DEMOCRACY AND HUMAN RIGHTS IN VENEZUELA

CHAPTER V

V.        THE DEFENSE OF HUMAN RIGHTS AND THE FREEDOM OF ASSOCIATION

556.          The IACHR has indicated that the work of human rights defenders in protecting individuals and groups of individuals who are victims of human rights violations, publicly denouncing the injustices that affect large sectors of society, and pointing to the need for citizen oversight of public officials and democratic institutions, among other activities, means they play an irreplaceable role in building a solid and lasting democratic society.[465]

557.          Thus, the process of democratic strengthening in the hemisphere must incorporate full respect for the work of human rights defenders,[466] and the States must guarantee the conditions necessary for them to be able to freely conduct their activities, refraining from taking any action that would limit or obstruct their work.[467]

558.          In this chapter, the Commission will analyze the State of Venezuela's compliance with the right to freedom of association for the promotion and defense of human rights, as well as the obstacles that human rights defenders encounter in their work, including violations of the right to life, humane treatment, and personal liberty.

            A.        Association for the promotion and defense of human rights

559.          The IACHR has stressed that the States have the authority to regulate the registration, oversight, and control of organizations within their jurisdictions, including human rights organizations. Nonetheless, the right to associate freely requires that the States ensure that those legal requirements do not impede, delay, or limit the creation or functioning of these organizations.[468] Below, the Commission will analyze whether the State of Venezuela's existing legal framework and policies allow human rights organizations to freely exercise their right of association.

1.                 Registration and establishment of human rights organizations

560.          With respect to registrations required under national law to set up an organization whose purpose is the promotion and defense of human rights, and to finance its activities, the State has said that Venezuela's legal system does not have laws or rules regulating nongovernmental organizations' financing or use of funds; thus their establishment and legal and administrative operation should be in line with what the civil code[469] has established for nonprofit foundations or associations.[470]

561.          Nonetheless, the Commission has received information indicating that some civil society organizations have seen their rights to free association and participation restricted due to the obstacles and difficulties involved in registering such organizations with the competent authorities. It was indicated that some organizations have been forced to change their purpose in order to have access to registration.[471]

562.          The Commission notes with concern that, according to the information it has received, even though civil society organizations may be established by foreigners and external financing is allowed, participation by certain organizations in public affairs continues to be restricted by virtue of their financing, their members' national origin, the type of organization, or the absence of laws governing their activity.[472] These restrictions are based on judgments handed down by the Supreme Court of Justice of the Bolivarian Republic of Venezuela on June 30, 2000; August 21, 2000; and November 21, 2000.

563.          In these judgments, the Venezuelan Supreme Court stated that the representative authority of these organizations depends on the size of their membership, and they must meet the same prerequisites as political parties.[473] The Supreme Court established the following:

[...] that civil society, as considered by the Constituent Assembly, is Venezuelan civil society, wherefrom arises the principle of its general joint responsibility with the State, and its particular responsibility toward the economic, social, political, cultural, geographical, environment, and military arenas. The consequence of this national character is that its representatives may not be foreigners or bodies affiliated with, or led, subsidized, financed, or sustained, either directly or indirectly, by states or by movements or groups influenced by states; nor by cross-border or global associations, groups, or movements that pursue political or economic goals to their own benefit […].[474]

564.          With regard to these judgments, in its 2003 Report on the Situation of Human Rights in Venezuela, the Commission already noted the importance of understanding the concept of civil society in democratic terms, without unreasonable exclusions or unacceptable discrimination, such as establishing that nongovernmental organizations that receive subsidies from abroad or that have foreigners or agents of organized religions on their boards are not part of civil society and are thus ineligible to participate on the Candidacy Committees established by the Constitution for electing the members of the Citizens’ Branch, the electoral authorities, and the Supreme Court of Justice.[475]

565.          Nevertheless, the Commission has been informed that the criteria established in these judgments continue to be applied by the Executive Branch in specific cases. By way of example, it was indicated that the Department of Multilateral Affairs of the Ministry of Foreign Affairs communicated verbally with the directors of the organization Acción Solidaria contra el Sida (Solidarity and Action against AIDS) to say that "nongovernmental organizations that receive funding from foreign governments may not be included as part of the official delegation that will attend the special period of sessions of the General Assembly on issues related to HIV/AIDS. That observation is based on the decision of our Supreme Court of Justice (TSJ, by its Spanish acronym) dated November 21, 2000."[476]

566.          The IACHR recognizes the State's authority to issue reasonable regulations for the right of association in the context of a democratic society, but reiterates that the application of the restrictions established in the decisions of the Constitutional Court, if done on a discriminatory basis against independent organizations, could be exclusive in its impact, which is unacceptable for the open participation of civil society in Venezuela.[477]

567.          As the IACHR has indicated, "The freedom of association, in the specific case of human rights defenders, is a fundamental tool that makes it possible to fully carry out the work of human rights defenders, who, acting collectively, can achieve a greater impact. Because of this, when a state impedes this right, it not only restricts the freedom of association, but also obstructs the work of promoting and defending human rights."[478] Thus, any action that tends to impede the association of human rights defenders, or in any way impedes the purposes for which they have formally associated, is a direct attack on the defense of human rights.[479]

            2.         Administrative and financial controls on human rights organizations

568.          In the judgment of the Commission, the States should refrain from restricting human rights organizations' means of funding. In addition, they should allow and facilitate human rights organizations' access to foreign funds within the context of international cooperation, under conditions of transparency.

569.          Nonetheless, during the Hearing on the Situation of Human Rights Defenders in Venezuela, held on March 24, 2009, the petitioning organizations expressed their concern to the IACHR over the fact that Venezuela's Central Bank has appeared at several nongovernmental organizations in Venezuela to conduct a voluntary and random study of each NGO's financial aspects.

570.          On this point, the Commission was told that it would be hard to consider the study to be random since when NGOs met at the Forum for Life (a coalition that brings together the principal human rights organizations in Venezuela), they noticed that coincidentally all of them were included in the supposedly random study. In addition, the purpose of the survey, which included approximately 500 questions, is not at all clear to the NGOs. The questions include information about where the organizations' funds come from, how many employees they have, where the employees are from, what activities are carried out, and the purpose for which each of the funds is earmarked. The IACHR was informed that those organizations that did not cooperate with the survey were told that the information could be turned over to the tax administration service.[480]

571.          Subsequent to the hearing, at the Commission's request, the Committee of Relatives of Victims of the Events of February-March 1989 (COFAVIC, by its Spanish acronym) forwarded to the IACHR the form that had been sent to that organization by the Central Bank of Venezuela, requesting financial, accounting, labor, and operational management information from NGOs in Venezuela. The same request for information, it was reported, was made to the following human rights organizations: PROVEA, the Venezuelan Prisons Observatory, the Jesuit Refugee Service, the Support Network for Justice and Peace, Citizens' Action against AIDS (ACCSI, by its Spanish acronym), and Solidarity and Action against AIDS (ACSOL, by its Spanish acronym). As the Commission was able to observe, the request for information sent from the Central Bank is 49 pages long and asks for a detailed accounting for 2006 and 2007 of financial status, personnel employed and all their compensation, the source and target of funds received, and the organization's fixed assets, among other aspects.[481] 

572.          It is worth noting that, according to the letter sent by the Central Bank of Venezuela to COFAVIC and forwarded by that organization to the IACHR, the request for information is part of a "Survey of Nonprofit Organizations that Provide Service to Homes," and its purpose is to "estimate the accounts for production and generation of primary income, the overall creation of capital, and the gross domestic product represented by that segment of economic activity." In addition, the letter from the Central Bank underscores that "the information provided will be used exclusively for general statistical calculations, whose confidentiality is guaranteed." The Commission considers that while it is perfectly legitimate to request information from nongovernmental organizations to update the country's macroeconomic figures, the information requested would seem to exceed the limits of confidentiality that human rights organizations require to be able to operate.

