation of Human Rights in Venezuela (2003). Annual Report 2004, Chapter V, paras. 174 and 175.

[173] IACHR, Follow-up Report on Compliance by the State of Venezuela with the Recommendations made by the IACHR in its Report on the Situation of Human Rights in Venezuela (2003). Annual Report 2004, Chapter V, para. 180.

[174] Among other submissions, the Commission received information noting concern at the appointment, on December 14, 2004, of Luis Velázquez Alvaray as head of the Supreme Court’s Constitutional Chamber. The concern was because Velázquez Alvaray had been an active member of the ruling party and was elected to the National Assembly for the period of 2000-2005. One of his main activities in the Assembly was to draft and promote the Organic Law of the Supreme Court of Justice. In June 2004, while still a National Assembly deputy, he stated that, “among the reforms of the Venezuelan judicial system, the official sector plans a general purge of judicial positions across the entire country, which could involve the removal of 90% of current judges” (Venpress news agency, June 21, 2004. Cited in: Canova González, Antonio: La Realidad del Contencioso Administrativo Venezolano (The Reality of the Contentious Administrative Jurisdiction in Venezuela). Caracas 2009, p. 105). A few months after his appointment to the Supreme Court, he was selected to chair its Judicial Commission, which has used its powers to appoint and overturn the appointments of a number of judicial officials.

[175] DPLF (Due Process of Law Foundation), International Commission of Jurists, and REVAPAZ (Venezuelan Network of Peace Activists). Situation of the Judiciary in Venezuela, document presented to the IACHR at the hearing of the same name held during its 134th Period of Sessions, March 24, 2009.

[176] IACHR. Follow-up Report on Compliance by the State of Venezuela with the Recommendations made by the IACHR in its Report on the Situation of Human Rights in Venezuela (2003). Annual Report 2004, Chapter V, para. 180.

[177] IACHR. Follow-up Report on Compliance by the State of Venezuela with the Recommendations made by the IACHR in its Report on the Situation of Human Rights in Venezuela (2003). Annual Report 2004, Chapter V, paras. 168 and 169.

[178] Published in Official Gazette No. 38.282, September 28, 2005.

[179] The Organic Law of the Supreme Court of Justice, published on May 20, 2004, in Official Gazette No.37.942, created the National School for Judges (ENM, by its Spanish acronym) as “the training center for judges and other officers of the judiciary”.

[180] State’s response to the questionnaire analyzing the situation of human rights in Venezuela. August 13, 2009, p. 78 et seq.

[181] IACHR. Annual Report 2007. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 286.

[182] IACHR. Annual Report 2008. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 395.

[183] Venezuelan Criminal Forum (NGO). Informe que presenta la Asociación Civil Foro Penal Venezolano a tres años de su Fundación (Report presented by the Venezuelan Criminal Forum three years after its establishment). June 6, 2008, pp. 4-5.

[184] See, inter alia: Resolution No. 2008-0010 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela. Document submitted by the petitioners at the Hearing on the Situation of Institutionality and Human Rights Guarantees in Venezuela. 133rd Period of Sessions, October 28, 2008, Resoluciones del Tribunal Supremo de Justicia Venezolano, Donde se Nombran, Remueven y Suspenden Jueces: De Enero 2008 hasta Septiembre 2008 (Resolutions of the Venezuelan Supreme Court of Justice appointing, removing, and suspending judges: January 2008 to September 2008), October 28, 2008.

[185] Response of the Venezuelan State to the draft of Chapter IV, dealing with Venezuela, received by the IACHR on February 27, 2007, p. 6.

[186] Information provided by the State to the IACHR. Hearing on the Situation of the Judiciary in Venezuela. 134th Period of Sessions. March 24, 2009.

[187] DPLF (Due Process of Law Foundation), International Commission of Jurists, and REVAPAZ (Venezuelan Network of Peace Activists). Situation of the Judiciary in Venezuela. Document presented to the IACHR at the hearing of the same name held during its 134th Period of Sessions. March 24, 2009.

