DEMOCRACY AND HUMAN RIGHTS IN VENEZUELA

CHAPTER VII
 

VII.     ECONOMIC, SOCIAL, AND CULTURAL RIGHTS

957.          The American Convention states in its preamble that “the ideal of free men enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his economic, social, and cultural rights, as well as his civil and political rights.”

958.          Additionally, the preamble of the Protocol of San Salvador points to the close link that exists between the observance of economic, social, and cultural rights and of civil and political rights in that different categories of rights constitute an indivisible whole rooted in recognition of the dignity of the human person. It is for that reason that such rights require ongoing protection and promotion aimed at achieving their full observance wherein the violation of some rights can never be justified for the sake of attaining the others.

959.          The Inter-American Democratic Charter also emphasizes in its preamble the importance of the reaffirmation, development, improvement, and protection of economic, social, and cultural rights in order to consolidate the system of representative democratic government. The Charter goes on to state in Article 12 that poverty, illiteracy, and low levels of human development are factors that adversely affect the consolidation of democracy.

960.          In the light of these principles, this report of the IACHR will analyze the legal framework of protection of economic, social, and cultural rights in Venezuela as well as the status of some such rights taking particular account of poverty, education, and health indicators. Within that legal framework of protection, the Commission will likewise consider the protection of the rights of indigenous peoples along with trade unions rights.

A.        Normative framework for the protection of economic, social, and
                       cultural rights

961.          The Commission notes with satisfaction that upon adoption of the 1999 Constitution, Venezuela incorporated within its legal framework a vast array of human rights, including many aspects of economic, social, and cultural rights. Indeed, the Venezuelan Constitution posits the progressive development of economic, social, and cultural rights, and establishes the State as guarantor thereof.

962.          Chief among these norms is recognition of the right to health, enshrined in Article 83 as follows:

Health is a fundamental social right and the responsibility of the State, which shall guarantee it as part of the right to life. The State shall promote and develop policies oriented toward improving the quality of life, common welfare, and access to services. All persons have the right to protection of health, as well as the duty to participate actively in the furtherance and protection of the same, and to comply with such health and hygiene measures as may be established by law, in accordance with international conventions and treaties signed and ratified by the Republic.

963.          Articles 84 and 85 of the Constitution speak to the public health system and the State’s obligation to finance it. In turn, Articles 87 and 94 of the Constitution address the right to work and trade union rights. These provisions establish the inalienability of labor rights. Article 87 of the Constitution outlines the right to work as follows:

All persons have the right and duty to work. The State guarantees the adoption of the necessary measures so that every person shall be able to obtain productive work providing him or her with a dignified and decorous living and guarantee him or her the full exercise of this right. It is an objective of the State to promote employment. Measures tending to guarantee the exercise of the labor rights of self-employed persons shall be adopted by law. Freedom to work shall be subject only to such restrictions as may be established by law.

964.          Cultural and educational rights are enshrined in the norms of Articles 98 to 111 of the Constitution. With respect to the right to education, Article 102 stipulates that:

Education is a human right and a fundamental social duty; it is democratic, free of charge and obligatory. The State assumes responsibility for it as an irrevocable function of the greatest interest, at all levels and in all modes, as an instrument of scientific, humanistic, and technical knowledge in the service of society. Education is a public service, and is grounded on the respect for all currents of thought, to the end of developing the creative potential of every human being and the full exercise of his or her personality in a democratic society based on the work ethic value and on active, conscious and joint participation in the processes of social transformation embodied in the values which are part of the national identity, and with a Latin American and universal vision. The State, with the participation of families and society, promotes the process of civic education in accordance with the principles contained in this Constitution and in the laws.

965.          The State informed that education is understood to offer comprehensive and ongoing quality, based on equal opportunity and a level playing field constrained only by the aptitudes, vocations, and aspirations of individuals themselves. Education is mandatory from kindergarten through various streams of middle school, and is free up to graduation from high school, or the equivalent level immediately preceding college entrance. To that end, the State guarantees in its Constitution access to the system and ongoing study through completion of the course (Article 103), teacher tenure (Article 104), and the autonomy of the university, as well as the inviolability of its campus (Article 109).

966.          Articles 112 to 118 of the Constitution address economic rights and guarantee an individual’s freedom to opt for the economic activity of his choice, the right to property, and the right to enjoy quality goods and services, among others.

967.          The State has also informed the Commission that in its efforts to protect economic, social, and cultural rights, it has sought to “enact legislation geared to providing such protection, to wit: the Organic Law on the Social Security System; the Procurement of Housing and Habitat Law; the Organic Law on Preservation of Conditions Conducive to a Viable Working Environment; and the Law on Demarcation and Guarantee of Indigenous Peoples’ Lands and Habitat, among other instruments that emphasize the social rights of the population at large as a means to attain improved quality of life.”[852]

968.          Beyond promoting programs and standards to foster economic, social, and cultural rights, appropriate mechanisms must be devised to bring to justice cases arising from such rights. As to claims brought under color of economic, social, and cultural rights in Venezuela, the State points out the existence of established constitutional remedies such as the right of amparo and of habeas data, among others, which provide the necessary mechanisms whereby Venezuelan citizens can enforce these rights. In that respect, the State underscores the importance ascribed by the 1999 Constitution to social rights conceived as essential human rights, independent of an individual’s social or economic status.

969.          Thus, the State noted, the Constitution enshrines the rights to education, health, housing, and universal social security. It was pointed out that constitutional guarantees are likewise provided to ensure their observance can be claimed effectively. It lists the following, among others: state guaranteed access to social and credit policies governing housing (Article 82); a guaranteed free health system coupled with the budgetary appropriations necessary to meet established health goals (Articles 84 and 85); the guarantee that social security funds will not be allocated to other ends (Article 86); guaranteed adequate funding of educational institutions and services (Article 103); and guaranteed nullity of managerial action deemed unconstitutional (Article 89).[853]

970.          The IACHR recognizes the normative progress achieved with regard to the promotion and protection of economic, social, and cultural rights. But it also observes that Venezuela has yet to ratify the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (“Protocol of San Salvador”), under which instrument States Parties undertake to adopt the necessary measures, especially economic and technical, to the extent allowed by their available resources, and taking into account their degree of development, for the purpose of achieving progressively and pursuant to their domestic legislation, the full observance of economic, social, and cultural rights. The Protocol of San Salvador was signed by Venezuela on January 27, 1989. It was subsequently debated and approved by the National Assembly in March 2005, and published on May 23, 2005 in the Official Gazette of the Bolivarian Republic of Venezuela under number 38.192. Nonetheless, as of the date of adoption of the report, the State has not yet ratified that instrument before the Organization of American States. The IACHR appeals to Venezuela to complete the process of ratification of the Protocol of San Salvador.

B.        Economic, social, and cultural rights indicators in Venezuela

971.          The State has addressed the IACHR on several occasions to communicate the achievements of the present government, particularly in relation to the exercise of economic, social, and cultural rights.[854] In light of information received, the Commission recognizes and values progress made in the ambit of economic, social, and cultural rights as a result of policies and measures aimed at correcting the weaknesses burdening vast sectors of the population. The priority accorded by the State to such measures is essential to promote a decent life among all Venezuelans, and constitutes a fundamental basis for the maintenance of democratic stability.

972.          The State has highlighted the literacy of the majority of Venezuelan society, the reduction of poverty, health coverage for the most vulnerable, the reduction of unemployment, the improvement in student nutrition programs, the drop in infant and child mortality rates, and the rise in citizens’ access to basic public services.

973.          The State has also informed the IACHR that food consumption has increased in Venezuela and that the right to food is now being guaranteed. Among other improvements, the purchasing power of the minimum wage has been restored with respect to basic foodstuffs; the pension and retirement system has been strengthened; steps are being taken to attend to the needs of a public that demands decent housing; and unemployment continues its downward trend.[855]

974.          Based on the above, the State has underscored the fact that Venezuela is one of the countries that has done most to meet the Millennium Development Goals[856] by the 2015 target date, and affirms that Venezuelan reality has improved significantly over the past 10 years when measured against the Human Development Index[857] used by the United Nations Development Program (UNDP), predicated on a composite of diverse rates including literacy, school matriculation, health, and life expectancy at birth. The State points to the latest UNDP figures for 2006 that give Venezuela a Human Development Index of 0.826, compared to 0.810 for 2004, and 0.776 for 2000.[858]

975.          Information provided by the State of Venezuela on indicators reflecting economic, social, and cultural rights, among others, show that:

·              The National Human Development Index increased by 27.7% from 1998 to 2007;

·              The Gini[859] Coefficient dropped by 13.7% from 1998 to 2007;

·              Social expenditure rose from 47.9% of overall expenditure in 1998 to 59. 5% in 2006;

·              Health expenditure rose from 8% of overall expenditure in 1998 to 12.4% in 2007;

·              Social security expenditure rose from 7.2% in 1998 to 14% in 2007;

·              Social development and participation expenditure rose from 4.7% in 1998 to 7.2% in 2007;

·              The average inflation rate over the period President Chavez has been in power has been 19.5%;

·              The unemployment rate has fallen from 14.7% in 1999 to 7.2% in 2008.

976.          The State affirms that its policies have fostered social inclusion, respect for human dignity, and equality among the various sectors of society. In addition, the State presented the Commission with a set of quantitative and progress indicators regarding economic, social, and cultural rights in Venezuela. In the following sections of this report, the IACHR will analyze the information provided with respect to poverty reduction, access to quality education, and the extent to which optimum levels of health have been attained.

1.         Poverty reduction and eradication of extreme poverty

977.          The Inter-American Democratic Charter observes that democracy and economic and social development are interdependent and mutually reinforcing. In addition, the Charter also asserts the obligation of Member States of the OAS to adopt and implement all measures necessary for the generation of productive employment, poverty reduction, and the eradication of extreme poverty.[860]

978.          In that regard, the State underscores that decreased extreme poverty represents its greatest achievement. It points out, per research carried out by the National Statistics Institute, that in 2003, 29.8% of the Venezuelan population lived in conditions of extreme poverty, and that while the goal was to bring that figure down to 12.5% by the year 2015, Venezuela had managed to meet the target by the first semester of 2006. The State likewise affirms that mid-way through 2009 Venezuela lowered that indicator[861] to 7%. As a result, the number of extremely poor households fell from 985,270 in 1998 to 453,458 in 2009, a drop of 54%.[862]

979.          Beyond slashing extreme poverty, the State notes that the present administration is known for maintaining a downward trend in the level of poverty, as evidenced by the fact that poverty in Venezuela moved from 49% in the first half of 1998 to 26.4% during the same period in 2009.[863]

980.          The State affirms that reduced disparities in income distribution are what account for the drop in poverty. It maintains that the income disparity index reflected in the Gini coefficient, which tracks differences in household income distribution, was 0.4865 in 1998 while 0.4068 in 2009. This makes Venezuela the country in Latin America today with the lowest Gini coefficient. Among the principal causes of this lowered coefficient, the State notes increases to the minimum wage from $185 in 1998 to $409 in 2009; rising numbers of pensioners, as well as adjustments to the minimum wage they received; direct monetary transfers to the population flowing from such social policies as scholarships; the equating of rural and urban minimum wages; and increased numbers of workers engaged in the formal sector of the economy.[864]

981.          In addition, the State observes that increased job opportunities were generated by a dynamic economic sector between 2004 and 2007 and the economic growth that ensued, which explains why the unemployment rate slipped to 7.1%, a factor the State deems to have had a positive impact on Venezuelan household income.[865]

982.          The IACHR notes that according to the United Nations Development Programme (UNDP) Venezuela went from the group of countries with medium human development in 2008 to the group of countries with high human development in 2009; also, Venezuela went from occupying position number 74 to position 58 in accordance with the classification of the human development index.[866] The IACHR also notes that ECLAC (the Economic Commission for Latin America and the Caribbean) placed Venezuela among the nine countries of Latin America[867] which present a significant closing of the gap separating income disparity extremes, due both to the increased share of income of the poorest groups and to the loss of the share of income of households situated at the high end of the distribution scale. Moreover, according to that institution, among those nine countries, the most marked decrease in both indicators was observed in Venezuela, calculated at 36% and 42% respectively.[868]

983.          The statistics of ECLAC confirm that Venezuela currently has the lowest Gini coefficient in Latin America.[869] According to ECLAC, the Gini coefficient in Venezuela was 0.498 in 1999 and dropped to 0.427 in 2007. The same organization analyzes the poverty and indigence gap,[870] indicating that this coefficient was 22.6 in 1999 and fell to 10.2 in 2007. According to the statistics of this organization, the total percentage of persons in a situation of poverty or indigence was 49.4% in 1999 and dropped to 28.5% in 2007.[871]

984.          One right closely linked to State efforts to eradicate poverty is the right to decent housing.  Data from the National Statistics Institute (INE, by its Spanish acronym) puts Venezuela’s housing deficit at 1.8 million homes, while 60% of existing stock must be refurbished or improved. If the calculation includes high-risk housing or housing with inadequate services located in less desirable neighborhoods, the deficit then climbs to 2.5 million.[872] To redress this situation, the State implemented Mission Habitat, which aims to build homes and offer the means by which families—especially those in the low-income bracket—can benefit from social policies and tap credit available for home construction, acquisition, and improvement.