573.          It should also be highlighted that the IACHR continues to be concerned[482] about the possible adoption of the International Cooperation Bill that was approved at its first debate by the National Assembly in June 2006. It also notes that various civil society organizations have expressed their concern to the State over this draft legislation. Thus, organizations such as the Forum for Life (the Venezuelan coalition of 14 human rights NGOs[483]) and the social development network SINERGIA submitted their observations on the draft legislation to the National Assembly's Foreign Policy Commission in August 2006.

574.          The IACHR has been informed that this bill has been included in the basic legislative schedule for 2009, which means it would be taken up again for discussion. In fact, the State informed the IACHR that the National Assembly, in the exercise of its constitutional functions, is in the process of debating the International Cooperation Bill. The State has emphasized that this draft legislation was submitted to public consultation, and that the National Assembly's Foreign Policy Commission established a technical committee made up of representatives of the Vice Presidency of the Republic; the Ministries of Foreign Affairs, Finance, Planning and Social Development, Education, Infrastructure, Integration and Foreign Trade, and Labor; the Office of the Prosecutor General of the Republic; and the Venezuelan Economic and Social Development Bank (Bandes). Further, according to what was indicated by the State, the bill was submitted to an open and pluralistic process and all sectors of the community were consulted through a frank, authentically participatory, and truly democratic debate among all segments of society.[484] 

575.          The State has emphasized that the referenced draft does not in any way impinge on the rights of nongovernmental organizations and their development,[485] and that the law "seeks to ensure the transparency and sound use of resources from international cooperation, based on a clear accounting that would make it possible to see how these funds and resources are channeled and to what activities they are directed."[486]

576.          Nevertheless, the IACHR reiterates its concern regarding this draft legislation, as stated in its press release of July 19, 2006, and in Chapter IV of its 2006 Annual Report, as well as in the letter it sent to the State in April 2009, making use of the authority established in Article 41 of the American Convention.

577.          Among the IACHR's main points of concern regarding the International Cooperation Bill are the vagueness of the language of some of its provisions and the broad discretion granted to the authorities in charge of regulating the law. In the judgment of the Commission, this creates the risk that this law could be interpreted in a restrictive manner to limit, among other things, the exercise of the rights of association, freedom of expression, political participation, and equality, and could seriously affect the functioning of nongovernmental organizations.

578.          Likewise, the IACHR has expressed its concern over the fact that the draft legislation under discussion establishes, among other things, that the registration of nongovernmental organizations in the "Integrated Registration System" is "mandatory and constitutes an essential condition in order to be recognized by the Venezuelan State as entities capable of carrying out cooperation activities with their counterparts in other countries." The Commission believes that this law could be interpreted to mean that only organizations accepted as part of the Integrated Registration System can conduct their activities, thus limiting the activities and funding sources of nongovernmental organizations, whose independent role is essential for the strengthening of democracy in Venezuela.

579.          The Commission emphasizes that a registration system that seeks to promote transparency does not necessarily contravene international standards. However, laws that go against those standards are those that give authorities discretionary power to authorize the establishment and operation of organizations through registration records.

580.          Taking into account that the provisions of Article 16 of the American Convention require that any restrictions to the right of association be strictly established under the law and necessary in a democratic society, the Commission reiterates to Venezuela the recommendation it made to the States in its Report on the Situation of Human Rights Defenders in the Americas, to the effect that they should "refrain from promoting laws and policies regarding the registration of human rights organizations that use vague, imprecise, and broad definitions of the legitimate motives for restricting their establishment and operation."

581.          The Commission notes that the draft legislation also contains limits on the financing of nongovernmental organizations.  In this regard, in informing about the referenced draft legislation, the State of Venezuela indicated that it "will not accept international financing of nongovernmental organizations for the purpose of using those resources to destabilize the nation and to constantly and continuously discredit Venezuela's democratic institutions."[487] According to what has been indicated by the State, one of the objectives of the International Cooperation Bill is to bring about transparency in nongovernmental organizations' management of the resources they are given by foreign organizations, based on a clear accounting that makes it possible to see how those funds and resources are channeled and to what activities they are directed. To that end, it proposes to create a decentralized international cooperation entity that would be answerable to the relevant Ministry and that would have administrative and financial autonomy. Such an entity would be in charge of raising, registering, and regulating any resources that come from abroad and the organizations that receive them.[488]  

582.          It is worth recalling that among the proposals for modifying the Constitution rejected by popular vote in December 2007 was a reform of Article 67 that sought to prohibit "the financing of associations with political goals or of those who would participate in electoral processes of their own accord with funding or resources from governments or public or private entities abroad."

583.          As the Commission has stated, the intention of the State to limit funding sources for NGOs with political goals is of particular concern considering that the State has insisted on designating human rights organizations in Venezuela as political organizations (and even coup-mongers). Thus, the provisions in the International Cooperation Bill could come to be interpreted to the effect that no human rights organization in Venezuela would be authorized to receive public funds.[489]     

584.          On this point, the Commission stresses that "human rights defenders have the right to seek and obtain economic resources to finance their work.  The states must guarantee the exercise of this right in the broadest possible manner, and promote it, for example, through tax exemptions to organizations dedicated to protecting human rights."[490] For its part, the Inter-American Court has established that the freedom of association consists not only of the authority to constitute organizations, but also "to set into motion their internal structure, activities and action programme, without any intervention by the public authorities that could limit or impair the exercise of the respective right."[491]

585.          In this regard, the IACHR considers that civil society organizations may legitimately receive funds from foreign or international NGOs, or from foreign governments, to promote human rights. The State is obligated to guarantee their establishment and operation without imposing restrictions beyond those allowed under the right to freedom of association enshrined in Article 16 of the American Convention on Human Rights.

586.          Finally, the IACHR notes that Article 10 of the mentioned bill contemplates the creation, by the President of the Republic, of a decentralized body of a special technical character responsible for executing and supporting the policies, plans, programs, projects, and activities for international cooperation that are promoted by the State and for exercising functions of organization, direction, control, coordination, follow-up, and evaluation of international cooperation activities in which the Venezuelan State participates. Although from the drafting of Article 10 it appears that the powers of this body would limit the government’s participation in international cooperation, in the first transitory disposition of the Bill under analysis a six-month period is established from the time of the publication of the Law during which organisms that carry out international cooperation activities can adjust to the provisions and to the guidelines issued by the decentralized body responsible for international cooperation. In this sense, the IACHR considers that this disposition could be understood to mean that nongovernmental organizations that receive international cooperation funds must subject themselves to the guidelines of this body, which depends on the ministry with competence in the matter of international cooperation, and, in the final instance, on the President. In this respect, the Commission considers it opportune to limit the scope of the decentralized body so that its powers are limited to executing and supporting the government’s international cooperation policies, but not those of civil society organizations. 

587.          In light of the abovementioned concerns, the Commission appreciates the information provided by the State indicating that, in taking up the debate again on the International Cooperation Bill in 2009, the National Assembly's Foreign Policy Commission has apparently decided to completely revise the draft legislation based on input obtained through public consultation.[492] The Commission hopes that the State will take into account the concerns noted by the Commission with regard to this draft legislation, and reiterates its offer to the State to advise it in the preparation of the law, within the scope of its powers.