[188] Information provided by the petitioners to the IACHR. Hearing on democratic institutionality, parapolice groups, and prisons in Venezuela. 137th Period of Sessions, November 2, 2009. Also available on the Web page of the Supreme Court of Justice: www.tsj.gov.ve.

[189] Temporary judges are those called upon to cover the absences of judges, which may be absolute, temporary, or interim absences. (State’s response to the questionnaire analyzing the situation of human rights in Venezuela. August 13, 2009, p. 80.)

[190] Provisional judges are “officers who serve while waiting to be called to compete to regularize their status; they must in addition pass a comprehensive training process administered by the National School for Judges, an agency attached to the Supreme Court of Justice that is responsible for training candidates who aspire to enter the judicial career.” (State’s response to the questionnaire analyzing the situation of human rights in Venezuela. August 13, 2009, p. 80.)

[191] Information provided by the petitioners to the IACHR. Hearing on the situation of institutionality and human rights guarantees in Venezuela. 133rd Period of Sessions, October 28, 2008.

[192] Information provided by the petitioners to the IACHR. Hearing on the Situation of the Judiciary in Venezuela, 134th Period of Sessions, March 24, 2009.

[193] I/A Court H.R., Case of Reverón Trujillo v. Venezuela. Judgment of June 30, 2009. Series C No. 197, para. 122.

[194] Such claims were made by the individuals who requested the Hearing on the General Situation of Institutionality and Guarantees in Venezuela, held by the IACHR during its 126th Period of Sessions on October 19, 2006.

[195] IACHR. Annual Report 2006. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 162.

[196] I/A Court H.R., Case of Reverón Trujillo v. Venezuela. Judgment of June 30, 2009. Series C No. 197, para. 73.

[197] Supreme Court of Justice of Venezuela, National School for Judges. Available in Spanish at: http://enm.tsj.gov.ve/formacion/formacionPET.asp.

[198] Supreme Court of Justice of Venezuela, National School for Judges. Available in Spanish at: http://enm.tsj.gov.ve/formacion/formacionPETobjetivos.asp.

[199] IACHR, Annual Report 2008. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 396.

[200] IACHR, Access to Justice and Social Inclusion: The Road toward Strengthening Democracy in Bolivia. June 28, 2007, para. 96.

[201] Response of the Venezuelan State to the draft of Chapter IV, on Venezuela, received by the IACHR on December 21, 2007, p. 63.

[202] Press report from Radio Nacional de Venezuela, Creada Escuela Nacional de Fiscales del Ministerio Público (National Prosecutors’ School of the Attorney General’s Office Service Created), April 10, 2008. Available in Spanish at: http://www.rnv.gov.ve/noticias/index.php?act=ST&f=27&t=64989.

[203] Supreme Court of Justice of Venezuela, National School for Judges. Available in Spanish at: http://enm.tsj.gov.ve/miscelaneas/MiscelaneasSumario.asp.

[204] State’s response to the questionnaire analyzing the situation of human rights in Venezuela. August 13, 2009, p. 81.

[205] Information provided by the petitioners to the IACHR. Hearing on the Situation of the Judiciary in Venezuela. 134th Period of Sessions, March 24, 2009. Also, information provided by the petitioners to the IACHR. Hearing on Democratic Institutionality, Parapolice Groups, and Prisons in Venezuela. 137th Period of Sessions, November 2, 2009. Also available in Spanish on the Web page of the Supreme Court of Justice: www.tsj.gov.ve.

[206] Information provided by the petitioners to the IACHR. Hearing on Democratic Institutionality, Parapolice Groups, and Prisons in Venezuela. 137th Period of Sessions, November 2, 2009. Also available in Spanish on the Web page of the Supreme Court of Justice: www.tsj.gov.ve.

[207] IACHR, Annual Report 2007. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 281. IACHR, Annual Report 2008. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 393.