985.          In that regard, at a March 2009 hearing of the IACHR,[873] civil society organizations expressed recognition for State action geared toward regularizing property ownership in urban low-income housing conglomerates, drafting standards to protect mortgage-holders, and reducing the minimum amount required to obtain housing loans. They stressed nonetheless that the current housing deficit approaches 3 million, which means that approximately 13 million Venezuelan men and women are unable to exercise the right to decent housing. They also regretted how hard it is to access information on the subject, since neither the Ministry for Housing nor the National Statistics Institute post reports subsequent to 2006 on their Web sites.[874]

986.          The Commission observes in that connection that within the framework of the Enabling Act three decree-laws were passed regarding this right: reforms to the Law on Housing and Habitat Loans; the National Housing Institute Law; and the Law on Reorganization of the National Housing Institute. Article 3 of the recently adopted Law on Housing and Habitat Loans establishes that “all goods and services apt to be involved in the planning, production, and consumption of housing and habitat” are matters of public utility and social interest. While the State affirms that the measure is meant to ensure the social orientation of activities within the sector and to promote the availability and affordability of housing, the IACHR considers that the provision is couched in overly broad and generic terms that might be construed as inimical to right to private property. The Commission would urge the State to remember that rights are interdependent and that no single right can be promoted at the expense of another.

987.          Information presented to the Commission notes, on the other hand, that “lesser degrees of poverty have not translated ostensibly into improved quality of life for Venezuelan families, particularly at lower income levels, since inefficiencies and ineffectiveness of public administration continue to be the object of debate, challenge, and protest.”[875]

988.          The Commission values positively the information shared by the State about social programs aimed at resolving the structural problems of inequity and discrimination that exist in Venezuela. It recognizes that the State has undertaken huge efforts to redress the structural imbalances that affect the population, as evidenced by significantly improved indicators tracking progress in the eradication of poverty. With this in mind, the Commission exhorts the State to adopt policies that will sustain such efforts in the long run and may contribute to overcoming the obstacles that stand in the way of people’s enjoyment of a better quality of life in Venezuela.

2.         The right to education

989.          The Inter-American Democratic Charter recognizes in its preamble that education is an effective means to promote citizens’ awareness of their own countries, thereby fostering meaningful participation in their respective decision-making processes. The instrument also reaffirms the importance of human resource development in the construction of a solid democratic system.

990.          In Article 16, moreover, the Democratic Charter establishes that education is key to strengthening democratic institutions, promoting the development of human potential, fighting poverty, and generating greater understanding among peoples. To attain these goals, it is essential that quality education be within the reach of all, including girls and women, rural dwellers, and minorities.

991.          The State emphasizes in that regard that one of its chief achievements in respect of the right to education is the significant increase in the school enrollment rate in Venezuela. We are informed that in 1998, pre-school enrollment was estimated at 43.38% and reached 66.18% in 2008. As to primary school matriculation, the figure was 86.24% in 1998, climbing to 93.12% in 2008. The State notes in addition that similar increases were tracked in secondary schools where the enrollment rate rose from 46.8% in 1998 to 68.1% in 2008.[876] If Venezuela maintains this trend, the State observes, the country will reach the goal of universal basic education before 2015, thereby meeting another Millennium Development Goal.[877]

992.          The State points out that between the 1998-1999 and 2005-2006 school years, an increase in the net enrollment rate was noted at all levels of education. Data provided by the State shows pre-school net enrollment up by 14.3 percentage points; basic education saw net enrollment rise by 9.1 percentage points; while the net enrollment rate at middle, diversified, and professional/vocational schools increased by 11.7 percentage points.

993.          As to public investment in education, the State reports it used to be less than 3% of the Gross Domestic Product (GDP), whereas the figure from 2004 to 2006 including allocations to the Ministries of Education and Higher Education surpasses 6.1% of GDP. The actual percentage has varied from year to year, it is explained, but the average has remained at 4.6%.[878]

994.          On a separate note, the State affirms that attention to the physical infrastructure of schools is essential to any educational system. During 2001-2005, over 500 facilities were constructed and 6,903 were attended to, not counting investments made by national bodies and state and municipal authorities. Over that period of time, the State was attended to more than 7,500 school buildings.[879]

995.          The State declares it has implemented programs to assert the right to education in all sectors, mainly by promoting the notion that education should be cost-free, accessible, and of quality. Among the State’s principal achievements, the following were noted: elimination of any matriculation fee at all official educational centers; establishment of the School Food Program; increased public resources earmarked for education; lowered levels of school exclusion and drop-out rates from pre-school through sixth grade; refurbishment of school buildings to optimize teaching; comprehensive student care to enhance the learning experience afforded through daily 8-hour sessions, medical assistance, and nutrition guidance services which provide breakfast, lunch, and an afternoon snack; and, finally, higher matriculation at the Robinsonian Technical Schools between 1999 and 2006.

996.          The State reports that its commitment to guaranteeing education for all is evident not only in strides made towards that end regarding primary education, but also in respect to eradicating illiteracy in the country. The government’s literacy policy focused on the launch in 2002 of the National Literacy Plan through which 19,621 persons learned to read in two years. Given these results and the fact that illiteracy rate in the country was 1.5 million people in 2003, the Ministry of Education and Sports was tasked in 2003 with implementing the Cuban method “Yes I Can” within the framework of Mission Robinson I.

997.          The development of educational missions is one of its stellar achievements, the State points out, in that such missions function as inclusion mechanisms that make the right to education real for the population that, year after year, had stayed away from school. Information provided by the State indicates that access to these programs hinges only on “having the will to learn, to continue the education that was interrupted, at educational centers that offer the help of the mission closest at hand.”[880] Armed with the “Yes I Can” program as implemented by Mission Robinson I, the State helped 1,484,543 Venezuelans learn to read, thereby pushing the illiteracy rate below 1%--a milestone heralded by UNESCO, which on October 28, 2005 declared Venezuela “a land free of illiteracy.”

998.          The State explains, in addition, that its efforts have gone beyond eradicating illiteracy in Venezuela. To benefit the graduates of Mission Robinson I, as well as those who were unable to complete their elementary education, the State launched Mission Robinson II on October 28, 2003 aimed at ensuring that all students graduate from sixth grade and consolidate their grasp of concepts acquired while achieving literacy. The program also aims to offer new training opportunities such as the study of agricultural practices in which, State data shows that by 2006 a total of 1.215,427 persons had enrolled in 106,861 schools offering the course. In addition, 98,760 individuals were awarded scholarships.[881]

999.          The State set up another program for adults wishing to complete their baccalaureate studies. Known as the Ribas Mission, the program was launched in November of 2003 under the slogan “Must Win.” The State affirms that approximately 536,802 “winners” have been recruited into the Mission ranks thus far to tackle their unfinished baccalaureate on the basis of “a specially designed format tailored to meet adult needs, taking into account the constraint of obligations, independence, the pace of individual development, and the desire for personal achievement.” Available data describe a program involving more than 32,314 facilitators and 5,640 coordinators operating out of 33,046 classrooms and 7,483 establishments. The State expects that by end of 2007 the Mission will have awarded 339,418 baccalaureate degrees.[882]

1000.      The State advises too that it has deployed efforts to offer all baccalaureate degree-holders who wish to enter university the chance to do so. It explains that “Mission Sucre was born to slice through circles of exclusion by means of an advanced educational degree.” It concludes that Mission Sucre is likely the most transcendental project ever undertaken in Venezuela in the context of higher education. As of January 2007, approximately 307,916 “winners” were enrolled in training courses. The number of new enrollees for academic year 2007-2008 was 110,863 involving 2,393 trainers and 20,781 professors working out of 1,405 classrooms.[883]

1001.      The State confirms that its programs have also benefited women, indigenous people, persons deprived of liberty, and persons suffering from visual impairment. As to women’s education, the State notes that women outnumber men at the university level. From 1990 to 1998, the number of female students matriculated in traditional coursework increased by 31.25%, while the percentage of women enrollees from 1999 to 2006 reached 47.56%.[884]

1002.      As to the indigenous population, we are informed that Mission Robinson has launched literacy campaigns among indigenous people in the states of Amazonas, Anzoátegui, Apure, Bolivar, Delta Amacuro, Monagas, Sucre, and Zulia, thereby channeling assistance to some among the most underprivileged sectors in the country. In the State’s own words, “teaching indigenous peoples how to read and write represents one of the greatest challenges the Mission has faced, since doing so necessitated the translation of texts into such indigenous languages as Jivi, Ye’kwana, Kariña, and Warao.”[885] The State stresses that of 1,482,453 persons who have benefited from the Robinson Mission Literacy Campaign, 70,000 are indigenous.

1003.      Another factor the state points out is that, from the outset, Mission Robinson “has served as a spearhead for inclusion of the penitentiary population in Venezuela’s Educational System, thereby fostering literacy, completion of elementary education through sixth grade and beyond, through the Ribas and Sucre Missions, for all the men and women behind bars who might wish to avail themselves of the opportunity.” The literacy mission reached out to 1,554 inmates, i.e., 100% of the jailed illiterate population.[886]

1004.      Finally, regarding the population suffering from impaired vision, the State maintains that the “Yes I Can” enrollment card was printed in Braille, along with teaching manuals specifically designed for the visually challenged.[887] The State informs that of the 1,482,453 individuals who have participated in the Robinson Mission Literacy Campaign, 7,500 are persons with diverse disabilities.

1005.      The Office of the Human Rights Ombudsman also observes that there has been movement towards, and a gradual recognition of, the right to education among persons with disabilities, stressing the fact that enrollment in special education courses for academic year 2001-2002 was 178,730 in the public sector, as against 5,050 in the private. Meanwhile, in academic year 2006-2007, those numbers climbed to 516,593 and 13,610 in the public and private sectors, respectively. The organization goes on to note that such figures mirror not only the scope of education being offered on the basis of varying modalities, but also the trend toward growing recognition of the human rights of persons with disabilities, the search for novel systems of education, and the reassessment of education within the Venezuelan population at large.[888]

1006.      For their part, petitioner organizations[889] present at the Hearing on the State of Economic, Social, and Cultural Rights in Venezuela, held before the IACHR on March 24, 2009 within the framework of the 134^th Period of Sessions, recognized in connection with the right to education that since 1999 the State has made great efforts to improve the availability and accessibility of education, both through mainstream programs and through work of missions.

1007.      On the subject of availability it was mentioned that new public education establishments were built and that existing infrastructure has been refurbished in a sustainable manner. As to accessibility, there was agreement that enrollment rates at all levels have risen significantly[890] and that the Robinson, Ribas, and Sucre Missions have done much to facilitate improved access to education by a population that historically had been excluded from basic elementary schooling.