            B.        Obstacles to the work of defending human rights

588.          The Commission has been informed that a climate of hostility and threats continues against the life and physical integrity of human rights defenders in Venezuela. Information received by the IACHR makes reference to State actions aimed at delegitimizing and criminalizing the activity of human rights defenders and Venezuelan and international human rights NGOs that work in Venezuela. The information received by the Commission also indicates that high-level public officials, including the President of the Republic, have publicly accused several human rights organizations, as well as their members, of being part of a coup-mongering strategy or of having improper ties to foreign countries that are supposedly planning to destabilize the government. Moreover, statements have been made to discredit the professionalism of individuals who have appeared before the human rights protection bodies of the inter-American system.

589.          Below, the Commission will analyze how the work of defending human rights in Venezuela has been hindered through smear campaigns and criminalization efforts, as well as through attacks and threats directed at those who devote themselves to defending Venezuelans' human rights. The IACHR will also consider how the lack of access to public information has impeded the work of defending human rights in Venezuela.

            1.         Smear campaigns and criminalization campaigns

590.          Even though during the first years of the government of President Hugo Chávez Frías priority was given to a constructive dialogue with human rights organizations—as reflected in the process before the Constituent National Assembly, which incorporated several of the proposals made by the Forum for Life into the 1999 Constitution—the situation has undergone significant changes. Since 2003, in particular, the IACHR and Venezuelan human rights organizations[493] have concurred in observing a deterioration of the situation of human rights defenders; this is manifested, among other ways, in a policy to confront and publicly discredit defenders and their organizations, which has had consequences on their work.

591.          As has been indicated, the majority of attacks by the State on human rights defenders are currently done through smear campaigns.[494] According to information received by the IACHR, from May 2007 to May 2008, there were six cases of discrediting defenders and four cases of discrediting human rights organizations reported to the appropriate authorities in Venezuela.[495]

592.          In that regard, the Commission has observed how in recent years,[496] State officials have persisted in publicly discrediting human rights defenders so as to delegitimize any complaint they may present regarding violations to human rights, in some cases accusing them of being part of a destabilization plan and of acting "against the revolution" for having received funds from foreign organizations and countries for their financing.

593.          One example of how State bodies seek to disparage certain human rights organizations is the Final Report of the Special Commission to Investigate the Conspiracy and Organization of the Coup d'État and Assassination against the Commander and President of the Bolivarian Republic of Venezuela, Hugo Chávez, issued by the National Assembly of Venezuela in November 2008. This report describes the following as "international organizations that cooperate with the objectives of the empire":

Inter-American Press Association (IAPA), Human Rights Watch (HRW), right-wing parties in the European Parliament and the Mercosur Parliament, the U.S. Treasury Department, the Christian Democrat International and Christian Democratic Organization of America (ODCA), the so-called Anti-Drug Czar of the United States, the FBI, CIA, MOSAD and their agents in various intelligence organizations around the world, The Rendon Group, the television networks CNN, ABC News, Televisa, Univisión, FOX, CBS, TV Azteca, TV Globo, the Prisa group and print media controlled by the elite in countries subordinate to U.S. interests, the Inter-American Commission on Human Rights (IACHR), the International Republican Institute (IRI).[497]

594.          Another recent example took place in February 2009, in the context of the commemoration of the anniversary of the events of February 27, 1989, when the human rights organization COFAVIC sought to propose the creation of a coalition to investigate the most serious cases of human rights violations in Venezuela. The State's response was to disparage the organization that made the proposal; it indicated, via the Human Rights Ombudswoman, that COFAVIC has no legitimacy to offer proposals regarding the investigation of facts because it has been hijacked and its actions have been denaturalized.[498]

595.          The PROVEA human rights organization, in turn, was discredited numerous times by State officials when it published its Annual Report on the Situation of Human Rights in Venezuela, in December 2008. Among other things, on December 16, 2008, the Minister of Popular Power for the Interior and Justice, Tarek El-Aissami, stated: "In the eyes of the people, the PROVEA report is ludicrous...they deserve to have a pile of shoes thrown at them for being liars."[499]

596.          During the Hearing on the Situation of Institutions and Constitutional Guarantees in Venezuela, held during its 133rd period of sessions,[500] the Commission also received information about a smear campaign carried out against the director of the Venezuelan Prisons Observatory, Humberto Prado. According to the information received, Prado has been the target of disparaging remarks by high-level State officials, who have labeled him "a profiteer of the prison situation," both for his work in defending the rights of persons deprived of liberty in Venezuela as well as for his participation in hearings before this Commission. It was also reported that authorities of the executive and legislative branches have accused him repeatedly of being responsible for "organizing prison strikes," of "benefiting economically from internal problems," of "receiving financing from the opposition," and of "obeying the interests of the United States." Those statements have coincided with Humberto Prado's participation in hearings before the Inter-American Commission in which he has reported on the prison situation in Venezuela.[501] In addition, it was indicated to the IACHR that Humberto Prado has been submitted to an investigation of his personal bank accounts by the Office of the Superintendent of Banks, with no apparent motive.[502] The Commission was likewise informed that, in response to a chain of protests in the country's main prisons, on April 15, 2008, spokespersons for the National Assembly's Domestic Policy Commission made comments to discredit Humberto Prado.[503]

597.          During its hearings, the Commission was also told about the existence of a poster hung on the walls of the Mayor's Office of the municipality of Libertador with a photograph and a list of 100 individuals, including Liliana Ortega, Executive Director of the COFAVIC human rights organization.  It reads, "Recognize Them, People − Traitors of the Fatherland."[504]

598.          One display of intolerance toward observations and criticisms by international human rights bodies or organizations took place on the night of September 18, 2008, when the Venezuelan government ordered the expulsion of José Miguel Vivanco and Daniel Wilkinson, Executive Director and Deputy Director of the Americas Division of Human Rights Watch, a nongovernmental organization with a recognized track record in the protection of human rights. The expulsion was ordered hours after this organization presented a report on the human rights situation in Venezuela. The IACHR condemned these events, indicating that they affected the right of freedom of expression of representatives of that organization and moreover constituted an act of intolerance to criticism, which is an essential component of democracy.[505]

599.          The day after José Miguel Vivanco was expelled, the Venezuelan Minister of Foreign Affairs, Nicolás Maduro, commented that "the destabilizing actions of Vivanco and his delegation in Caracas constituted part of a plan designed in the United States with the complicity of right-wing pitiyanquis ["little Yankees"] who help them here." The IACHR views with concern the fact that in addition to expelling the executives of the international organization Human Rights Watch, State authorities took advantage of the occasion to delegitimize Venezuelan organizations that collaborated on the report prepared by Human Rights Watch.

600.          The Commission has also learned of other cases of smear campaigns carried out against human rights defenders. According to the information it has received, in September 2006 a smear campaign targeted Mrs. María del Rosario Gallucci, director and spokeswoman for the Committee of Victims of Guárico, and in 2006 and 2007, a smear campaign was carried out against members of the organization SINERGIA due to comments it had made on the International Cooperation Bill, as well as its creation of an informational brochure with comments on the draft constitutional reform. In 2007 Mrs. Alicia Ana González, whose work involved promoting and protecting civil and political rights through the organization COFAVIC, was the target of public disparagement, and the National Assembly also opened a political investigation against her because she was a beneficiary, along with other journalists, of an exchange program funded by the United States Embassy. In May 2007, the Director of the organization Espacio Público and members of the organization Reporters without Borders were victims of a smear campaign.[506]

601.          For its part, the State has said that "telling the truth about the behavior of some human rights defenders in Venezuela and abroad is no reason for them and the Commission to reach the conclusion that they are intimidated or frightened, inasmuch as they continue their work of discrediting Venezuelan institutions without any difficulty."[507]

602.          The State has also indicated that "some human rights defenders in Venezuelan do not tell the truth, and they consider that it is an act of intimidation to remind them that they did not condemn the coup d'état against President Chávez and they did not seek protection measures as they now do for themselves, with no grounds whatsoever. They did not speak out against the employers' and oil-company strikes, the guarimbas [street clashes], or the suspension of public services, nor did they denounce Venezuela before international bodies for the protection of human rights."[508] On this point, the State maintains that criticizing some human rights defenders with sufficient proof does not mean that all of them are discredited.