[208] The Inter-American Court has also ruled on this point. In this regard, see: I/A Court H.R., Case of the Constitutional Court v. Peru. Judgment of January 31, 2001. Series C No. 71, para. 75; Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Judgment of August 5, 2008. Series C No. 182, para. 138.

[209] Organic Law of the Supreme Court of Justice, published in Official Gazette No. 37.942, May 20, 2004.

[210] Article 23.3 provides: “Justices of the Supreme Court of Justice may be punished or removed from their positions, if serious offenses are committed, by the National Assembly, following a request and assessment of the offenses made by the Citizens’ Branch. Removals must be decided on by a qualified majority of two thirds (2/3) of the members of the National Assembly, after hearing the justice in question. After the Citizens’ Branch has determined that the offense is serious and has unanimously requested removal, the justice shall be suspended from his or her office until the final judgment of the National Assembly. Suspension shall also apply if the Supreme Court of Justice determines that there are grounds for prosecution; in such cases, this measure is different from the sanction of suspension provided for in the Organic Law of the Citizens’ Branch.”

[211] 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, pp. 48 and 49.

[212] IACHR, Follow-up Report on Compliance by the State of Venezuela with the Recommendations made by the IACHR in its Report on the Situation of Human Rights in Venezuela (2003). Annual Report 2004, Chapter V, para. 175.

[213] Article 23.4 of the Organic Law of the Supreme Court of Justice.

[214] Organic Law of the Citizens’ Branch, published in Official Gazette No. 37.310 of October 25, 2001. Article 11.

[215] Published in Official Gazette No. 39.326 of August 6, 2009.

[216] This legislative omission on the part of the National Assembly was even condemned by the Constitutional Chamber of the Supreme Court of Justice in Judgment No. 1048 of May 18, 2006.

[217] According to the decree that established this transitional regime, the provisions of the regime elaborated on and complemented the transitory provisions contained in the Constitution and would remain in force until the agencies provided for in the Constitution had been effectively organized and put into operation.

[218] Published in Official Gazette No. 36.857 of December 27, 1999.

[219] Regulations of the Commission for the Functioning and Restructuring of the Judicial System, published in Official Gazette No. 37.080 of November 17, 2000. Article 3.

[220] As ruled on by the Inter-American Court of Human Rights. 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, paragraph 147.

[221] 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.

[222] Canova González, Antonio. La Realidad del Contencioso Administrativo Venezolano (The Reality of the Contentious Administrative Jurisdiction in Venezuela). Caracas, 2009, p. 98.

[223] Political-Administrative Chamber of the Supreme Court of Justice of Venezuela. Judgment No. 02221 of November 28, 2000.

[224] Political-Administrative Chamber of the Supreme Court of Justice of Venezuela. Judgment No. 1798 of October 19, 2004. Constitutional Chamber of the Supreme Court of Justice. Judgments Nos. 1413, 5111, and 5116.

[225] I/A Court H.R., Case of Reverón Trujillo v. Venezuela. Judgment of June 30, 2009. Series C No. 197, para. 117.

[226] Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, to the Human Rights Council of the United Nations. A/HRC/11/41, 11th period of sessions. March 24, 2009, para. 62.

[227] I/A Court H.R., Case of Apitz Barbera et al. (“First Court of Administrative Disputes”). Judgment of August 5, 2008. Series C No. 182, para. 43.

[228] State’s response to the questionnaire analyzing the situation of human rights in Venezuela. August 13, 2009, p. 80.

[229] IACHR. Report on the Situation of Human Rights in Venezuela. December 23, 2003, para. 159.

[230] IACHR. Report on Admissibility 23/09. Petition 1133-05, Raúl José Díaz Peña. Venezuela. March 20, 2009.

[231] IACHR. Report on the Situation of Human Rights in Venezuela. December 23, 2003, para. 220, recommendation 1.

[232] Information provided by the petitioners to the IACHR. Hearing on the Situation of Institutionality and Human Rights in Venezuela. 134th Period of Sessions, March 24, 2009.

[233] IACHR. Annual Report 2006. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 167.