1008.      Petitioners also affirmed that Venezuelans today enjoy higher levels of education than ten years ago, and that Venezuela boasts one of the top places in the hemispheric ranking of university and graduate enrollment. The provision of education free of charge confirmed as a matter of public policy was also praised. The State’s efforts to offer bilingual cultural education were likewise lauded, as was the move to bring higher education to the townships as a means of making it available to those who live far from great urban centers.

1009.      Nonetheless, petitioners observed that there are still insufficient pre-school classrooms, and that space availability beyond sixth grade continues to pose a problem since nearly 60% of existing establishments offer education through that grade only. At the same time, despite progress, the Commission learned at the hearing that considerable exclusion persists among a significant number of children: 37.6% of those between the ages of 3 and 5 (roughly 640,000); 4.7% aged between 6 and 11 (200,000); 10.4% aged between 12 and 14 (170,000); and 57.1% youngsters between 15 and 17 years of age (948,000).

1010.      It was also pointed out that certain discriminatory practices had been noted for political reasons, chiefly during the course of educational missions where campaigns have been orchestrated to serve the purposes of parties supporting the government. Petitioner organizations attending the hearing likewise expressed concern for the quality of education, remarking that Venezuela has not carried out any national assessment of its teaching standards since 1988, and that 22.6% of teachers have no academic credentials.[891]

1011.      In the same vein, the Office of the Human Rights Ombudsman observed in its last Annual Report that enrollment data show positive results as to a broadening and consolidation of matriculation across the country and at all levels. The gross enrollment rate rose at every level, with the greatest increase registered at 60.6% in academic year 2006-2007 among children of 3 to 6 years of age, as against 52.2% during 2001-2002. The Ombudsman’s Office also underscored a hike in the gross rate of elementary school enrollment estimated at 99.5% among children of 7 to 12 years over academic year 2005-2006.

1012.      The Office of the Human Rights Ombudsman stressed, however, the importance of continuing efforts with respect to middle school, as well as diverse and professional education, given that over academic year 2006-2007, only 35.9% coverage was attained nationally. It also observed that much greater effort must be put into cutting the dropout rate, calculated to be 10.5% at that level for the year 2004-2005. The main reasons for dropping out of school are loss of interest in learning; the need to find a job; and pregnancy, among others.[892]

1013.      The Commission places great store by State progress achieved in making the right to education universal, and exhorts the State to continue such efforts with due regard for the quality of education and bearing in mind the challenges that have been remarked upon by civil society organizations as well as by the Office of the Human Rights Ombudsman regarding the state of education in Venezuela.

1014.      Equally, the Commission has followed attentively the expressions of concern regarding the new Organic Law of Education enacted in August 2009.[893] In the chapter on freedom of expression, the Commission already expressed some considerations on how this piece of legislation could affect that right. Next, the Commission will consider the new Organic Law on Education and its relation with the right to education.

1015.      From a reading of the new Organic Law on Education, the IACHR notes that this legislation has a clear orientation towards certain principles and values that, according to what it establishes, must regulate everything related to education in Venezuela. For example, this law provides that education “is based on the doctrine of our Liberator, Simón Bolívar, on the doctrine of Simón Rodríguez, on social humanism and is open to all schools of thought” (Article 14). It adds that environmental education, the teaching of the Spanish language, the history and geography of Venezuela, as well as the principles of bolivarian ideology are obligatory, in public and private educational institutions and centers (Article 14).

1016.      The Commission also observes that the law under analysis grants state bodies a broad margin of control with respect to the implementation of the principles and values that must guide education. This is achieved though the establishment of “The Docent State”, which means that, through national organs competent in the field, the State plays the role of rector of the educational system (Article 6) and, therefore, exercises full regulation, supervision, and control of the system, among other functions, stipulating oversight in such matters as: “the mandatory provision of education in the doctrine of our Liberator Simón Bolivar; the Castilian tongue; Venezuelan history and geography; an enabling environment within public and private institutions and centers of learning, including general and technical secondary-level education;” “the establishment and running of public and private institutions and centers of learning; the appropriateness of natural or legal persons to fulfill requirements regarding ethics, economics, academic and scientific issues, questions of probity, efficiency, legitimacy, and the sources of private institutional funding and maintenance;” “procedures governing public and private sector teacher recruitment, tenure, promotion, staff development and performance in consonance with comprehensive evaluation criteria and methods and the oversight of society;” “the academic fitness of teaching staff recruited by institutions, centers, or any public or private educational establishment affiliated with the subsystem of elementary education, the aim of which is to promote teaching and learning methods in the Educational System that are socially relevant as prescribed by the special law enacted to regulate the field;” “matriculation, fees, raises, administrative taxes and services, payable by students or by their representatives or guardians, applicable in all private educational institutions.”

1017.      The Commission also notes that the law is characterized by the ambiguity and broadness with which some of its dispositions are drafted, as well as the reference to subsequent norms that will be issued to regulate and implement various precepts. For example, in Article 10, all educational institutions and centers in the country are prohibited from publishing and divulging messages that commit an outrage against values, morals, ethics, good manners, or that promote harm to democratic principles, national sovereignty, and national, regional, and local identity. And in Article 11, all educational institutions and centers, public and private, are prohibited from disseminating ideas and doctrines contrary to national sovereignty and to the principles and values consecrated in the Constitution of the Republic.

1018.      The Commission considers that there are different ways to understand the content of concepts like morals, good manners, or national sovereignty and therefore there is a broad margin within which these subsequent laws can establish restrictions to various rights under the Convention, such as the right to education, to freedom of expression, and to the freedom of conscience of educators and students, among others. Additionally, the Commission notes that even though Article 36 establishes academic freedom, it makes it subject to the principles established in the Constitution and in the law. Thus, it is perfectly possible that, through a subsequent law, academic freedom will be unduly limited. Furthermore, the Commission considers that academic freedom must include the possibility of discussing the principles contained in a norm like the Constitution with the full freedom to support them or refute them. In this sense, the IACHR will remain attentive to the legislation passed to develop the norms contained in the Organic Law on Education and urges the State to respect the fundamental rights contained in the Convention in this.

1019.      Finally, the Commission notes that until laws regulating the precepts contained in the Organic Law on Education are passed, the interim provisions give authorities overly broad powers over schools and educational authorities. Of special concern for the IACHR is the first interim disposition, which allows the Ministry of Popular Power for Education to close or demand the reorganization of private educational institutions in which principles established in the Constitution and this Law are attacked. This disposition adds that proprietors, directors, or educators that are found responsible of such acts will be disqualified for up to ten years from holding teaching or administrative positions in any school, during which time they cannot found or direct by themselves or through intermediaries any educational establishment.      

1020.      Taking into account the large quantity of dispositions in this law that are drafted in an ambiguous or broad manner, this interim disposition could permit the respective Ministry to close private educational institutions that, in its judgment, attack the principles of “bolivarian ideology” or “social humanism” or promote ideas contrary to those which, in its judgment, form part of the sovereignty of the nation.   

1021.      In this form, the Commission considers that the Organic Law on Education does not contain sufficient provisions with respect to possible abuses of authority and recommends that the State eliminate or reform those provisions in this law that, due to their ambiguity or broadness, could result in a lack of recognition of other human rights. The Commission also recommends that the State adopt the necessary measures to guarantee that private educational institutions have the freedom to teach concepts from all schools of thought, including religious thought. At the same time, the Commission urges the State to limit the interim powers granted to the Ministry of Education with the aim of preventing the implementation of this legislation from threatening the fundamental rights of individuals. Finally, the Commission reiterates its concerns set forth in the chapter on freedom of expression with respect to the Organic Law on Education. 

3.         The right to health

1022.      The right to health is construed as people’s right to enjoy the highest level of physical, mental, and social wellbeing. Health must be recognized as a public good, and states should put essential medical assistance within everyone’s reach as well as extend the benefits of health care to all individuals under their jurisdiction.

1023.      With regard to the right to health in Venezuela, the State indicates that its policy strategy is geared towards prevention; reducing mortality and morbidity arising from common illness; the timely and effective fight against endemic diseases; and promotion of a health care system that is effective, inclusive, and participatory, along with a drug policy aimed at bringing down costs and ensuring access to medication by all segments of the population.[894]

1024.      The main achievements attained by the State, it reports, include, among others, the reduction of infant mortality from 25% in 1990 to 13.7% in 2007;[895] the increase from 80% to 92% in the number of persons with access to potable drinking water; and the increase in the number of children benefiting from the School Food Program, up from 252,284 in 1999 to 3,996,427 in 2007. Statistics provided by the State show, moreover, that free medical assistance in 1998 was estimated at 21%, with 20 doctors per 100,000 inhabitants; by the year 2007, medical coverage extended free of charge had climbed to 95%, with a rate of 59.3 doctors attending that same segment of the population.[896]

1025.      As to infant mortality in Venezuela, the State informs that it has adopted policies to reduce it. An example of such policies is Project Mother, promoting a healthy life style from adolescence onwards; its focus on the right to sexual and reproductive health seeks to improve family planning and to provide appropriate guidance and care to pregnant women. The project serves also to ascribe fundamental priority to the promotion of child health in such respects as breastfeeding, adequate complementary nutrition, and inoculation to prevent disease.

1026.      According to the State, it is these actions which made it possible to bring the infant mortality rate down to 13.7 per 1,000 live births registered in 2007,[897] a figure that highlights a remarkable drop of 7.7 percentage points compared with available data for 1998.[898] As to post-natal mortality rates, the State observes here too that there has been a decrease reflected in the move from a rate of 6.2 in 2000 to 4.7 in 2005. It points out in addition that maternal mortality has had virtually constant pattern: 57.8 maternal deaths per 100,000 registered live births in 2003, compared to 59.9 in 2005. The State confirms that Project Mother was conceived specifically to address that situation.[899] Likewise, the State indicates that life expectancy in Venezuela has progressed gradually and was estimated at 73.5 years in 2007.[900]

1027.      The State notes that in 1998 social expenditure on health was 1.36%, and that the figure rose by 2007 to 2.25%. It explains that the health system is predicated on principles ensuring that services are free of charge; universally available; comprehensive; fair and inclusive; and geared towards social inclusion and solidarity.[901] As to infrastructure, the State indicates that by 2007 11,373 primary health care units were operational showing progress compared to the level of care available in 1999, estimated then at 4,804 units.[902]

1028.      In like manner, the State underscores the fact that community health programs such as Barrio Adentro I, II, and III seek to provide free and ongoing medical attention to the most vulnerable sectors of the population. It says measures taken within the scope of Barrio Adentro Missions I and II have resulted in saving 347,789 lives from April 2003 through 2008. It also notes that 3,499 community clinics were built and handed to municipalities, as were 406 comprehensive diagnostic centers, 493 comprehensive rehabilitation rooms, and 18 centers offering advanced technology for highly complex and expensive testing available free of charge.[903]

1029.      The State also emphasizes the fact that over its 5 years in operation, the Barrio Adentro Mission has carried out 284 million medical consultations. It affirms that while previous governments in Venezuela had provided a scarce 20 physicians per 100,000 inhabitants, currently that number has risen to 60 per 100,000 practicing throughout the country.[904]

1030.      In addition, the State indicates that Mission Barrio Adentro III, whose purpose has been to rehabilitate, equip, and fund hospital centers, has already benefited a considerable number of hospitals by strengthening their capacity to offer emergency services. In 2006, hospital capacity covered 7 million emergency patients; 6 million attended on an outpatient basis; and over 300,000 surgical interventions.[905]

1031.      Regarding the free distribution of medication, the State points to an increase from 335 patients under care in 1999 to 21,779 patients seen throughout 2007. It also states that yellow fever outbursts have been met with massive vaccination campaigns during which over 10 million people have been inoculated in the past three years. Lives that would otherwise be lost to yellow fever have been saved in the process.[906]

1032.      One of the principle achievements highlighted by the State in the field of collective health is the adoption since 1999 of a policy framework fostering access to anti-retroviral drug regimens available to all cost-free. Data provided by the State show that by end 2007, 21,262 persons living with HIV/AIDS in Venezuela had been administered highly effective triple therapy. According to this information, Venezuela promotes “universal access to quality antiretroviral treatment to all patients who request it, regulating distribution based on principles that ensure it is provided cost-free, tamper-free, in a manner that is fair, inclusive, mindful of social integration, and non-discriminatory.” Beyond the administration of antiretroviral therapy, the State confirms that its policy also covers the provision of medication needed to fight opportunistic diseases that often afflict persons living with HIV/AIDS, as well as medications for sexually transmitted diseases, at the national level. It also informs that pregnant women receive specialized care throughout gestation and at labor, including surgical equipment made available as safeguards when Caesarean sections or substitution of breastfeeding is indicated.[907]

1033.      The State refers to another factor that it considers a positive influence on the right to health: the launching of Mission Nutrition that is paving the way towards reaching the “Zero Hunger” development goal by 2015 through programs providing 100% of the foodstuffs required by the most vulnerable sectors of the population.[908] According to the State, Mission Nutrition and MERCAL[909] make food available to Venezuelans at affordable prices, thereby meeting the most pressing needs of the poor.