603.          In the judgment of the Commission, the discrediting remarks made by authorities of the State, or tolerated by them, have not only assaulted the right to honor and dignity of those who have been attacked, but they have also helped to create adverse conditions and to produce a chilling effect on the work of human rights defenders. Disparaging human rights defenders and their organizations could cause them, out of fear of possible reprisals, to hold back from making public statements critical of government policies, which in turn hampers debate and the ability to reach basic agreements regarding the problems that afflict the Venezuelan people.

604.          If they are to do their work freely, human rights defenders need adequate protection from the State authorities to guarantee they will not be victims of arbitrary meddling in their private lives, or of attacks to their honor and dignity.[509] In this respect, the IACHR emphasizes that the Venezuelan State, as well as the other States in the region, must "refrain from making statements that stigmatize human rights defenders or that suggest that human rights organizations act improperly or illegally, merely because of engaging in their work to promote and protect human rights."[510]

605.          On another matter, according to information received by the IACHR, as part of a strategy designed to intimidate human rights defenders and organizations, particularly when they are critical of the government, the State of Venezuela continues the practice of opening groundless judicial investigations or criminal complaints against them.

606.          The IACHR has been following the issue of the criminalization of human rights defenders in Venezuela and expressed its concern in Press Release No. 23/04, dated October 28, 2004, regarding the opening of judicial investigations into certain nongovernmental organizations for "conspiracy to destroy the Republican political form," a crime set forth in Article 132 of the Penal Code of Venezuela.

607.          In October 2004, the Office of the Attorney General accused leaders of the organization Súmate of committing that crime by virtue of their having received funding from the National Endowment for Democracy (NED), a U.S. institution that supports nongovernmental organizations in the promotion of democracy. It was alleged by the Attorney General’s Office that to transact with and request money from a foreign organization to carry out domestic political activities, particularly given this organization's role in the recall referendum put forth against President Chávez in 2004, constitutes a crime. As the IACHR has been told, it appears that other human rights defenders and nongovernmental organizations were also accused of the crime of "treason against the fatherland" for receiving international cooperation funding, particularly from the United States.

608.          Similarly, in April 2005 the Attorney General’s Office opened an investigation against Carlos Ayala Corao, former President of the IACHR and human rights defender, for the alleged crime of conspiracy, linking him to the events of April 2002. In 2008, and without being previously consulted, the Attorney General’s Office requested the closure of the investigation in application of a Presidential Amnesty decreed in December of 2007. Although Carlos Ayala expressed his disagreement with the manner of ending the investigation, the amnesty was imposed upon him and although he appealed the decision to apply it to him, he did not receive justice.

609.          The Attorney General's Office has also attempted to open judicial actions, including defamation complaints, against beneficiaries of provisional measures issued by the Inter-American Court, in an attempt to have the victims prove the acts of aggression they have suffered.

610.          For example, on July 22, 2005—the same day the human rights organization COFAVIC gave a press conference regarding a hearing held before the Inter-American Court of Human Rights on the case of the forced disappearances that occurred after the landslides in Vargas state in 1999—the 24th Deputy National Prosecutor phoned the director of COFAVIC to tell her that "following higher orders from the Director of Fundamental Rights of the Office of the Attorney General of the Republic, she should appear at a hearing at 8:30 a.m. on Monday, July 25, 2005, to give a statement on whether or not there was a legal basis for her provisional measures [granted by the Inter-American Court of Human Rights], given that her case was going to be presented to a supervisory court.”[511]

611.          According to the information received, when she received this call the COFAVIC director asked for the information in writing. After waiting for an hour, she was informed by the higher-level prosecutor in the Attorney General’s Office that "it was no longer necessary for her to appear, as they had decided to send the case directly to the supervisory court, since even though the provisional measure had been handed down by the Inter-American Court, it had to be processed by the national jurisdictional body to review whether or not the measure would proceed."[512] The beneficiaries of these measures informed the Commission that they had been summoned to the Attorney General’s Office on more than four occasions and to the criminal jurisdiction seven times. Furthermore, they affirm that on September 29, 2008, the 33rd Supervisory Court of Caracas decided to reject the complaints they had filed with respect to the acts that led to the adoption of the provisional measures and to close the file, thus failing to comply with its obligation to investigate the facts and punish those responsible for the attacks against them.[513]

612.          In its observations on the present report, the State indicated that the citations carried out by the Attorney General’s Office and the 33^rd Court of Control were based on the Law for the Protection of Procedural Subjects, which aims to have a court designate police officials to protect persons who have been issued measures of protection by the Inter-American Court of Human Rights. It affirmed that the judicial proceeding is to guarantee the rights of persons protected by the system for the protection of human rights and not to intimidate them.[514]

613.          The Commission has also been informed that defamation lawsuits have been filed against defenders who go to the media to denounce human rights violations and to identify the State agents who are responsible. For example, in April 2006, a prosecutor of the Attorney General’s Office introduced a defamation suit against Elizabet Cordero, Ninoska Pifano, Ronmer Hernández, Luis Principal, Miriam Núñez, Zuleika Pérez, and Carlos Mellizo, members of the Committee of Victims against Impunity in the state of Lara. The aforementioned Victims Committee had publicly accused the prosecutor of "distorting" the investigation of a victim of a human rights violation in the course of his work at the Attorney General’s Office.[515]

614.          Similarly, in July 2008, the Police Commander of the state of Anzoátegui filed suit against Mr. Ysober Duarte for allegedly committing crimes of continued aggravated defamation and aggravated insult, after Mr. Duarte had denounced to COFAVIC the death of his son Alí Duarte Urquiola, who reportedly was killed on March 22, 2008, at the Puente Ayala Prison, presumably by fellow inmates. According to what Mr. Duarte reported, his son had allegedly suffered abuse of power at the hands of the Anzoátegui state police before his death, had been detained illegally, and was subject to a tainted criminal process that ended in his murder.[516]

615.          Recently, in June 2009, the 66th National Prosecutor's Office, along with the 128th Prosecutor's Office of the Caracas Metropolitan Area, opened an investigation into the nonprofit civil organization CEDICE, due to a campaign entitled "CEDICE for a Country of Owners," which the organization had launched to publicize the importance of the right to private property in Venezuela. The actions were initiated by the Attorney General’s Office after a group of congressmen from the United Socialist Party of Venezuela (PSUV, by its Spanish acronym) had gone to the Office of the Attorney General of the Republic to complain that the campaign supposedly discredited the Law of Social Property and distorted its underpinnings by sending a message to the public that private property was being violated.[517]