[234] Report by the Television Foundation of the National Assembly. Inaugurada Escuela Nacional de Fiscales (National Prosecutors’ School Inaugurated). Article dated October 6, 2008. Available in Spanish at: http://www.antv.gob.ve/m8/noticiam8.asp?id=14946.

[235] IACHR. Access to Justice and Social Inclusion: The Road toward Strengthening Democracy in Bolivia. June 28, 2007, para. 96.

[236] Information provided by the petitioners to the IACHR. Hearing on Democratic Institutionality, Parapolice Groups, and Prisons in Venezuela. 137th Period of Sessions, November 2, 2009. Also available in Spanish on the Web page of the Supreme Court of Justice: www.tsj.gov.ve.

[237] Response of the Venezuelan State to the draft of Chapter IV, on Venezuela, of the 2007 Annual Report. Document received by the IACHR on December 21, 2007, p. 57.

[238] Information provided by the petitioners to the IACHR. Hearing on the Situation of Institutionality and Human Rights Guarantees in Venezuela. 133rd Period of Sessions, October 28, 2008.

[239] Report of the Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, to the Human Rights Council of the United Nations. A/HRC/11/41, 11th period of sessions. March 24, 2009, para. 60.

[240] Information provided by the petitioners to the IACHR. Hearing on Freedom of Expression in Venezuela. 137th Period of Sessions, November 2, 2009.

[241] This follows from the information of the Supreme Court of Justice: http://cfr.tsj.gov.ve/jueces.asp?juez=1548&id=020&id2=.

[242] IACHR. Annual Report 2006. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 164. IACHR. Annual Report 2007. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 284.

[243] Supreme Court of Justice, Resolution No. 2009-0008, March 18, 2009. Available in Spanish at: http://www.tsj.gov.ve/informacion/resoluciones/sp/resolucionSP_0000888.html

[244] Information provided by the petitioners to the IACHR. Hearing on the Situation of Institutionality and Human Rights in Venezuela, 134th Period of Sessions, March 24, 2009.

[245] Information provided by the petitioners to the IACHR. Hearing on Democratic Institutionality, Parapolice Groups, and Prisons in Venezuela. 137th Period of Sessions, November 2, 2009.

[246] I/A Court H.R., Case of Herrera Ulloa v. Costa Rica. Judgment of July 2, 2004. Series C No. 107, para. 171; Case of Reverón Trujillo v. Venezuela. Judgment of June 30, 2009. Series C No. 197, para. 67.

[247] IACHR. Report on Admissibility No. 38/06. Petition 549-05. Mercedes Chocrón Chocrón, Venezuela. March 15, 2006.

[248] Human Rights Watch. Rigging the Rule of Law: Judicial Independence under Siege in Venezuela. June 16, 2004. Available at: http://www.hrw.org/es/reports/2004/06/16/manipulando-el-estado-de-derecho

[249] Speech by Deputy Francisco Ameliach during the oath-taking ceremony of 49 justices of the Supreme Court on December 15, 2004. El Universal. Listo TSJ con 32 magistrados (TSJ [Supreme Court] ready with 32 justices). December 16, 2004. See also: IACHR. Annual Report 2004. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 179.

[250] Regarding the removal of the judges of the First Court of Administrative Disputes of Venezuela, see: 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.

[251] Supreme Court of Justice, First Court of Administrative Disputes of Venezuela, Judgment No. 2727, August 21, 2003.

[252] Statement by President of the Republic Hugo Chávez Frías of August 24, 2003, on Government On-line, Aló Presidente No. 161.

[253] IACHR. Annual Report 2005. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 296.

[254] Canova González, Antonio. La Realidad del Contencioso Administrativo Venezolano (The Reality of the Contentious Administrative Jurisdiction in Venezuela). Caracas, 2009, p. 102.

[255] IACHR. Annual Report 2005. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 297.

[256] Judicial Commission of the Supreme Court of Justice. Resolution No. 2005-0027, February 15, 2005. Available in Spanish at: http://www.tsj.gov.ve/informacion/resoluciones/cj/resolucionCJ_58.htm.