1034.      The right to water is closely linked to the right to health. In that regard, the State says that over 7 million Venezuelan citizens have obtained access to potable water over the past 8 years as a result of expenditure intended in the medium term to provide 100% coverage of this utility. The State recalls that United Nations Member States have committed to Millennium Development Goals requiring them to reduce by half the number of persons in the world deprived of access to drinking water and basic sanitation by 2015.

1035.      To that end, the State has hired over 7 million sanitation workers and connected over 6 million inhabitants to drinking water networks, thereby providing 95% coverage in urban centers and 79% in the rural area. The goal is to achieve 100% capacity coverage by 2010.[910] Another noteworthy step forward in this regard, according to data presented, is the provision of 82% of the amount of water needed for sanitation, while the collection of used water rose from 62% in 1999 to 82% in 2008 and used water treatment jumped from 9% to 27% in 2009.[911]

1036.      Regarding the right to health, information provided to the Commission[912] by Venezuelan human rights organizations recognizes that progress has been made under a number of rubrics such as coverage, but that deficiencies requiring correction continue to exist.

1037.      In addition, the IACHR has heard expressions of concern related to the legislative lag that stems from the lack of any legislation introduced on the subject of health since enactment of the 1999 Constitution. On that point, according to data presented to the Commission, despite constitutional recognition accorded to the right to health, a number of obstacles curtail its exercise since the National Assembly has yet to adopt a Healthcare Law setting forth the premises of universality, quality, equity, and equal opportunity, nor has it legislated on the obligations assumed by a National Public Health System that is cross-cutting as to sectors, decentralized, participatory, and duly integrated into the social security system as stipulated in the Constitution.[913] This concern over the failure to introduce a draft Healthcare Law is shared by Office of the Human Rights Ombudsman that considers such legislation “necessary to the appropriate articulation of guidelines to underpin a National Public Health System.”[914]

1038.      The Commission was also informed that the public health system is divided into three parts: on one hand, public care provided through a system decentralized across 17 states and incorporated into the Ministry of Health in 7 of these; on the other, public care provided by the Venezuelan Social Security System; and, finally, care provided by the Barrio Adentro System I and II through medical clinics offering comprehensive community services, diagnostic centers, operating theaters, and rehabilitation rooms designed to support such clinics.

1039.      It thus appears, per information received, that services provided by the different stages of Barrio Adentro involvement do not replace services rendered by ambulatory health clinics and regional and national hospital centers but operate instead in parallel to them, sometimes at a deficit. This causes duplication of efforts and public expenditure in the health sector. The Commission has noted concern that such fragmentation proves an obstacle to effective health care delivery and makes it difficult to compile a comprehensive analysis of its overall performance.[915]

1040.      Information conveyed to the Commission also shows Venezuela has witnessed a sustained decrease in its rate of infant mortality. Clarification is nonetheless given to the effect that neonatal deaths arising from care during pregnancy and medical attention remain steady; moreover, maternal death is on the rise. News of outbreaks of preventable disease was noted, as well as significant increases over recent years in cases of malaria, dengue, respiratory infections, tuberculosis, and parotiditis.[916]

1041.      In addition, although civil society organizations have recognized the contribution of Mission Barrio Adentro to expansion of the medical ranks in the poorest sectors, the IACHR was informed that such efforts have not sufficed to offset deficiencies in the public health system. It was mentioned, likewise, that since 2005, a number of establishments have closed due to insufficient numbers of medical staff, inadequate refurbishment of infrastructure, and deterioration of the physical and operational capacity of these health centers.[917]

1042.      In its most recent Annual Report, the Office of the Human Rights Ombudsman also emphasizes the urgent need to tackle the deficit in health care professionals registered nationally throughout the public health system; to carry out structural repairs still required in some health centers and to wrap up those underway in others, including an overhaul of damaged medical equipment; and to take the necessary measures to ensure coordination between Mission Barrio Adentro and the other stakeholders of the National Public Health System.[918]

1043.      In fact, even the President of the Republic has recognized some of the deficiencies undermining the health sector in Venezuela. In recent statements, he concurred that no doctors as yet staff 2,000 of the modules under Barrio Adentro’s purview, adding, “We have a social emergency on our hands: that is health. So let’s declare an emergency!”[919]

1044.      The Commission views positively the efforts deployed by the State to promote universal access to the health system, while appreciating recognition by the executive branch that significant challenges exist that require attention urgently in order that the right to health in Venezuela be fully satisfied. The Commission will be attentive to immediate measures that the State may take to correct the current deficiencies in the health system and reiterates the importance of adopting pubic policies to guarantee the right to health in the long run.

C.        The role of the missions as an axis of social policy

1045.      As indicated in previous paragraphs, the principal State programs tasked with promoting economic, social, and cultural rights in Venezuela have been conceived in the guise of Missions. Different types of Missions exist. Some have an educational purpose seeking to eradicate illiteracy (Mission Robinson); some impart elementary education (Mission Ribas); some provide access to university studies (Mission Sucre). Others are entrusted with the provision of basic services such as affording efficient ambulatory care units and related medical assistance to poor segments of the population (Mission Barrio Adentro). Still others grapple with housing (Mission Habitat) or the distribution of basic commodities at the lowest possible prices (Mission Nutrition). In addition, there are Missions whose objective it is to improve the lot of minority or marginalized ethnic groups (Mission Guaicaipuro); to see to the needs of street children (Mission Boys and Girls of the Barrio); to provide personal identification documents (Mission I.D.); to promote agricultural activities (Mission Return to the Farm); to foster environmental sustainability (Mission Tree); to distribute dental prostheses (Mission Smile); and to extend basic care to persons with disabilities (Mission Gregorio Hernandez), among other objectives. Information presented by the State indicates that approximately 48.3% of the population has benefited from such governmental Missions.

1046.      The State has sought by this means to meet the most pressing needs of the poor in Venezuela. The deployment of Missions functions as a system to implement basic strategic methods of social inclusion, on a massive scale and a fast track, aimed at overcoming social inequality and poverty in the country. The State notes the fundamental role played by Missions in promoting a better quality of life and full-fledged integration for all.

1047.      The IACHR values the considerable expenditure the State has made in such programs that target inclusion of the most vulnerable sectors. In the Commission’s judgment, the positive results obtained by such State policies are evident in the indicators on effectiveness and progress made in asserting economic, social, and cultural rights in Venezuela, some of which were emphasized in preceding paragraphs. The IACHR notes in particular that by means of Missions, it has proved possible to alleviate poverty, and provide access to education and health to sectors of the population traditionally excluded in Venezuela.[920]

1048.      Notwithstanding such consideration, the Commission is concerned by some aspects entailed in use of Missions as an instrument or axis of governmental social policy. There is insufficiently clear information, for instance, regarding the criteria that serve to determine the allocation of benefits made available by the Missions. The IACHR stresses the importance of ensuring that such massive outlays of financial, material, and human resources be governed by transparent and publicly announced guidelines that make clear the terms and conditions required to for the public to avail itself of the products or services Missions offer. Likewise, the public must have easy access to information governing the allocation of resources handled by the Missions.

1049.      The lack of public information regarding what criteria are applicable to the allocation of benefits channeled through such public assistance policies gives the impression that some such policies are determined at the discretion of the executive branch. This might lead to the conclusion that some persons are not eligible for these benefits as a result of their political position vis-à-vis the government, among other reasons. The Commission emphasizes that it is critical for the State to make all relevant information available to the public in order to ensure oversight of state policies and to enable the participation of individuals or groups with regard to state action that affects individual rights. The Commission urges the State to improve transparency and to establish a clear system of accountability to the public in relation to the Missions.

1050.      The Commission also believes it is misguided to leave the Missions outside the State’s official policy framework as information received indicates this might be causing a lack of coordination between the Missions, on one hand, and regional and national public services on the other. This appears chiefly evident in the health sector. The Commission advises the State to take all necessary steps to avoid activity overlaps and parallelism among entities tasked with offering basic services to the population as these might occasion duplication of efforts and the unnecessary expenditure of State resources.

1051.      In addition, the Commission ascribes fundamental importance to corrective action that must be taken to ensure that economic, social, and cultural rights are promoted through long-term public policies that will not hinge on the good will of one government or another. The State’s obligation to adopt necessary measures, to the maximum of its available resources, for the promotion of economic, social, and cultural rights should not be met by means of circumstantial mechanisms established to solve partial or specific problems, but rather by the adoption of long-term public policies that will contribute to the progressive effectiveness of such rights and will prevail independently, regardless of the will of future governments.

1052.      Finally, while the State has indicated that the Constitution “moves beyond conceiving the satisfaction of social needs as a matter of charity or public assistance to assuming that obligation as the inalienable right of all Venezuelans,”[921] the Commission notes that the Missions as a social policy appear to constitute public assistance policies that do not necessarily imply a recognition of rights. The Commission deems appropriate to remind the State that access to education, to health, and to other basic needs does not constitute a benefit to be dispensed at the discretion of the State, at will, but represents rather a commitment which the State is obliged to meet progressively. Proof thereof is the fact that economic, social, and cultural rights are cognizable before judicial authorities and can be claimed immediately.

1053.      Given the foregoing, and bearing in mind that the promotion and protection of economic, social, and cultural rights is integral to the consolidation of democracy,[922] the Commission calls upon the State to sustain its efforts to consolidate such rights in Venezuela by adopting the measures necessary to ensure transparency of information as to criteria governing the allocation of social benefits, thereby avoiding duplication and lack of coordination between the Missions and other public service providers, as well as to safeguard the long-term continuity of policies designed to meet the needs of the Venezuelan people.

D.        Cultural rights and rights of the indigenous peoples

1054.      Among the economic, social, and cultural rights to be promoted, there exists the right to cultural identity. That is to say that culture must be protected as a way of life. States must consequently adopt such measures as are necessary to protect the identity of minorities, including the rights of indigenous peoples to speak their own language, the right to free determination, the right to be consulted regarding decisions which may affect them, the right to respect for their traditions and customs, and the right to property and possession of their ancestral lands, among others.