616.          At times, criminal actions initiated against human rights defenders in Venezuela are used to limit or disparage their efforts. One such example that could be cited is the case of the director of the Venezuelan Prisons Observatory, Humberto Prado. The Interior and Justice Minister has said it would be impossible for Prado to be called on by the national government to discuss policies for humanizing the prison system by virtue of the fact that in 1997 two proceedings were begun against him for alleged violations of the human rights of prisoners in the Yare I penitentiary.[518] In this regard, the Commission reiterates that cases in which state authorities make statements or issue communiqués publicly incriminating a human rights defender of acts that have not been legally proven constitute a violation of the human rights defender's right to honor.[519]

617.          The Commission even learned about the arrest by police officers of Mr. José Antonio Paéz Solis, Assistant to the Ombudsman assigned to the Office of the Human Rights Ombudsman representing the Caracas Metropolitan Area. According to information from the Office of the Human Rights Ombudsman, his arrest occurred in the course of carrying out his duties as an ombudsman in the city of Caracas. In view of the situation, the Office of the Human Rights Ombudsman asked the Constitutional Chamber of the Supreme Court of Justice to hear the case. Although the Constitutional Chamber ruled that it lacked jurisdiction, it noted the infringement of the human rights of "an official who was acting in the defense of a citizen's human rights and who identified himself as a representative of the Office of the Human Rights Ombudsman, an institution with constitutional standing whose principal purpose is the defense of human rights." It therefore ordered the case to be sent to the Office of the Attorney General's Department of Fundamental Rights with a view to begin an investigation into the police officers who acted in the incident.[520]

618.          In its observations on the present report, the State emphasized that the IACHR could not attempt to “establish a mantle of immunity for human rights defenders as it has done with Venezuelan journalists. If the Venezuelan State considers that there is coordination between human rights organizations and Venezuelan groups advocating the overthrow of the government, as occurred during the coup d’état of April 11, 2002, it has the obligation to denounce this. Additionally, we will do this when there is financing by organs of the United States Department of State, such as USAID and the NED, which finance nongovernmental human rights organizations. It is the duty of the Venezuelan State to safeguard the national security of the Bolivarian Republic of Venezuela.”[521]

619.          Certainly the State has the duty to investigate and punish those who break the law within its territory, but it also has the obligation to take all necessary measures to avoid having State investigations lead to unjust or groundless trials for individuals who legitimately claim the respect and protection of human rights. In this regard, the Commission underscores that opening groundless criminal investigations or judicial actions against human rights defenders not only has a chilling effect on their work but it can also paralyze their efforts to defend human rights, since their time, resources, and energy must be dedicated to their own defense.

620.          By virtue of the foregoing, as the IACHR has indicated that "no effort on the part of the state authorities to cast doubt on the legitimacy of the work of human rights defenders and their organizations should be tolerated. [...] [P]ublic officials should refrain from making declarations that stigmatize human rights defenders or that suggest that human rights organizations act improperly or unlawfully, merely because they work to promote or protect human rights."[522]

            2.         Attacks, threats, and harassment

621.          According to the information received by the IACHR, human rights defenders in Venezuela are not only affected by smear campaigns and criminalization campaigns, but they are also victims of attacks, threats, and harassment, and even murders. This leads to a chain effect that affects the state of human rights in general because only when human rights defenders have appropriate protection for their rights can they seek to protect the rights of others.[523]

622.          It is worth noting that acts of violence and harassment directed against human rights defenders intensified with the institutional crisis that affected Venezuela in 2002, but had not been a problem that affected the country before that. In fact, in its last Report on the Situation of Human Rights in Venezuela, issued in 2003, the Commission noted that this situation did not reflect a generalized practice and that previously human rights defenders in Venezuela had been able to pursue their functions without any such problems.[524]

623.          Along these same lines, Venezuelan human rights organizations have noted with concern that murders and executions of human rights defenders have been recorded for the first time in Venezuela's democratic history. The Vicariate of Human Rights of Caracas has documented six cases of violations of the right to life of human rights defenders in Venezuela between 1997 and 2007.[525]

624.          One of the six murders was a landmark case that demonstrated the change in conditions under which human rights defenders in Venezuela began to work from the time of the 2002 institutional crisis. The victim of the murder of August 27, 2003 was Joe Luis Castillo González, former coordinator of the Office of Human Rights of the Vicariate of Maquiquies. Joe Castillo, who had previously received threats related to his work, was shot nine times when he was heading home with his wife and young son. This act was allegedly perpetrated by two men on a motorcycle, who opened fire on the human rights defender's vehicle, killing him, wounding his wife, and leaving his 1½-year-old son in critical condition.

625.          The murder was condemned by the IACHR, which urged the State of Venezuela to guarantee the conditions necessary for human rights defenders to be able to carry out their work and to undertake an exhaustive investigation to establish the identity of those responsible.[526] Further, on August 29, 2003, the Inter-American Commission on Human Rights requested the adoption of precautionary measures for the wife and son of Joe Castillo. Even though the facts of the case were reported to the Attorney General’s Office and even though on August 29, 2003, the Human Rights Ombudsman requested that the Office of the Attorney General of the Republic designate a special prosecutor to investigate the facts, the Commission was informed that in June 2007, the Attorney General’s Office closed the case file that had been opened in the murder of Joe Castillo and the injury of his wife,[527] leaving these acts in a state of impunity.

626.          The remaining five murders of human rights defenders referred to in the report of the Vicariate of Human Rights of Caracas are connected to the activities of relatives of victims of extrajudicial executions in Venezuela. These include José Ramón Rodríguez, allegedly executed by regional police officers in Portuguesa on October 28, 2000, and Enmari Dahiana Cava Orozco, allegedly murdered by Cagua municipal police officers on March 10, 2003.

627.          The Commission recently received information about an attempted assassination of José Luis Urbando, president of the NGO Prodefensa del Derecho a la Educación (In Defense of the Right to Education), which occurred on August 27, 2009. According to the information received, Mr. Urbano was traveling by motorcycle at night, on a highway in the city of Barcelona, in Anzoátegui state, when he was intercepted by two unknown individuals who were also traveling by motorcycle on the same highway. According to the victim's account, one of the men shouted, "That's the guy. Kill him." Mr. Urbano then flung himself off his vehicle and hid behind some bushes, dodging several gunshots. Mr. José Luis Urbano had suffered a similar attempt on his life in 2007, after making a series of charges about irregularities in the Anzoátegui state schools.[528]

628.          In addition, the report of the Vicariate of Human Rights of Caracas documents 71 cases of attacks or obstructions to the work of human rights defenders from 1997 to 2007. Most of the attacks (26.73% of the documented cases) consist of threats.[529] These are followed by smear campaigns, with 18.81% of cases; acts of aggression, 14.85%; following and surveillance, 8.91%; and extrajudicial executions, 5.94% of the registered cases. The rest refer to the filing of judicial actions; trespass into an activist's residence or office; and arbitrary detentions, with 4.95% for each of those types of cases. Less frequent types of attacks are the application of arbitrary financial and administrative controls on NGOs, in 3.96% of cases, and failed murder attempts and restrictions to public information in the hands of the State, with 2.97% each.[530]

629.          In the period from May 2007 to May 2008, the Episcopal Vicariate of Rights of the Archdiocese of Caracas studied a total of 27 cases of attacks on human rights defenders and the organizations to which they belong. In 19 of these cases, the human rights defenders themselves were victims, and in 8, the attacks were directed at organizations they represent. According to information provided to the Commission by the Vicariate, the 19 cases of attacks on defenders break down as follows: disparagement (6 cases); threats (3 cases); death threats (2 cases); physical aggression (1 case); surveillance and tailing (1 case); arbitrary detention (which obstructed the lodging of an international complaint, 1 case); failed attempt on someone's life (1 case); murder (which must be investigated to see whether it was related to the victim's work as a defender, 1 case); subjecting to criminal jurisdiction (1 case); subjecting to parliamentary investigation (1 case); and obstacles to the exercise of the right of participation (1 case). The 8 reported cases of attacks against human rights organizations were as follows: disparagement (4 cases); denial or omission of information (2 cases); obstacles to participation (1 case, which affected all organizations, as it involved discussion of draft legislation); and establishment of arbitrary controls (1 case).[531] 

630.          For its part, the organization COFAVIC has documented before the Commission a total of 32 cases of attacks, threats, and harassment directed against human rights activists in Venezuela from 2006 to 2008. Of the 32 cases, the Commission notes with concern that witnesses and relatives of victims of human rights violations who push for investigations are frequently victims of threats, harassment, and acts of intimidation because of their actions to file complaints, organize relatives of victims, and investigate abuses on the part of State authorities.