[257] The recording of the conversation can be found at: http://www.eluniversal.com/2009/07/28/pol_ava_podemos-presenta-evi_28A2551763.shtml.

[258] UN Rapporteur for the independence of judges and lawyers. Press Release dated July 30, 2009.

[259] Audio recording of this speech available in Spanish at: Prensa Web of the National Radio of Venezuela. Bolivarian Government of Venezuela. Ministry of Popular Power for Communication and Information. Office of the Attorney General. “Pido 30 años de prisión para la Jueza Afiuni” (“I call for 30 years in prison for Judge Afiuni”). December 11, 2009. Available in Spanish at: http://www.rnv.gov.ve/noticias/index.php?s=b7b1132fb9cab29db08cf8c237df69da&act=ST&f=2&t=115304.

[260] Office of the Attorney General. Press Release: Ministerio Público Investiga Presuntas Amenazas contra Jueza Afiuni (Attorney General’s Office investigates alleged threats against Judge Afiuni). December 20, 2009. Available in Spanish at: http://www.fiscalia.gov.ve/Prensa/A2009/prensadiciembre2009.asp.

[261] The signing rapporteurs are the specialists in arbitrary detention, El Hadji Malick Sow; in the independence of judges and lawyers, Gabriela Carina Knaul de Albuquerque e Silva; and in the situation of human rights defenders, Margaret Sekaggya.

[262] United Nations. News Centre. Venezuelan leader violates independence of judiciary—UN rights experts. December 16, 2009. Available at: http://www.un.org/apps/news/story.asp?NewsID=33273&Cr=judges&Cr1=.

[263] DPLF (Due Process of Law Foundation), International Commission of Jurists, and REVAPAZ (Venezuelan Network of Peace Activists). Situation of the Judiciary in Venezuela. Video submitted to the IACHR at the hearing of the same name held during the 134th Period of Sessions on March 24, 2009. The slogan that can be heard on the video goes: “uh, ah, Chávez no se va” (“uh, ah, Chávez won’t go”).

[264] State’s response to the draft of Chapter IV of the Commission’s 2006 Annual Report regarding Venezuela. Note II.2.E8.D-OEA.10-142 received by the IACHR on February 26, 2007, p. 5.

[265] DPLF (Due Process of Law Foundation), International Commission of Jurists, and REVAPAZ (Venezuelan Network of Peace Activists). Situation of the Judiciary in Venezuela, document presented to the IACHR at the hearing of the same name held during its 134th Period of Sessions, March 24, 2009.

[266] 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. 263.

[267] Information provided by the petitioners to the IACHR. Hearing on the Situation of the Judiciary in Venezuela, 134th Period of Sessions, March 24, 2009.

[268] Information provided by the State to the IACHR. Hearing on the Situation of the Judiciary in Venezuela, 134th Period of Sessions, March 24, 2009.

[269] Venezuelan Criminal Forum (NGO). Informe que presenta la Asociación Civil Foro Penal Venezolano a tres años de su Fundación (Report presented by the Venezuelan Criminal Forum three years after its establishment). June 6, 2008, pp. 58-59.

[270] Information provided by the State to the IACHR. Hearing on the Situation of the Judiciary in Venezuela. 134th Period of Sessions, March 24, 2009.

[271] Supreme Court of Justice, Constitutional Chamber. Judgment of December 18, 2008, File No. 08-1572, establishing the inexecutability of the judgment of the Inter-American Court of Human Rights of August 5, 2008. Available in Spanish at http://www.tsj.gov.ve/decisiones/scon/Diciembre/1939-181208-2008-08-1572.html.

[272] I/A Court H.R., Case of Apitz Barbera et al. (“First Court of Administrative Disputes”). Judgment of August 5, 2008. Series C No. 182.

[273] Supreme Court of Justice, Judgment No. 1.942, July 15, 2003. Available in Spanish at http://www.tsj.gov.ve/decisiones/scon/Julio/1942-150703-01-0415.htm.