1055.      The State has informed the Commission that, according to the last population and housing census taken in 2001, Venezuela is home to 543,348 indigenous persons representing 2.3% of the general population. The census also shows indigenous peoples to be grouped into 613 communities. By contrast, the Ministry of Popular Power for Indigenous Peoples has identified 2,856 communities located across the nation, and more than 800,000 indigenous individuals of different ethnic backgrounds. The State affirms such figures result from a process aimed at identifying and ascribing dignity to indigenous peoples, and are due to be made official during the next official census.[923] The Organic Law on Indigenous Peoples and Communities, enacted in 2005, registers the presence of 40 indigenous groups in the land.[924]

1056.      As to the legal framework affording protection of the rights of indigenous peoples, the Constitution of Venezuela contains a chapter with provisions which recognize the existence of indigenous peoples and communities, their social, political, and economic organization, their cultures, their customs, their languages and religions, and their habitats and primordial rights over ancestral lands they have traditionally occupied, which are necessary to their development and the protection of their ways of life (Article 119); the right of indigenous peoples to maintain and develop their ethnic and cultural identity, world vision, values, spirituality, and sacred sites and rites (Article 122); the right of indigenous peoples to maintain and promote their own economic practices along with traditional techniques of production, to participate in the national economy, and to set their own priorities (Article 123); and the right of indigenous peoples to participate in politics, to be represented within the National Assembly and in deliberating bodies of federal and local entities involving the indigenous population (Article 125).

1057.      The State also points out that, in conformity with Article 3 of the Organic Law on Indigenous Peoples and Communities,[925] indigenous peoples in Venezuela are ensured the possibility of establishing their own legitimate authorities following their own social and political structures, as well as the right of participation and political activism. Beyond this norm, the Commission notes that the State has enacted several laws aimed at protecting the rights of indigenous peoples and communities in Venezuela, such as: the Law on Demarcation and the Protection of Indigenous Habitat and Lands;[926] the Law on Indigenous Languages;[927] and the Law on the Preservation, Rescue, and Dissemination of Indigenous Cultural Heritage.[928]

1.         The right to ancestral land and to cultural resources

1058.      As this Commission has pointed out, one aspect of fundamental importance to indigenous peoples and to the exercise of their rights is their attachment to the land and to natural resources. Expressing the same thought, the Inter-American Court has written that

the culture of members of indigenous communities relates to a particular way of life, of being, seeing, and interacting with the world predicated on the close relationship that links them to their traditional lands and the resources therein, not simply because these constitute the mainstay of their subsistence, but also because they form an integral part of their cosmic vision, their religiosity, and therefore, their very cultural identity.[929]

1059.      Regarding the right of indigenous peoples to their ancestral lands, the Venezuelan Constitution establishes in Article 119 the obligation of the State, with participation from indigenous peoples, to demarcate and respect the right to the collective property of their lands, adding that such lands shall be deemed indefeasible, inalienable, and unassignable.

1060.      As to natural resources, Article 120 of the Constitution stipulates that State exploitation of natural resources located within indigenous habitats shall refrain from damaging the cultural, social, and economic integrity of the same and, moreover, must be subject to prior advice to and consultation with the respective indigenous communities so affected. The text goes on to state that any benefits derived from such use by indigenous peoples will be subject to this Constitution and to the law.

1061.      The State confirmed for the Commission that it implements Article 120 of the Constitution of the Bolivarian Republic of Venezuela, as well as Articles 11 and 19 of the Organic Law of Indigenous Peoples and Communities in order to show respect for the cultural, social, and economic integrity of the indigenous peoples and communities by means of consultations and the prior approval of development projects to be carried out on indigenous lands and habitat.

1062.      On this issue, motivated by concern over the exploitation of natural resources drawn form areas inhabited by indigenous peoples in Venezuela, the Commission held a hearing to elicit information as to how legal as well as illegal mining activities affect indigenous groups in southern Venezuela. The concern was particularly linked to the effects of mining on rivers and sub-soils, both chief sources of subsistence for indigenous peoples.[930] At that hearing, the Commission learned that far to the Venezuelan south, the states of Bolivar and Amazonas are mineral-rich areas of which several locations have been taken over as concessions by mining companies without prior consultation with the indigenous communities that inhabit them, notwithstanding the environmental impact such activities wrought on their land. Beyond the extension of legal concessions, the Commission was also told how illegal mining continues to jeopardize the survival of indigenous peoples. The Commission took the opportunity to remind the State of its obligation to ensure consultation with and the participation of indigenous peoples when considering any measure that affects their territories.

1063.      Despite this, according to the Office of the Human Rights Ombudsman, a significant number of indigenous communities face ongoing attempted and actual violations of their exclusive collective rights, constitutionally enshrined in particular with regard to recognition of their ethno-cultural existence and their right to collective ownership of ancestral lands, necessary for the development and preservation of their way of life. Indeed, this body has observed that in Venezuela, throughout 2008, “one of the least respected rights was the right to prior information, to consultation and to the benefits flowing from the use of natural resources situated on indigenous lands and habitats.”[931] Office of the Human Rights Ombudsman addresses the subject with reference to several cases of prospecting and exploitation for mining and logging purposes in the states of Bolívar and Zulia.

1064.      Another issue of deep concern to the Inter-American Commission is the delay in demarcation of ancestral indigenous lands, as well as conflicts between indigenous peoples and cattle ranchers that have arisen in the absence of clearly marked boundaries. The Commission observes that, despite the language of Article 119 of the Constitution and the Twelfth Interim Provision of the Constitution,[932] the goal of completing the process of demarcation of indigenous habitats had not been met by March of 2002.

1065.      In addition to constitutional norms, the State’s obligation to see to the demarcation of land is enshrined in several Venezuelan laws. Thus, the Organic Law on Indigenous Peoples and Communities enacted on December 27, 2005 recognizes that indigenous peoples and communities possess “their habit and original rights over the ancestral land they have traditionally occupied, and exercise collective rights over the same.” Through the offices of the National Demarcation Commission as well as regional demarcation commissions, the State has the obligation to finance and oversee the demarcation of their habitats and lands. Article 7 of the Law on Demarcation and the Preservation of Indigenous Peoples’ Habitat and Land, adopted January 12, 2001, clearly stipulates that the State shall act as guarantor for the design, administration, implementation, and financing of the demarcation process.

1066.      Despite this, according to information provided by PROVEA on behalf of the Executive Secretary of the National Demarcation Commission, from 2005 through the end of 2008, a mere 34 deeds of property had been awarded, 1.6% of the total number of properties that might have been subject to demarcation. It can be fairly stated, then, that the State’s obligation to oversee the demarcation process to make effective the claim to collective property on the part of indigenous peoples is as yet a pending matter in Venezuela. Accordingly, the Commission calls on the State to take the necessary measures to give immediate effect to settled constitutional and international norms recognizing this right of indigenous peoples.

1067.      The Commission notes with grave concern that in the absence of established boundaries provided by demarcation, Venezuela has continued to experience outbursts of serious conflict arising from land ownership rights. Among other such conflicts, the Commission has followed with keen attention the situation that has arisen in the Yukpa Chaktapa community, located in the Machiques de Perijá Township in the state of Zulia. Since 2004, the community has been engaged in an organized movement to claim its ancestral lands; since then, its leaders and members “have been the victims of ongoing harassment perpetrated by cattle ranchers of the area, aimed at running them off the lands they have been reclaiming.”[933] Especially worrisome is the news that in their effort to intimidate this indigenous community, landholding ranchers may have received the support of the Army and members of the National Guard.

1068.      According to information presented by Civil Association Homo Natura, such hostilities forced some members of the Yukpa community of the Yaza River to flee to Caracas and to other cities in the center of the country where they were forced to live on the streets selling handicrafts. At the start of 2004, by order of the Offices of the Mayors of all these cities, each member of the community may have received Bs. 200,000 in exchange for their return to the Perijá Range.[934] This is an alarming situation given its implications for the rights of such indigenous peoples, particularly this community’s right to equal treatment under the law and to freedom of movement.

1069.      Available information indicates that the precarious status of the Yukpa indigenous community remains unchanged. In 2008, members of the Chaktapa and Guamo communities complained that during the months of April, May, June, and July, they were again subject to verbal and physical abuse, including acts of repression and intimidation perpetrated with the support of members of the National Guard who fired shots into the ground, used tear gas against them, and threatened their lives. Despite this, competent State authorities have failed to take the necessary steps to protect the community, to investigate the incidents, or to proceed with the demarcation of their lands.[935]

1070.      The Office of the Human Rights Ombudsman also points to the property issue and the impact of coal prospecting and exploitation on indigenous communities living in the Perijá Range, and the fact that over the past year the situation has worsened as a result of unfinished demarcation and titling of indigenous lands and habitats. According to the organization, this has led the Yukpa communities of Koropo, Yushubrire, Chaktapa, Koruval, and Shapta to confront the owners and employees of haciendas in Campo Alegre, Tizina, Medellín, Brasil, Paja Chiquita, Gran Chaima, and Maracay, all located in Libertad Parrish (Machiques de Perijá, State of Zulia). The indigenous leaders, it is explained, demand the return of lands they claim have been usurped by plantation owners, that coal mining in the area cease, and that the demarcation of their lands be undertaken without further delay.[936]

1071.      In its observations on the present report, the State of Venezuela reported that the situation of violence generated in August of 2008 between the landowners and members of the Yukpa indigenous group, in the Sierra de Perijá, in the state of Zulia, gave rise to a series of actions by various entities of the national government to guarantee the rights of this community. The State explained that “as a result of the needs present in the zone and the request for demarcation of indigenous lands, violence erupted between some indigenous representatives, campesinos, other ethnic groups (Wayuu), and ranchers, who claim rights within the polygon of the Self-Demarcation Proposal submitted by the Yukpa community, a situation that is causing delays and inconveniences in the recognition of the rights of the population in general and especially of the indigenous peoples.” The State affirmed that the corresponding investigations have been opened in relation to the presumed presence of contract killers in the zone, as well as with respect to the circumstances that gave rise to the death of the elderly indigenous man José Manuel Romero at age 109. According to the State, “the National Assembly heard the case, to seek solutions through the subcommission on Participation, Guarantees, Duties, and Rights of Indigenous Peoples, as well as through representatives of the Office of the Human Rights Ombudsman, the Ministry of Popular Power for Indigenous Peoples, and the Ministry of Popular Power for the Environment, who held various meetings, with representatives of the Yukpa community and with owners of farms located in the zone, in order to address the problems in this territory.”[937]

1072.      The State also reported that the “National Executive advanced the process of the demarcation of lands, principally in the Sierra de Perijá, by carrying out censuses, investigations by hectares, and working groups. The Commission on Demarcation held informational workshops with the objective of ensuring that indigenous inhabitants know about the demarcation process. Additionally, various entities of the national executive sought points of reference to resolve the conflict in the zone.” It added that “the State of Venezuela, through the Ministry of Popular Power for the Interior and Justice, since November of 2008, has been executing the Comprehensive Plan for the Defense, Development, and Consolidation of the border Municipalities Machiques de Perijá, Rosario de Perijá and Jesús María Semprúm del Edo. Zulia according to Official Gazette No. 39.046, of October 28, 2008, under which Decree No. 6.469 applies directly to the Yukpa, Barí, and Japreria peoples, which constitute the Venezuelan historical-cultural patrimony and which have been vigilant defenders of the region of the southern border with the Republic of Colombia.” It reported that eight ministries of the national executive are involved in this plan, with an estimated budget for its execution of $109,510,453.48.[938]

1073.      With respect to the demarcation of lands, the State reported that this process was formally initiated in November of 2008, and is currently in the stage of presentation of technical reports (socioanthropological, physical, natural, and legal), according to the provisions of the Organic Law on Indigenous Communities and Peoples, with an advance of sixty percent for May 2009. According to the State, this process has been carried out in consultation with the indigenous communities.[939]

1074.      The State also reported that the Attorney General’s Office initiated investigations into the “alleged death threats, property damages, and injuries suffered by the Yukpa community in the Sierra de Perijá in the state of Zulia, on July 21, 2008 […] causing clashes between indigenous groups and ranchers in the zone.” The State detailed for the IACHR the advances in the investigations and emphasized that, in conformity with the Law on Protection of Victims, Witnesses, and Other Procedural Subjects, it had requested protection measures for two chiefs of the Yukpa community, measures that are being carried out by the State’s security bodies.[940]

1075.      Given the foregoing, the Commission reiterates that the State has an obligation to protect the indigenous peoples’ right to be consulted regarding all matters that affect them, taking into account their special relationship with the land and its natural resources. The Commission also underscores the need for the State to adopt immediate measures to fulfill its obligation to oversee the demarcation and delineation of property boundaries within the ancestral lands of Venezuelan indigenous peoples to be carried out through the establishment of adequate and effective procedures to that end. Likewise, deeds of ownership should be awarded to the corresponding indigenous groups. The Commission also urges the State to launch an effective investigation of the acts of violence committed resulting from the lack of demarcation of indigenous ancestral lands in Venezuela, to punish those responsible, and to take the measures necessary to protect the population against any recurrence of such acts.