631.          For example, according to the information received, Sara Mier y Terán, coordinator of the Life Peace and Liberty Association, and members of the committee of relatives of victims of police abuse in the state of Aragua were victims of acts of aggression and were watched and followed in June 2006 and January 2007; Melquiades Moreno, a relative of a victim of extrajudicial execution and founder of the committee of victims against police and military abuse in the state of Anzoátegui, received threats in February 2006; Lisbeth Sira, a relative of Victoria Samaria, who disappeared on March 11, 2007, in the state of Portuguesa, allegedly at the hands of the Scientific, Criminal, and Criminalistic Investigations Corps (CICPC, by its Spanish acronym) officers, has been the victim of threats since March 2007; Mirla Quiñones, a member of the committee of victims against impunity in the state of Lara, received threats in May 2007; and Samira Montilla, a relative of Adriana Galindo, who disappeared on March 11, 2007, in the state of Portuguesa, allegedly at the hands of CICPC officers, has also received threats since March 2007; Mr. Carlos Mora, father of Carlos Eduardo Mora, who was allegedly murdered by police officers in 2006, was the victim of an attack in December 2007; in January and February 2008, the wives of officials charged in the events of April 2002, Mmes. Castro, Simonovics, and Vivas, reported having been victims of harassment due to their actions in defense of their husbands; the relatives of victims of executions and arbitrary detentions allegedly carried out by police officers in the state of Lara reported having been victims of harassment since February 2008; and the relatives of Maicol Caripa Andrade, who was killed on May 16, 2008, allegedly by officers of the Directorate of Intelligence and Prevention Services (DISIP, by its Spanish acronym), report having received serious threats since June 2008. In July 2008 Mrs. Nancy Marcano said she had received threats and told to desist in her complaint related to the death of her son Carlos Joel Marcano Rojas, who was killed in May 2007—allegedly by others in custody—in full view of Anzoátegui state police officers while he was being detained at that entity's police headquarters.[532]

632.          In addition, COFAVIC has informed the Commission that over the last two years there has been a worsening of acts of aggression against activists who turn to the inter-American system for the protection of human rights. The IACHR was informed that in the majority of the cases, no judicial investigations have been opened, and in the few cases in which they have been opened, the jurisdictional bodies have ordered the files to be closed.[533]

633.          One of the organizations that frequently turns to the inter-American human rights system to report on the situation in Venezuela or to present specific cases is the COFAVIC. According to what the IACHR has been told, members of COFAVIC have been victims of threats and acts of intimidation from 2002 to the present. Liliana Ortega, a founding member of the organization, reported having received a large number of personal e-mail messages in which members of the organization are called fascists or coup-mongers or are threatened with death. Pamphlets with death threats have also been left at the COFAVIC headquarters; an explosive device has been tossed in the immediate vicinity of Liliana Ortega's residence; and individuals have tried to block her passage on public thoroughfares, directing death threats and acts of harassment against COFAVIC and against her personally. She has also stated that she has received numerous telephone calls with insults and threats. As COFAVIC has indicated, the acts of aggression have intensified every time the organization has taken a case to the inter-American human rights system or has offered a press conference or statement to the media.[534] Something similar has occurred with Humberto Prado, director of the Venezuelan Prisons Observatory, who has received death threats that have intensified as a result of his participation in hearings before the Inter-American Commission and the Inter-American Court of Human Rights.[535]

634.          The Commission notes with particular concern that individuals and organizations that turn to the inter-American human rights system to present cases or participate in hearings are targets of aggression in Venezuela. In fact, 8.45% of the attacks documented in the report of the Vicariate of Human Rights of Caracas took place following decisions by the Commission or the Court in favor of the victims or after a defender provided information to the bodies of the inter-American system on the situation of fundamental freedoms in Venezuela.[536]

635.          The IACHR has also followed the situation of human rights defenders in Venezuela through the precautionary and provisional measures handed down by the Inter-American Commission and the Court, respectively. Thus, from November 27, 2002, through July 9, 2009, provisional measures issued by the Inter-American Court were in place for Liliana Ortega and other members of COFAVIC, by virtue of the prima facie assessment of threats to their rights to life and humane treatment, taking into account the threatening calls and e-mails and the tossing of an object that caused an explosion and fire in the vicinity of Liliana Ortega's residence.

636.          From November 27, 2002 to the present, measures adopted by the Inter-American Court have continued to be in place, at the Commission's request, for human rights defender Luis Uzcátegui. This is due to the prima facie assessment of threats to his right to life and physical integrity, taking into account that from 2001 to 2002 he had apparently been the target of at least seven death threats allegedly made by undetermined private individuals or by some members of the military group "Lince" and the Police Armed Forces of the state of Falcón. These functionaries allegedly were tied to the extrajudicial execution of his brother Néstor Uzcátegui, which took place in January 2001. In this context, Mr. Uzcátegui has been subject to acts of harassment, searches, arbitrary detentions, and threats to his life and physical integrity, due to his activities in making charges, organizing victims' relatives, and investigating extrajudicial executions of individuals, including that of his brother.[537]

637.          From July 9, 2004 through January 26, 2009, provisional measures were in place for Carlos Nieto Palma and his mother, Ivonne Palma Sánchez, due to the prima facie assessment of a threat to the rights to life, humane treatment, and freedom of expression of Mr. Nieto Palma, as well as his mother's right to life and humane treatment. This stemmed from a visit Mr. Nieto Palma received on June 6, 2003, from three political police agents of Directorate of Intelligence and Prevention Services (DISIP, by its Spanish acronym), a dependency of the Ministry of the Interior and Justice, who informed him that they had an order to conduct a residential visit and that they wanted to talk to him. Mr. Nieto Palma was interrogated about, among other things, his work as a human rights defender, the work he does in Venezuelan prisons, and the funding of his nongovernmental organization "Una Ventana a la Libertad" (A Window onto Freedom), which is devoted to the defense and promotion of human rights in Venezuelan prisons. He had also received a threat on June 20, 2004, when some neighbors from the building in which he lives handed him a pamphlet that read, "[...] You'll never live to tell the tale [...]." The Commission observed, in addition, that in May 2008, Mr. Nieto Palma reported having received verbal threats from the Metropolitan Police officers in charge of protecting him, and he also reported irregularities in the official records sent by the State with regard to his protection. More recently, it was reported that three Metropolitan Police officers visited Mr. Nieto's residence on August 19, 2009, and asked him, "Why don't you just shut your mouth and not get involved in more complications? You should stop bringing out these things about the Minister"—a reference to complaints the defender had made with respect to irregularities in the country's prisons.[538] 