[274] IACHR. Report on the Situation of Human Rights in Venezuela. December 23, 2003,
paras. 209 to 211.

[275] IACHR. Annual Report 2008. Chapter IV: Human Rights Developments in the Region, para. 324.

[276] I/A Court H.R., Case of Hilaire. Preliminary Objections, Judgment of September 1, 2001. Series C No. 80, para. 82.

[277] I/A Court H.R., Case of Benjamin et al. v. Trinidad and Tobago. Preliminary Objections. Judgment of September 1, 2001. Series C No. 81, para. 84.

[278] I/A Court H.R., Decision, Provisional Measures, Luis Uzcategui with respect to Venezuela, February 20, 2003, para. 13. Also: I/A Court H.R., Case of Hilaire, Constantine, Benjamin et al. Judgment of June 21, 2002. Series C No. 94, para. 19; Case of Hilaire. Preliminary Objections. Judgment of September 1, 2001. Series C No. 80, paras. 82 and 84; Case of Benjamin et al. Preliminary Objections. Judgment of September 1, 2001. Series C No. 81, paras. 73 and 75; Case of Constantine et al. Preliminary Objections. Judgment of September 1, 2001. Series C No. 82, paras. 73 and 75; Constitutional Court Case. Competence. Judgment of September 24, 1999, Series C No. 55, para. 35; Ivcher Bronstein Case. Competence. Judgment of September 24, 1999. Series C No. 54, para. 36.

[279] I/A Court H.R., Case of the Prisons in Mendoza. Order of November 22, 2004, operative para. 16.

[280] 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, paras. 32 and 36.

[281] Response of the Venezuelan State to the draft of Chapter IV, dealing with Venezuela, received by the IACHR on February 6, 2009, p. 21.

[282] Law Authorizing the President of the Republic to Enact Decrees with the Scope, Effect, and Force of Law in the Areas Indicated. Published in Official Gazette No. 38.617 of February 1, 2007.

[283] The 26 legal instruments decreed by President Hugo Chávez, under the enabling law, with the scope, effect, and force of law, published in Official Gazette No. 38.984, were: 1. Organic Law of the Bolivarian National Armed Forces; 2. Organic Tourism Law; 3. Organic Law of Aquatic Spaces; 4. National Railroad Transportation Law; 5. Law on the Channeling and Maintenance of Navigation Routes; 6. Organic Law of Agro-alimentary Security and Sovereignty; 7. Comprehensive Agricultural Health Law; 8. Agrarian Sector Credit Law; 9. Agricultural Bank Law; 10. Law on Benefits and Facilities for Paying Agricultural Debts and Strategic Items for Food Security and Sovereignty; 11. Law for the Defense of People in Access to Goods and Services; 12. Law Amending the Law of the National Housing Institute (Inavi); 13. Law Restructuring the National Housing Institute (Inavi); 14. Law of the Benefits Regime for Housing and Habitat; 15. Partial Amendment of the Social Security Law; 16. Law Partially Amending the Organic Law of the Social Security System; 17. Organic Law of the Public Administration; 18. Organic Law for the Simplification of Administrative Procedures; 19. Law Creating the Social Fund for Securing and Allocating Surplus Resources from Agencies of the National Public Administration; 20. Law Amending the Organic Law of the Financial Administration of the Public Sector; 21. Partial Amendment of the Organic Law of Office of the Attorney General of the Republic; 22. Law Terminating and Liquidating the Industrial Credit Fund (Foncrei); 23. Law on the Economic and Social Development Bank of Venezuela (Bandes); 24. Partial Amendment of the General Law of Banks and Other Institutions; 25. Law for the Promotion and Development of Small and Medium-sized Industry and Other Social Production Units; 26. Law for the Promotion and Development of the Popular Economy.