2.         Cultural adaptation of rights

1076.      States must ensure that indigenous peoples enjoy the same rights as the rest of the population. In addition, they must adopt specific measures aimed at promoting and improving access by indigenous peoples to such services as education and health, and at guaranteeing that these services are adequate from a cultural perspective.[941]

1077.      In that regard, the Venezuelan Constitution recognizes the right of indigenous peoples to their own education as well as to an intercultural and bilingual educational system that is reflective of their specific socio-cultural reality and their values and traditions (Article 120). The Constitution also recognizes the right of indigenous peoples to comprehensive healthcare that considers their customs and cultures and that is respectful of traditional medicine and alternative therapies, subject to bioethical principles (Article 122).

1078.      Beyond formally recognizing these rights, the State informs that it has adopted specific measures to make them effective. The Commission is thus apprised of the fact that through Mission Barrio Adentro III, health services are being adapted to serve indigenous patients and offices of indigenous health have been set up offering the services of bilingual intercultural facilitators to reduce the impact of linguistic and cultural barriers. The Commission values the State’s initiative in opening Indigenous Health Offices as a part of the national hospital network in an attempt to tailor public health services to the specific needs of the indigenous population.

1079.      In the same vein, the Commission recognizes State efforts implement bilingual intercultural education. The Commission takes a positive view of the 2008 adoption of the Law on Indigenous Languages[942] whose objective is to regulate, promote, and strengthen the use, revitalization, preservation, defense, and development of indigenous languages based on the original rights of indigenous peoples and communities to use their own languages as a means of communication and cultural expression. That legislation provides that, within indigenous lands and habitats and anywhere indigenous people live, the use of indigenous languages is mandatory for educational, labor, institutional, administrative, and judicial services, as well as for local community media. Moreover, the Law mandates the use of indigenous languages in all educational establishments, public and private, operating within the indigenous habitat.

1080.      However, the Office of the Human Rights Ombudsman has noted that despite efforts undertaken by the Venezuelan State to improve the quality of life of indigenous peoples and communities in the country, there has been no significant progress registered in many aspects related to the development of their human rights, whether individual or collective. In its latest Annual Report, the Office of the Human Rights Ombudsman declares that indigenous peoples nationwide, and a good number of their respective communities with traditional settlements in the states of Amazonas, Anzoátegui, Apure, Bolivar, Delta Amacuro, Monagas, Sucre, and Zulia, have suffered from a lack of progress or a deterioration of the basic parameters of their quality of life, especially regarding the right to collective property.[943]

1081.      The Commission expresses its gravest concern regarding information contained in the Ombudsman’s Office 2008 Annual Report according to which, from July 11, 2007 to January 18, 2008, the deaths of nine Warao children between the ages of 6 to 11 years were registered in the communities of Mokoboina, Sacoinoco and Oribujo of the Manuel Renault Parrish (Antonio Diaz Township, state of Delta Amacuro). Examinations carried out among the area’s indigenous people showed malnutrition and the lack of access to potable water to be the cause of death in each of these cases.[944]

1082.      In the Commission’s view, the precarious state of health and nutrition that afflicted this community is not necessarily unrelated to the failure to demarcate indigenous ancestral lands, as discusses earlier. In that regard, the Inter-American Court has recognized that

particular impairment of the right to health and, closely related thereto, the right to nutrition and access to clean water, all strongly affect the right to a decent life and the basic conditions necessary to exercise other human rights, such as the right to education, or the right to cultural identity. In the case of indigenous peoples, access to ancestral lands and the use and enjoyment of natural resources located there are aspects directly linked to the ability to procure food and access clean water.[945]

1083.      The Commission observes in this respect that the fact that indigenous peoples’ right to their ancestral lands has not been effectively enforced in Venezuela, indigenous peoples have been left utterly without protection, a circumstance already responsible for the deaths of various community members and which might have been avoided given proper nutrition and timely medical intervention.

1084.      For the foregoing reasons, the Commission considers that the State must not only persevere in its efforts to promote the economic, social, and cultural rights of indigenous peoples in Venezuela through culturally sensitive assistance programs, but it must also take immediate steps to ensure their access to the lands and natural resources on which they depend, thereby preventing an erosion of their other rights, such as the right to health and the right to life.

E.         Trade union rights

1085.      The Inter-American Democratic Charter recognizes that the right of workers to associate freely to protect and promote their interests is essential for the full realization of democratic ideals. The American Convention on Human Rights recognizes this right in Article 16, as does Article 8 of the Protocol of San Salvador. The latter international instrument establishes that states must guarantee the right of workers to organize trade unions and to affiliate with the one of their choice, and that no one may be compelled to belong to a trade union. The Protocol also provides that states must allow trade unions to function freely, and that the exercise of trade union rights may be subject only to such limitations and restrictions that are established by law and necessary in a democratic society for safeguarding public order or for protecting public health or morals or the rights and freedoms of others.

1086.      The IACHR has followed the situation regarding the right to freely associate for labor purposes in Venezuela, and has warned that this right is critically affected by the existing degree of political polarization and lack of social coordination among trade unions, management organizations, and the Government.[946] In its 2003 Report on the Situation of Human Rights in Venezuela, the Commission expressed special concern over the massive firing of workers, over State intervention in the organization and election of trade union officers, and over legal barriers erected against the exercise of trade union rights. These issues continue to be of concern for the Commission, as are the frequent outbursts of violence and criminalization to which trade unionists are currently subjected.

1087.      According to information provided by the State, trade unions in Venezuela are democratic organizations set up to operate on a permanent and ongoing basis, established voluntarily by workers for their own protection in the labor market, the improvement of working conditions, the search for better living conditions, the exercise of their natural rights, and as an efficient means of communication for the expression of workers’ opinions on social and political issues—all of which is obtained through collective bargaining. All individuals employed in manufacturing, in professional careers or trades, or in public service, without discrimination for reasons of age, gender, race, religion, or ideology, are eligible and free to join a trade union.[947]

1088.      As to recognition of the right to freely associate within trade unions, the State observes that the Bolivarian Republic of Venezuela makes that right effective through Article 95 of the Constitution, which enshrines the right of workers, without distinction, to freely establish such trade unions as they deem appropriate to best protect their rights and their interests, as well as the right to become affiliated with such organizations, or not. The State notes, likewise, that on September 20, 1982, it ratified Covenant Number 87 on the right to trade unions and the right to organize[948] as a legal guarantee for workers exercising those rights.[949]

1089.      The State also points to the Organic Labor Law as legislative backing for the right of free trade union association in Venezuela.[950] Article 401, in particular, provides that “[n]o one shall be obliged or constrained directly or indirectly to join a labor organization, or not. Trade unions have the right to draft their own statutes and bylaws, and to elect freely the officers of their executive boards; as well as to program and organize their administration and to set guidelines for union action. A union’s statutes determine the local, regional, or national scope of its activities.” In addition, Article 402 provides that “[t]he State shall ensure that trade unions, federations, and confederations shall be free from constraints, operational pressure, or discrimination of any kind that might undermine democratic pluralism as enshrined in the Constitution.”[951]

1.         Interference with free trade union affiliation

1090.      Despite the norms discussed earlier, the Commission observes that Venezuela can still be described as a country of constant interference in the running of trade unions by means of State action that impedes the work of trade union officers and shows signs of government control of organized labor, and by norms established to allow the involvement of administrative entities in the election of trade union leaders.

1091.      In this regard, the Commission has noted for some years that Venezuela has certain norms, including some of a constitutional and organic nature, that constitute barriers to the free exercise of trade union rights. In its 2003 Report on the State of Human Rights in Venezuela, the IACHR, like such other international agencies as the International Labor Organization,[952] recommended the repeal of such norms for the sake of compliance with international standards established in this area.[953]

1092.      The Commission is particularly concerned by the fact that the State has not yet taken steps to reform Articles 95 and 293 of the Venezuelan Constitution. As to Article 95, the Commission notes its provision that trade union statutes and bylaws should establish term limits to ensure the rotation of union representatives and leaders. This article violates the right of trade unions to establish the conditions for reelection of their delegates without arbitrary interference from the State. Whether elected trade union officials may seek reelection or whether they must alternate positions with others is a matter for decision exclusively by the members of the organization in the exercise of the freedom to choose whomsoever they wish as representatives, without state interference[954].

1093.      The Commission observes, as to Article 293 of the Venezuelan Constitution, that it violates the right to establish trade unions without State intervention of any kind, in that it enables electoral authorities, through the National Electoral Council, to organize elections for trade unions and professional guilds.

1094.      The State has apprised the Commission, the Organic Law on the Electoral Branch regulates trade union electoral regimes as contemplated by Article 293 of the Constitution in accordance with international treaty law. In the State’s view, Article 33 of the Law constrains the activity of the National Electoral Council inasmuch as it can no longer participate in convening, directing, supervising, or monitoring trade union elections. Moreover, its intervention is subject to prior consent voluntarily given by the unions. Thus, the State concludes, the legislative provisions of the Organic Law on Electoral Branch sufficed to limit possible administrative interference in the internal affairs of trade union organizations.[955]

1095.      Numeral 2 of the cited Article 33 of the Organic Law on the Electoral Power gives the National Electoral Council competence to:

Organize union elections, respecting their autonomy and independence, in observance of the International Treaties ratified by Venezuela in this area, providing them with the corresponding technical and logistical support. Also, the elections of professional guilds and political and civil society organizations, in the latter case, when they request it or when it is ordered by a final judgment of the Electoral Chamber of the Supreme Court of Justice.

1096.      The Commission applauds the fact that this article recognizes the autonomy and independence of labor unions, as well as the application of international treaties in this area. Moreover, the Commission views positively the State’s interpretation of this article, according to which the participation of the National Electoral Council is limited to cases in which the labor unions request its assistance. The IACHR notes that, in practice, this electoral power has understood that it does not have the authority to organize union elections when there has not been a request for it to do so. The Commission further notes that in December of 2004, the National Electoral Council issued a resolution[956] that contains norms for the election of labor union authorities, and that these norms provide that the electoral body will act when it receives a request to convoke elections, submitted by the authorities of the labor union or a group of affiliates, upon the expiration of the term for which the authorities were elected or according to that which is established in its statutes or internal regulations.

1097.      Nevertheless, the Commission observes that Article 33 of the Organic Law on the Electoral Power gives the National Electoral Council the authority to organize union elections, and that the drafting of this norm does not clearly limit this authority to cases in which the there is an express request from the union. As such, although the interpretation of this norm by the electoral authorities has been correct, the IACHR considers that both Article 33 of the Organic Law on the Electoral Power and Article 293 of the Constitution permit administrative interference in the elections of workers’ organizations and must be modified to guarantee that the freedom to organize labor unions is free of all types of state intervention.    

1098.      The State remarks in addition that the draft Organic Labor Law takes up IACHR and ILO recommendations on interference in the right to organize.[957] The IACHR observes, however, that while the draft legislation was presented to the National Assembly on June 7, 2002, it has not yet been adopted as of the date of this report. This is all the more surprising given the ruling of the Supreme Court of Justice on a motion charging the National Assembly with an unconstitutional failure to act, brought by the National Federation of Autonomous Institution and State Enterprise Workers, and its ordering the legislative body to reform the Organic Labor Law to comply with the Fourth Transitional Provision and with Article 92 of the Constitution within six months. The deadline was reached on December 15, 2004, but the Law has yet to be enacted.