638.          Since September 24, 2004, provisional measures have been in place to protect the life and personal integrity of Mmes. Eloisa Barrios, Inés Barrios, Beatriz Barrios, and Carolina García, and of Messrs. Jorge Barrios, Oscar Barrios, Pablo Solórzano, Caudy Barrios, and Juan Barrios. The IACHR had requested that the State adopt precautionary measures for Mrs. Eloisa Barrios and her family on June 22, 2004, due to the constant threats and acts of intimidation because of her complaints related to the murder of her relative, Narciso Barrios, allegedly committed by agents of the State. The IACHR sought provisional measures from the Court after learning of the violent death of one of the beneficiaries of precautionary measures, Rigoberto Barrios, who was shot nine times. On November 28, 2009, Oscar Barrios, who was the beneficiary of provisional measures ordered by the Court, was assassinated. Oscar Barrios was the fifth member of this family to be assassinated, according to the information received, by police in the state of Aragua. The Inter-American Commission considers it to be of the utmost seriousness that the State of Venezuela had not adopted the measures necessary to protect the lives and integrity of the members of the Barrios family effectively. The family affirms that it continues to be the object of detentions, raids, threats, and harassment. On December 4, 2009, the IACHR condemned the assassination of Oscar Barrios.[539]

639.          From July 4, 2006 to the present, provisional measures adopted by the Inter-American Court at the Commission's request have been in place for Mrs. María del Rosario Guerrero Gallucci, a member of a human rights group called Soldiers for Justice, Peace, and Liberty on a Crusade against Impunity. She was a victim of threats and even an attack with firearms after having publicly denounced the police and state authorities of the state of Guárico for their alleged participation in executions carried out by police in that state, as well as for having been a witness in a criminal case filed against the editor of a weekly by the governor of that state.

640.          With respect to the provisional measures issued to protect the life and integrity of human rights defenders in Venezuela, the Commission observes with concern that, according to information received, the implementation of these protection measures has "become, in the majority of cases, a new form of aggression for their beneficiaries, and a direct path toward criminalizing the work of human rights organizations and delegitimizing their members. In addition, the Attorney General’s Office has decided in some cases to turn to domestic criminal courts so the provisional measures can be ratified by a domestic judge."[540] For example, with regard to the provisional measures issued by the Inter-American Court for COFAVIC members, the beneficiaries stated that since 2005, they have been summoned to the Attorney General’s Office more than four times and before the criminal jurisdiction seven times. In their judgment, this has "distorted the purpose of provisional measures in the inter-American system, [since] it is no longer the State that responds to the Inter-American Court on compliance with the measures, but the beneficiaries who must respond to the State, in a criminal jurisdiction, regarding compliance.”[541]

641.          In this regard, the Commission reiterates that persons have the right to seek effective protection under national and international law to protect human rights, and to oppose any type of activity or action that could lead to violations of these rights. This right involves the possibility of turning to international human rights protection bodies without any type of obstacle or reprisal.[542]

642.          The Commission takes note that in 2006, the State adopted the Law on the Protection of Victims, Witnesses, and Other Parties to Court Proceedings[543] with a view to establishing the principles that govern the protection of and assistance regarding the rights and interests of victims, witnesses, and other parties to proceedings, and to regulate the protection measures in terms of their sphere of application, modalities, and procedures (Article 1). According to the State, this legislation likewise applies for the protection of human rights defenders. However, the State has said that no qualitative or quantitative information is available on whether or not the law has been effective in cases involving human rights defenders.[544]

643.          The Commission considers it troubling that, according to the information received, in the past year attacks against human rights defenders in Venezuela have worsened, particularly when it comes to those who turn to the inter-American system.[545] As this Commission has stated, in attacking the life or personal integrity of human rights defenders, what is sought is to make an "example" of the victims, bring to a halt the process of reporting violations, get human rights organizations to leave certain areas, and/or bring about a drop in the number of complaints presented.[546] 

644.          This situation is more serious still if one takes into account the impunity that is seen in investigations into attacks in which the victims are human rights defenders in Venezuela. In the majority of cases, no judicial investigations have been opened, and in several of the cases that have been opened, the jurisdictional bodies have ordered the case files closed. According to information received by the IACHR, "to date there are no known firm judgments or judgments of the first instance with regard to these cases. Nobody has been convicted and punished for being responsible for attacks suffered by human rights defenders."[547]

645.          As the Commission has stressed, the lack of a serious investigation into complaints involving human rights defenders in some cases and the slow place of the administration of justice in others, added to the failure by the states to recognize that defenders require special protection, are all factors that lead to the impunity of those who violate human rights. This impunity, in turn, fosters the vulnerability of human rights defenders, since it creates a perception that it is possible to violate their human rights without being punished.[548]

646.          As the Commission noted in its Report on the Situation of Human Rights Defenders in the Americas, when human rights defenders are attacked, everyone they work for is left unprotected. In light of the foregoing, the Commission urges the State of Venezuela to take any measures necessary to prevent continued attacks against human rights defenders and to carry out serious and impartial investigations with regard to cases that may involve possible violations of the rights to life and physical integrity of human rights defenders.

            3.         Lack of access to public information

647.          The State has noted that under Venezuelan law, information about public administration is universal; consequently it does not discriminate between nongovernmental organizations and other private individuals.[549] The State mentions that "in Venezuela there is complete access to information by citizens, and in the case that an official should arbitrarily refuse to provide it, the citizen has legal avenues with which to challenge the official's decision, save for the exceptions established in Venezuelan law."[550]

648.          Nevertheless, as the Commission has been informed, "the lack of systematic access to public information is one of the principal problems faced by human rights defenders in Venezuela, and a practice of State silence has developed that keeps nongovernmental organizations and human rights activists from finding out public information available on issues [such as] operational plans to control public order, data on homicides and injuries inflicted by State functionaries, and on prison conditions, among other things."[551]

649.          The IACHR has indicated that creating a system of access to information that meets the requirements of the American Convention on Human Rights is a task that is more complicated than simply declaring that the public can have access to information that is in the hands of the State.[552] Any system for access to information must recognize the principle of maximum disclosure, the presumption of the public nature of meetings and basic documents, broad definitions of the type of information to which access is available, reasonable fees and timeframes, an independent examination of denials of access, and sanctions for noncompliance.[553]

650.          In its observations on the present report, the State asserted that the lack of information from public entities, particularly statistical reports, is one of the principal problems for the presentation of reports on human rights in the majority of the states. It added that “Venezuela also recognizes that it is in this situation and we are doing the impossible to overcome it, and for this reason we must eliminate part of the bureaucracy of the public administration.”[554]

651.          With regard to laws and mechanisms designed to promote and guarantee, without undue restrictions, the work of human rights defenders and their contributions to the investigation of cases having to do with alleged human rights violations, the State notes that according to Article 304 of the Organic Code of Criminal Procedures, the Office of the Human Rights Ombudsman can participate in the review of a case file when it is presumed that there has been a violation of human rights.