[284] Report of the Parliamentary Observatory of the Citizen Identity Movement. Gathered by the press. El Universal. Señalan al Legislativo de propiciar el abuso de poder (Legislature accused of facilitating abuse of power). September 16, 2009. Available in Spanish at: http://www.eluniversal.com/2009/09/16/pol_art_senalan-al-legislati_1573078.shtml. El Nacional. Denuncian que la AN permite abusos de poder del Presidente (AN [National Assembly] accused of permitting abuse of power by the President). September 16, 2009. Available in Spanish at: http://www.el-nacional.com/www/site/p_contenido.php?q=nodo/99417/Nacional/Denuncian-que-la-AN-permite-abusos-de-poder-del-Presidente.

[285] Information provided by the petitioners. IACHR. Hearing on the Situation of Institutionality, Guarantees, and Defense of Human Rights in Venezuela, held on March 7, 2007, during its 127th Period of Sessions.

[286] IACHR. Report on the Situation of Human Rights in Venezuela. December 23, 2003, para. 57.

[287] Decree No. 5.197 of February 16, 2007, published in Official Gazette No. 38.628.

[288] Press release by Forum for Life, available in Spanish at: http://www.ucab.edu.ve/tl_files/CDH/recursos/decretos_leyes.pdf. The communiqué is signed by the following Venezuelan nongovernmental organizations: Venezuelan Prisons Observatory; Cofavic; Provea; Secorve; Human Rights Foundation of Anzoátegui; Vicariate of Human Rights of Caracas; Jesuit Refugee Service; Espacio Público; Caritas Los Teques; Caritas Venezuela; Human Rights Center of Andrés Bello Catholic University.

[289] Article 136: “When a public organ or entity, acting in its regulatory role, proposes the adoption of a law, regulation, or other legal provision, it shall forward the preliminary draft text to the organized communities and non-state public organizations listed in the register named in the preceding article for consultation. The memorandum transmitting the preliminary draft shall specify the period of time within which observations must be received in writing; that time period will not begin until ten working days after the delivery of the corresponding preliminary draft. At the same time, the corresponding public organ or entity shall announce in the national press that the consultation process is underway and shall indicate its duration. It shall also enter this announcement on its Internet page, where it will publish the document(s) under discussion. During the consultation process, any person may submit his or her written observations and comments on the corresponding preliminary draft, without requiring their inclusion in the register to which the preceding article refers. Once the observations have been received, the public organ or entity shall set a date on which its staff specialists will meet with the organized communities and non-state public organizations to exchange opinions, ask questions, make observations, and propose that the preliminary draft be adopted, rejected, or amended, or that a new preliminary draft be considered. The outcome of the consultation process shall not be binding. Annulment as a result of the passage of provisions not referred to consultation and the exceptions thereto.”

[290] Article 137: “A public organ or entity may not approve laws that are within its competence or forward draft regulations to any other body, unless the draft has first been referred for consultation pursuant to the preceding article. Provisions that are approved by a public organ or entity or proposed by it to some other body shall be null and void if the consultation process prescribed in this Title has not been carried out. When an emergency arises, when dictated by the State’s obligation toward public safety, security, and protection, the President of the Republic, governor, or mayor, as the case may be, may authorize passage of laws or regulations without prior consultation. In such a circumstance, the laws or provisions so approved shall be immediately referred for consultation with the organized communities and non-state public organizations; and the outcome of the consultation shall be considered by the body that approved the provision, which may ratify it, amend it, or eliminate it altogether. Obligation of informing the population about the activities, services, procedures, and organization of the public administration.”

[291] Organic Law of the Public Administration, published in Official Gazette No. 37.305 of October 17, 2001.

[292] Article 206: “Through the Legislative Council, the National Assembly shall consult with the states when legislation in matters relating to them is being considered. The law shall establish the mechanisms through which the Council is to consult with civil society and other agencies of the states in such matters.”

[293] 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. 22.

[294] Article 236 of the Venezuelan Constitution: “The following are attributions and duties of the President of the Republic: […] 8. To issue decrees having the force of law, subject to authorization in advance by an enabling act.”

[295] State’s response to the questionnaire analyzing the situation of human rights in Venezuela. August 13, 2009, pp. 10 - 11.