1099.      The requirement that trade union elections be organized and recognized by the National Electoral Council resulted in the loss of ability to engage in collective bargaining in the case of organizations which had not held elections recognized by that state body or of those awaiting its response, granting elections or recognition. This, in turn, led members to join other trade unions aligned with the government in order to have a voice in negotiating their contracts.[958]

1100.      As the Commission has observed, the exercise of trade union rights includes the freedom of workers to choose that trade union which, in their opinion, will best defend their interests, and to do so without any involvement by the authorities. The fact that affiliation to or defection from any particular labor organization is fostered constitutes a clear act of interference in the private affairs of the members of such organizations and, as such, an attempted violation of their trade union rights.[959]

1101.      The Commission observes that interference by the State in trade union activities has also been fostered by means of certain actions that have weakened the trade union movement. For instance, the State backed the creation in April 2003 of the National Union of Workers (UNT, by its Spanish acronym), a labor conglomerate established in Venezuela by followers of President Hugo Chávez to offset the influence of the Venezuelan Workers Confederation (CTV, by its Spanish acronym).

1102.      Information received by the Commission also alludes to difficulties experienced in exercising collective bargaining rights. As expressed at the Hearing on the State of Economic, Social, and Cultural Rights in Venezuela, held on March 24, 2009, within the context of its 134^th Period of Sessions, the absence of dialogue between the public sector and workers translated into delays in the scheduling of collective bargaining sessions such that, by March 2009, approximately 2,000 requests for collective bargaining negotiations within different governmental entities were paralyzed while the public services framework agreement expired four years ago. On this point, Office of the Human Rights Ombudsman reports that 33,460 public administration employees were covered by collective bargaining agreements in 2008, an increase as compared with the 13,195 so covered in 2007.[960]

1103.      The IACHR was also informed that in the State television stations, TVES, Vive, and ANTV, the workers have been denied the rights to collective bargaining and unionization. Additionally, in the national public bodies, some 800,000 employees and workers have had their contracts expired for four years. In the electrical sector, negotiations with the board of directors to sign a collective contract were stalled, after which the discussion was abandoned. The board of directors of the Caracas Metro System refused to discuss a collective contract with the workers.[961] According to information from the presidential press office, when the metro workers raised the possibility of stopping service, the President of the Republic responded in the following manner: 

[…] either they drive or I will send the Military after them. They said they are bolivarians and I said to them, more rightly, why were they behaving like adecos and copeyanos, how they are going to stop the Metro, with people inside, moreover, is a crime. I told them that they were not irresponsible people and I ordered the prosecutor’s office to open an investigation. They can be whoever they are, it does not matter to me what party they are from. They cannot be permitted to stop the Metro, it is a public service. I will not govern here being blackmailed by anything or anyone. I will not accept blackmail. I do not and will not allow myself to be blackmailed by anyone, I would rather die.[962]

1104.      As previously set forth, difficulties experienced in the negotiation of collective bargaining agreements stem in part from the requirement that the National Electoral Council organize and recognize labor elections. According to a Human Rights Watch report, in the public sector alone, more than 250 collective contracts expired while trade unions awaited CNE approval of their requests to hold elections or its recognition of electoral results. The number of collective contracts decreased from 854 in 2004 to 538 in 2006, partly due to the Ministry of Labor’s blocking of draft collective contracts proposed by existing trade unions unable to hold elections recognized by the National Electoral Council. Reportedly, the State has ignored established trade unions alleging they have failed to hold State-recognized elections, while at the same time promoting negotiations with new labor groups that are supportive of government and exempted from electoral restrictions from the start.[963]

1105.      According to the ILO Commission of Experts on Conventions and Recommendations, one instance of the impact the National Electoral Council has had on union autonomy, by exercising the power to organize internal trade union elections, is the National Pipefitters Institute’s (INC, by its Spanish acronym) refusal to recognize the representatives of the Single Trade Union of INC Workers and Seamen (Sutomin), alleging that the National Electoral Council had yet to organize elections.[964]

1106.      The Commission observes that the right to collective bargaining has also been violated by the government’s attitude toward public sector labor unions identified with the opposition. The Government’s announcement that it will not entertain collective bargaining for the oil sector with any trade union opposed to President Chávez’s ideology offers a recent example to that effect. This was declared by the Minster for Energy and Oil and President of PDVSA, at the occasion of the First National Meeting of Socialist Committees of Oil Sector Workers, in referring to elections to be held in August 2009 to renew the slate of representatives of oil workers accredited by the Government. The Minister also ordered oil sector employees to set up socialist committees, warning that “anyone not participating in a socialist committee will be considered suspect of conspiring against the revolution.”[965]

1107.      The Commission views with concern that union affiliation is subject to political or ideological pressure. The Inter-American Court has stressed that

freedom of association in trade union matters consists fundamentally in the ability to establish labor organizations and to set up their internal structures, activities, and programs of action without interference from public authorities which constrains or burdens the exercise of the respective right. Similarly, such freedom also presupposes that every individual can decide without duress of any kind whether or not to become affiliated to a particular trade union. This, then, is fundamental freedom of association in pursuit of a lawful objective to be exercised without pressure or interference that may alter or adulterate its purpose.[966]

1108.      The Commission has also indicated that “the right to choose and to be chosen and to organize trade unions are rights recognized by the American Convention and the Inter-American Democratic Charter. In the judgment of the IACHR, the free establishment of trade unions operating without undue interference by the State constitutes an important element of any democratic system.”[967] For that reason, the Commission reiterates the need for the State to reform its legislation in this area and abstain from intervening in any way in the process of free affiliation with labor unions.

2.         Criminalization of the right to strike

1109.      Another situation that affects the right to associate freely for labor purposes is the growing criminalization of trade union activities by means of the start of judicial action against labor right defenders by invoking Articles 357 and 360 of the Penal Code,[968] which limit peaceful demonstration and constrain the right to strike in connection with labor demands.

1110.      Likewise, Article 56 of the Organic Law on National Security provides for a prison sentence of five to ten years for those deemed to promote conflict in the workplace of basic state industries. According to information received by the Commission, this article was invoked a minimum of 70 times during 2008.[969]

1111.      Another form of labor protest, the boycott, is also subject to criminalization through application of Article 24 of the new “Special Law for the People’s Defense against Hoarding, Speculation, and Boycotting.”[970] The article provides that “[w]homsoever carries out action, jointly or severally, that directly or indirectly impedes the production, manufacture, import, stocking, transport, distribution, or trading of foodstuffs or commodities subject to price control shall be punished with a prison sentence of two (2) to six (6) years, and with a fine of one-hundred thirty (130 UT) to twenty thousand tax units (20,000 UT).”

1112.      The Commission believes, in that regard, that boycotts can represent a peaceful form of labor protest, which is why its criminalization through the imposition of prison sentences or exorbitant fines is tantamount to a new threat against the right to strike. Such action seeks to constrain the negotiation capacity of labor organizations at the very time they are fighting to improve working conditions.

1113.      PROVEA figures show more than 2,200 workers, farmers, students, and community members could be affected if they are periodically compelled to appear in court for having exercised their right to protest. Of the 2,200 individuals who had charges laid against them for protesting as of July 2009, 120 are workers: of these, 30 work in the oil sector and another 25 work in the steel industry.[971]

1114.      Among others, in May 2007, at least ten labor leaders of the Sanitary Workers of Maracay Trade Union were intercepted and detained by members of the National Guard and Police of Aragua while on their way to Caracas to address the National Assembly on the state of workers as set forth in a sheaf of petitions. Although they were freed, the Attorney General’s Office charged them with violation of Penal Code Article 357, which proscribes obstruction of public roadways, and they were ordered to appear in the prosecutor’s office every two weeks.[972]

1115.      Similarly, in March 2008, members affiliated with the Single Trade Union of Steel Sector and Related Industry Workers (Sutiss) called a strike of 48 hours to protest against delayed collective bargaining at Siderúgica del Orinoco (Sidor) following the interruption of the High Level Commission’s negotiations with management. Confrontations with the police led to the detention of 53 trade unionists,[973] subsequently charged with allegedly having committed the crime of roadway obstruction.

1116.      Recently, on July 13, 2009, five labor leaders of the El Palito Refinery in the state of Carabobo were served with a citation issued by the Criminal Control Tribunal of the state of Carabobo, Puerto Cabello extension, signed by the First Permanent Judge, which “orders the prohibition of instigating or promoting within the same institution (PDVSA), any meeting and/or demonstration that puts the normal functioning of this Basic Enterprise at risk.” According to the information presented to the IACHR, this legal action brought to ten the total number of oil sector workers threatened for having launched protests within the complex; another five are covered by a precautionary measure adopted last year and are still awaiting the findings of the Attorney General’s Office.[974]

1117.      The Commission also notes that, according to the State, “any strike is considered illegal if it involves the stopping or disruption of essential public services, which causes irreparable harm to the public or institutions due to the failure to provide the minimum indispensable services.”[975] Nevertheless, Article 181 of the Regulations of the Organic Labor Law[976] indicates that “it is considered that the failure to provide minimal indispensable services in the case of strikes that involve the cessation or disruption of essential public services causes irreparable harm to the population or to institutions, causing it to be illegal.” In this sense, the legislation seeks to safeguard a minimum level of services, but the State has applied this norm in the most general way, which has had the effect of restricting the right to any strike that disturbs an essential public service.   

1118.      This is even more troublesome given that the cited Regulations in their Article 182 provide that in Venezuela almost all public services are considered essential public services, including: health; public health and hygiene; the production and distribution of potable water; the production and distribution of hydrocarbons and their derivatives; the production and distribution of gas and other combustibles; the production and distribution of foods of primary necessity; civil defense; the removal and treatment of urban refuse; customs; the administration of justice; environmental protection and the protection of cultural goods; public transport; air traffic control; social security; education; mail and telecommunications services; and the informational services of public radio and television.  

1119.      The Commission considers it timely to recall that trade union organizations play a very important role in protecting the human rights of workers faced with precarious labor conditions in the workplace, and that they have become key protagonists of organized political expression aimed at furthering the presentation of labor and social demands of many sectors in society.[977] One of the mechanisms available to trade unions to press for an answer to such demands is the right to strike. That is why the IACHR calls upon the State to refrain from subjecting labor leaders to judicial processes who are exercising that right legitimately and peacefully.