652.          In addition, the State stresses that nongovernmental organizations for the protection and defense of human rights, as well as natural persons, have at their disposal a very specific law to be able to actively participate in criminal investigations and to collaborate in the development of investigations. The law to which the State makes reference is Article 121 of the Venezuelan Organic Code of Criminal Procedures, which establishes that "[t]he Office of the Human Rights Ombudsman and any natural person or association for the defense of human rights may present a complaint against public officials or employees, or agents of police forces, who have violated human rights in the exercise of their functions or on the basis of these functions." The State has emphasized that this article promotes the participation of NGOs in the development of human rights and especially in the accompaniment of the victim in the recovery of his or her rights that have been injured.[555]

653.          The State of Venezuela also indicates that access to information regarding matters having to do with State administration is guaranteed as a citizen right in the Constitution. In that regard, the State cited the constitutional norms contained in Article 28, under which "all persons have the right to access information, facts about their property contained in public or private records"; Article 51, which establishes that "all persons have the right to represent or direct petitions before any authority or public official on matters that are under these individuals' competence"; Article 58, which guarantees "the right of all citizens to receive timely, truthful, and impartial information"; Article 108, under which the State is committed to allow universal access to information; Articles 141 and 143, which determine the conditions of operation and the obligation to inform the public regarding public administration; Article 311, under which public administration is marked by the principle of transparency, among other things; and Article 315, which establishes the obligation of accountability on the part of public officials regarding whether or not there has been compliance with the objectives laid out in the annual budget.[556]

654.          Moreover, the State mentions that the right to public information is also enshrined in three organic laws. The Organic Law on Public Administration contemplates the obligation of State agencies to duly and completely inform citizens not only on specific matters but also in terms of its structure, norms, and procedures; the Organic Law on Planning determines public entities' commitment to inform citizens; and the Organic Law on Municipal Public Power prescribes a series of mechanisms to guarantee adequate information for citizens.[557]

655.          Finally, the State reports that in Venezuela, Article 66 of the Constitution refers to the implementation of the social comptrollership as a tool of the popular power for the control and efficient use of State resources. This norm grants voters the right to have their representatives offer a transparent and regular accounting of their management. According to the State, this provision translates into citizen supervision of public administration, in a context of participatory, active democracy.[558]

656.          The Commission values the abundant laws, indicated by the State, to allow the public and human rights defenders to have access to information and participation in public affairs. As the IACHR has noted, the defense of human rights and the strengthening of democracy require, among other things, that citizens have broad knowledge about the workings of the various State bodies, including budgetary aspects, the degree of progress toward accomplishing the goals laid out, and the State's plans and policies to improve the living conditions of society.[559]

657.          In this regard, the Commission is concerned about information received indicating that, despite the constitutional and organic provisions summarized by the State, human rights defenders continue to face obstacles in practice to gain access to information that would allow them to carry out their functions. A study done by PROVEA, based on a follow-up to 157 requests for information presented to 50 public institutions in February and March of 2008, found that more than 70% of the bodies did not provide responses, either through denial of the request or through administrative silence, and only 10% of the responses obtained were adequate.[560]

658.          As an example of the foregoing, on July 17, 2009, the human rights organization PROVEA stated that, in contradiction to the provisions of Articles 51 and 143 of the Constitution, executives of the Mental Health Program of the Ministry of Popular Power for Health refused to provide information on statistics, incidences of cases, and the mental illnesses most common in 2008, as well as on budgetary performance. According to the information the IACHR received, the officials alleged that such information was confidential; they also allegedly said that they had orders not to give any information to PROVEA.[561] PROVEA's intention was to use such information as input to the annual report it prepares on the Situation of Human Rights in Venezuela, particularly the chapter on the Right to Health—a report that, in the judgment of the Commission, constitutes a valuable exercise of social oversight in the area of human rights.

659.          In its 2007 Annual Report, the IACHR already called attention to a similar case, which took place in March 2007, when the Health Director of the Ministry of Popular Power for Health refused to provide PROVEA staff with public information about the country’s mental health service and facilities, alleging that the general coordinator of that human rights organization had, in an interview, compared the government of President Hugo Chávez with that of Rafael Caldera. According to the available information, before he would give PROVEA access to the information, the Health Director demanded that PROVEA rectify that opinion, also arguing that he could not provide the information because he did not know how PROVEA would use it.[562]

660.          The IACHR recalls that the Inter-American Court has stated that in a democratic society, it is essential for State authorities to be governed by the principle of maximum disclosure, which establishes the presumption that all information is accessible, subject to a limited system of exceptions. Thus, it corresponds to the State to show that it has complied with the requirements of legality, necessity, and proportionality when establishing access restrictions to the information it holds.[563] In the judgment of the Commission, to deny public information to human rights organizations based on the authorities' perception of that organization's political position constitutes an undue restriction to the right of access to information and an impediment to the effective exercise of its functions in defense of human rights.

661.          Another example of how the lack of information affects the work of human rights organizations was brought to the attention of the IACHR during the Hearing on Citizen Security in Venezuela, which the Commission held on October 28, 2008. On that occasion, the director of the Venezuelan Observatory on Violence informed the IACHR that beginning in 2005, the Ministry of Popular Power for the Interior and Justice had stopped publishing statistics on deaths caused by violence, and the NGOs have been unable to access the data. This has led to misinformation about the subject and forced nongovernmental organizations to use and produce unofficial information.

662.          The Inter-American Court has emphasized that access to information in the hands of the state constitutes a fundamental right of individuals and that the states are obligated to guarantee that right.[564] The OAS States, in turn, have recognized the importance of access to information as a requisite for the very exercise of democracy, and have urged Member States to implement laws or other provisions that would give citizens ample access to public information.[565]

663.          The Commission understands that the State may have in its power information of a sensitive nature, and in this regard it underscores that Article 13.2 of the American Convention on Human Rights establishes the only circumstances in which the states may legitimately deny access to information. According to this standard under the convention, restrictions must be strictly defined by law and must be necessary to ensure: a) respect for the rights or reputations of others, or b) the protection of national security, public order, or public health or morals.

664.          Regarding information not shielded by one of the exceptional circumstances noted in the preceding paragraph, the Commission urges the State of Venezuela to create those mechanisms that would allow all individuals and all human rights organizations, without discrimination based on their stance toward the government, to have timely access to public information, as well as to any information that exists about them.

665.          Finally, taking into account the information described in this chapter regarding the situation of human rights defenders in Venezuela, the IACHR calls upon the State to adopt appropriate measures to guarantee the right to association for the promotion and protection of human rights, especially by limiting administrative and financial controls on human rights organizations. The IACHR also calls upon the State to guarantee the fundamental rights of those who dedicate themselves to this important task, including their rights to life and personal integrity. The Commission exhorts the State to cease the smear and criminalization campaigns, as well as the acts of aggression that make the defense of human rights a risky activity in Venezuela.
 

C.        Recommendations

666.          In order to allow human rights defenders to freely carry out their important work, the Commission recommends that the State:

1.       Guarantee conditions so that human rights defenders can freely carry out their activities and refrain from taking any action that could limit or impede their work.

2.       Adopt all measures necessary to prevent violations of human rights defenders' right to life and humane treatment, as well as to investigate all acts of violence against them, independent of whether State agents or private individuals may be involved.

3.       Grant effective measures for the protection of witnesses and relatives of victims of human rights violations.

4.       Have available the necessary human, budgetary, and logistical resources to guarantee the implementation of adequate, effective protection measures when the personal security and life of a human rights defender may be at risk. In addition, ensure that the security measures are in fact put in place during the period in which the conditions of risk so demand.

5.       Adopt the necessary measures so that public officials refrain from making statements that stigmatize human rights defenders or that suggest that human rights organizations are acting improperly or illegally merely for the fact of carrying out their efforts to promote or protect human rights.

6.       Implement the laws and mechanisms necessary to enable citizens to easily and effectively gain access to public information and to facilitate their broad knowledge about the workings of the various State bodies.

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

8.       Refrain from imposing illegitimate restrictions on financing, including foreign financing, of human rights organizations. 

9.       Take into account the Commission's recommendations and the concerns of Venezuelan human rights organizations regarding the International Cooperation Bill.