3.         Assassination of trade union leaders

1120.      The Inter-American Court has recognized that trade union rights suffer when violations to the right to personal integrity or to life aim to constrain the exercise of such rights and freedoms. It follows, therefore, that trade union rights cannot be exercised in a context of impunity in the face of violence leveled against labor. In that sense, states must ensure that individuals can freely exercise their labor rights without fearing any violence.[978]

1121.      The IACHR has expressed its concern over the sustained increase in the number of trade union leaders who have been victims of attacks and threats to their personal integrity and lives. It has asked the Venezuelan State to investigate such acts in order to determine the cause of this situation and to fashion appropriate and effective measures that will assist in prevention, investigation, and sanctioning of responsible parties.[979]

1122.      Nonetheless, the number of victims of assassination among the ranks of labor leaders in Venezuela keeps that country among those where trade union activism proves dangerous.[980] Information received by the IACHR shows that the frequency of attempts against the personal security of trade union members, particularly in the construction and oil sectors, turns the defense of labor rights in various regions across the nation into an activity that systematically imperils the right to life.[981] Moreover, the Commission has heard reports concerning violent incidents being perpetrated among rival labor unions.[982]

1123.      Labor conflicts related to the right to work have cost the lives of numerous trade union leaders, workers, and citizens.[983] According to the Human Rights Vicarage of Caracas, between 1997 and 2007, Venezuela saw the execution of 52 labor leaders and 87 workers resulting from the violent union struggle to control employment quotas. The most standard means of attacking labor leaders is by means of hired gunmen.[984] According to the report of the same organization corresponding to the period of 2008-2009, another 34 labor leaders have been assassinated. Similarly, information received by the Commission during its 134^th Period of Sessions indicates that between 2007 and 2008, 67 trade union leaders were assassinated, and by March 2009 another 18 were as well.[985]

1124.      A case in point is the assassination on January 29, 2007 of Héctor Francisco Jaramillo, secretary of professional and technical staff at Sutrabolivar. In the same incident, Alexis García was killed and Oscar José Marcano was injured; both were members of the disciplinary tribunal at the Incorporated Trade Union for the Workers of the Bolívar state (Sutrabolívar by its Spanish acronym). The acts occurred as the trade unionists were heading toward the construction site at Cachamay Sports Stadium where they were to address the issue of worker transportation. On the way, three individuals stopped them and fired against their vehicle. Harassment against this labor group continued during the victims’ wake as eight persons opened fire against those present and killed two delegates of Sutrabolivar, Neomar Rodríguez and Robert Rivero. A woman of 50 years of age died after being shot in the head and several others were injured. The motive was never established.[986]

1125.      On November 28, 2008, in Villa De Cura, in the state of Aragua the union leaders of the Unionist Union of the Left and of the National Workers’ Union (UNT, by its Spanish acronym), Richard Gallardo, Luis Hernández, and Carlos Requna, were murdered as they were returning to their homes after participating in a day of solidarity with the workers in conflict of the Alpina company. According to the information received, they were intercepted by two armed subjects who were riding on a motorcycle and shot them.[987]

1126.      On January 6, 2009, Jean Carlos Miguens, 25 years of age, leader of the Union of Industrial and Construction Workers of Aragua (Sinasoica), was assassinated. According to what was reported to the IACHR, after having received repeated death threats by telephone and being followed into an alley by unknown individuals, he was shot several times, causing his death.[988]

1127.      On February 26, 2009, Ramón Suárez was assassinated in the town of El Tigre, Anzoátegui state. Suárez was a member of the board of directors of the Single Union of Workers in the Industries of Construction, Woodworking, and Related and Similar Industries of the State of Anzoátegui and, according to the information received by the IACHR, he was shot eight times while he was driving a motorcycle in the company of his ex­wife Katiusca González, who was injured by two shots.[989]

1128.      On February 7, 2009, the vehicle in which Darwin José Nuñez Fernández, former leader of the Union of Constructions Workers of the State of Bolívar, was traveling in the company of two of his former colleagues from the syndicate, Alexander David Zambrano Sánchez and Ronny José González Coraspe, was attacked with gunfire. Zambrano, González, and Núñez were intercepted by a vehicle from which emerged three armed subjects who fired upon the former union members. According to what was reported to the IACHR, the three former union members had decided to withdraw from Sutrabolívar after receiving death threats and having various problems in their places of work. The shots caused the death of Alexander David Zambrano Sánchez.[990]

1129.      On February 27, 2009, Ilian Antonio González González, 21 years of age, who was linked to the Muralla Roja Construction Union, was assassinated. According to the information received by this Commission, an unknown subject traveling on a motorcycle shot him 13 times and nothing was taken from the victim.[991]

1130.      On May 5, 2009, Argenis Vásquez Marcano, Secretary General of the Automobile Industry, worker in the Toyota factory in Cumaná in the state of Sucre, and leader of the United Socialist Party of Venezuela (PSUV, by its Spanish acronym), was assassinated. The IACHR received information indicating that the union leader had made denunciations about the existence of a black market in vehicles, and was riddled with gunshots by two individuals.[992]

1131.      On August 16, 2009, the body of trade union leader Jorge de Jesús Aguirre appeared partially burned and dismembered on the banks of Vilchez Dam, near the sector of Parapara in Guárico. The investigation reveals that the leader had been stopped by some hooded men on the national highway San Juan de los Moros-Los Dos Caminos, near his property. After being intercepted, the victim appears to have been driven to the edge of Vilchez Dam. There it seems the perpetrators first set fire to the vehicle, then to him.[993] That same month, on August 31, 2009, trade unionists Alberto José Mejías Sotomayor and Alexander Machado Díaz were shot to death in the Paz Castillo Township, state of Miranda. The victims were members of the Bolivarian Workers Union (UBT, by its Spanish acronym).[994]

1132.      The death of trade unionists happens not only at the hands of hired assassins, but also as a result of excessive force being used by public servants entrusted with keeping the peace. Recently, for instance, a member of the police force of the state of Aragua, Victor Salazar, was indicted for intentional homicide allegedly committed against labor leader Manuel Felipe Araujo Fuenmayor on February 17, 2009 at the wholesale market La Morita on interstate Turmero-Maracay in the state of Aragua. Two other citizens died in the same incident. The public prosecutor’s office investigation shows that confrontations arose between builders of the state of Aragua’s Bolivarian Workers Union (UBT, by its Spanish acronym) and other UBT members from Caracas over adjudication of a construction bid. The police officer allegedly struck Mr. Fuenmayor’s head with an iron bar and caused his death.[995]

1133.      Additionally, the IACHR was informed that in the context of an action to take over an industrial plant, workers José Javier Marcano Hurtado and Pedro Jesús Suárez Polito were killed by shots fired by members of the Police of the State of Anzoátegui on January 29, 2009 during the execution of a judicial measure ordering the dispossession of the MMC Automotriz C.A. plant, located in the industrial zone of Los Montones, in the city of Barcelona. The governor of the state of Anzoátegui energetically condemned the acts, ordering the suspension from their duties of the two superintendents and two sub-inspectors who commanded the group of 50 police officers who participated in the ejection from the plant and requested that the president of the Supreme Court of Justice investigate and sanction the judges who ordered the judicial measure.[996]

1134.      The Commission is not only concerned about the figures of assassinations of trade union leaders, but also about the information according to which of the 52 labor leaders or labor rights defenders assassinated between 1997 and 2007, the perpetrators of just 3 have been brought to justice and sanctioned by the courts,[997] which is to say that most have met with impunity.

1135.      The Inter-American Court has established that the right to associate freely enshrined by Article 16 of the American Convention protects two dimensions. The first dimension encompasses the right and freedom to associate freely with other persons, without the intervention of public authorities that might constrain or burden the exercise of the respective right, representing, then, a right of each individual. The second dimension recognizes and protects the right and freedom to seek the common realization of a legal pursuit, without pressure or interference that might alter or adulterate that goal.[998]

1136.      Accordingly, in the Court’s opinion, “The execution of a trade union leader […] restricts not only an individual’s freedom of association, but also the right and freedom of a given group to associate freely, without fear or apprehension, which confers special scope and character on the right protected by Article 16. The dual dimension of the right to associate freely thus becomes evident.”[999]

1137.      With respect to the assassinations of union leaders, in its observations on this report, the State affirmed that “there are cases of murders of union leaders carried out by contract killers, motivated by conflicts between some unions due to improper fees charged to members for employment in companies. […] The Venezuelan State deplores this mafia attitude of supposed ‘union leaders’ and the Attorney General’s Office has investigated each one of these cases to determine the responsibilities.”[1000].

1138.      Bearing in mind that the rights of worker organizations can only be exercised in a climate free from violence, pressure, or threats of any sort, the Inter-American Commission urges the State to adopt the necessary measures to end the situation of insecurity described above, and therefore allow worker and management organizations to exercise their trade union rights fully.

1139.      The Commission is concerned by the number of trade unionists who have fallen victim to attempts and threats upon their lives and personal security, and reiterates its request that the Venezuelan State assess these incidents to identify their causes, as well as to fashion appropriate and effective measures to assist prevention, investigation, and sanctioning of responsible parties, taking due account of the chilling effect that failure to investigate these acts will have on the free exercise of trade union rights.

F.         Recommendations

1140.      In order to strengthen State action aimed at promoting economic, social, and cultural rights, the Commission recommends that the State:

1.        Intensify efforts to achieve progressively the full observance of economic, social, and cultural rights, and guarantee that such efforts will not imply undermining the population’s other fundamental rights.

2.         Adopt public policies that will foster long-term continuity of the efforts to guarantee economic, social, and cultural rights, ensuring that the full exercise of such rights will not depend on the will of one government or another.

3.         Complete the process of ratification of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights.

4.         Adapt the dispositions of the Organic Law on Education to the standards of the American Convention on Human Rights.

5.         Adopt measures needed to obtain legislative approval of the Draft Law on Health with a view to establishing guidelines for the creation of a National Public Health System.

6.         Give immediate attention to current weaknesses in the health system and efforts to guarantee full observance of the right to health in Venezuela.

7.         Guarantee transparency of information with respect to the criteria serving to allocate the benefits extended by Missions, and establish a clear system of accountability to the people regarding Mission programs.

8.         Adopt necessary mechanisms to ensure that Missions operate in full coordination with state and national public services.

1141.      In order to protect more effectively the cultural rights of indigenous peoples, the Commission recommends that the State:

1.       Adopt urgent measures to meet the State’s obligation to demarcate and delimit the ancestral lands of Venezuelan indigenous peoples, based on appropriate and effective procedures to that end, as well as to grant property title to the respective peoples.

2.       Adopt measures to prevent conflicts generated by the lack of land demarcation and protect the population from such occurrences.

3.       Establish special fast and effective mechanisms to resolve existing disputes over land possession with a view to affording guarantees and legal certainty in respect of indigenous peoples’ titles over their own property.

4.       Fully investigate acts of violence arising from the absence of demarcation of ancestral indigenous lands in Venezuela, and duly sanction the responsible parties.

5.       Promote, consistent with their relevant international obligations, participation by indigenous peoples and communities affected by projects for the exploration and exploitation of natural resources by means of prior and informed consultation aimed at garnering their voluntary consent to the design, implementation, and evaluation of such projects, as well as to the determination of benefits and indemnization for damages according to their own development priorities.

6.       In the context of ongoing natural resource prospecting and exploitation projects, implement participatory mechanisms to assess the extent of environmental damage caused and the impact on basic subsistence activities among indigenous peoples and agricultural communities living where such projects unfold. This aims to ensure immediate project suspension when the lives and/or personal security of such individuals are at risk, and to level administrative and criminal sanctions as appropriate. If projects proceed, the State must guarantee that those affected will share in the benefits derived, and that damages will be assessed and compensation will be made.

7.       Guarantee access to an adequate and effective judicial remedy to address environmental damage collectively, such that, aside from criminal action, mechanisms of a legal nature are available for immediate attention to be focused on circumstances that may cause irreparable damage to groups of individuals.

8.       Continue efforts so that the rights to education and to health of indigenous peoples are compatible with their mores and world view; foster continuity and strengthening of their cultural identity; and in no way imply a form of assimilation of indigenous peoples into non-indigenous society.

1142.      In order to accord effective protection to trade union rights, the Commission recommends that the State:

1.       Repeal norms that permit State intervention in the organization and election of trade unions and their leaders; and remove legal barriers to the exercise of trade union rights. Particularly, reform Articles 95 and 293 of the Venezuelan Constitution as they respectively violate the right of the unions to establish the conditions for the reelection of their delegates in their statutes without arbitrary interference from the State and the right to organize trade unions without any State interference. Modify also Article 33 of the Organic Electoral Law since it vests authority in the National Electoral Council to organize union elections without making it clear that this authority is limited to cases in which the union requests it.

2.       Adopt measures to approve the Organic Labor Law, which incorporates IACHR recommendations regarding interference in trade union rights.

3.       Cease efforts to promote affiliation or non-affiliation with a given trade union.

4.       Cease the imposition of judicial proceedings on trade union leaders engaged in the legitimate and peaceful pursuit of the right to strike.

5.       Investigate and sanction the perpetrators of violations of the rights to personal security and to life related to the exercise of trade union rights.