INTER-AMERICAN COMMISSION ON HUMAN RIGHTS CONCLUDES
1. The Inter-American Commission on Human Rights (IACHR) today concluded an on-site visit to the Bolivarian Republic of Venezuela, which was undertaken by invitation of President Hugo Chávez Frias. The visit, from May 6 to 10, included the participation of the President of the Commission, Juan E. Méndez; the First Vice-President, Marta Altolaguirre; and Commissioners Robert K. Goldman, Julio Prado Vallejo, and Susana Villarán. Also participating were the Executive Secretary of the IACHR, Santiago A. Canton, the newly-designated Rapporteur for Freedom of Expression, Eduardo Bertoni, and staff from the Executive Secretariat.
2. During a press conference, the Commission, through its President, Juan Méndez, condemned the tragic events of April that took the lives of at least 16 persons. In addition, he recalled that during the tragic events of April the Commission condemned the deaths and the acts of violence, repudiated the coup d’etat, and sought precautionary measures on behalf of Tarek William Saab, and information about the incommunicado detention of Hugo Chávez Frías. President Hugo Chávez Frías, in his meeting with the IACHR, thanked the Commission for its actions.
3. Regarding the April events, the IACHR stated that “it is an international obligation of the state to investigate and prosecute the persons responsible for the events of April, in keeping with the rules of due process, and to ensure that they not remain in impunity.”
4. The IACHR expressed its concern over the polarization of Venezuelan society, which found its most tragic and serious expression in the April incidents. In this regard, the IACHR stated that the call to national dialogue by President Chávez represents a substantive stride forward. The IACHR “values this important initiative, although it notes that the forum for dialogue announced does not reflect an effort to include all the social and political sectors.” In addition, the IACHR called upon the opposition groups to abandon sectarianism and to participate in the dialogue, and it appealed to “all groups to make possible, in a climate of tolerance, active participation in the democratic discussion, with creative and inclusive proposals, so that the process of national dialogue can be truly fruitful and successful in the shortest possible time.”
The new Constitution
5. With respect to the Constitution, the IACHR valued a large number of innovative provisions, such as, among others, according constitutional rank to human rights treaties, obligating the State to investigate and punish crimes against human rights, limiting the use of military justice, and eliminating time limits for prosecuting crimes against human rights.
6. The IACHR added that notwithstanding these reforms, the Constitution includes various elements that may hinder the effective observance of the rule of law. The constitutional machinery does not provide, in important situations, for checks and balances as a means of controlling the exercise of public authority and of guaranteeing the observance of human rights. The main legislative powers were derived under a regime authorizing the Executive branch to exercise them, with no defined limits. Also troubling for the Commission is the so-called “transitory regime.” The IACHR considers that in the case of Venezuela, the transitional provisions have lasted beyond the normal and proper time frame, and have included directives with legislative content that go beyond the nature of a transitory regime.
The administration of justice
7. The Commission heard questions raised about the legitimacy of the process used to choose the highest-ranking members of the Judiciary, the Office of the Human Rights Ombudsman, the Public Ministry, and the Office of the Comptroller General of the Republic. Such procedures are not provided for in the Venezuelan Constitution. The information received indicates that those authorities were not nominated by the committees established for that purpose by the Constitution, but on the basis of a law that was passed by the National Assembly after the Constitution was approved, called the “Special Law for the Ratification or Designation of the Officers of the Citizen Power (Poder Ciudadano) and Members of the Supreme Court of Justice.”
8. Another aspect related to the autonomy and independence of the Judiciary has to do with the provisional status of judges. The IACHR is aware that the problem of provisional judges in Venezuela is long-standing. According to the information provided to the IACHR during the visit, at present, 60% to 90% of the judges are provisional, which, in the Commission’s view, has a negative impact on the stability, independence, and autonomy that should govern the Judiciary. The Commission expresses the importance of a process beginning immediately in Venezuela, in keeping with its domestic law and international obligations under the American Convention, to reverse the situation whereby most of the judges are provisional.
Freedom of expression
9. As regards freedom of expression, the Commission, through its Rapporteur for Freedom of Expression, has been closely monitoring the protection of this right in Venezuela through its annual reports and the report provided to the IACHR on the visit by the Executive Secretary, Santiago A. Canton, in February 2002. The IACHR has found that while it is possible to direct criticisms at the authorities, they result in acts of intimidation that limit the possibility of free expression. The IACHR finds that in Venezuela newspapers have not been shut down, nor have journalists been detained. Nonetheless, free expression cannot be limited to the absence of censorship, shutdowns of newspapers, or arbitrary detentions of those who speak freely. In the particular case of journalists, the IACHR received information describing verbal and physical assaults in recent months, and recalled that it is a responsibility of the state to provide protection to citizens, including social communicators, through strong measures aimed at disarming sectors of the civilian population who operate outside the law and who have been involved in such incidents.
10. In addition, the IACHR has observed with concern the scant information or, on occasion, total lack of information, available to Venezuelan society during the institutional crisis of last April. The IACHR noted that “although there may be many justifications to explain this lack of information, to the extent that the suppression of information has resulted from editorial decisions motivated by political considerations, it should be subject to a necessary process of analysis by the Venezuelan media as to their role at that time.”
The armed forces and security forces
11. As for the armed forces and the security forces, during the visit the IACHR received expressions of concern over the undue influence of the armed forces in the country’s political life, as well as excessive engagement by the armed forces in political decision-making. The IACHR takes this opportunity to recall that, in keeping with Article 4 of the Inter-American Democratic Charter, the constitutional subordination of all state institutions to civil authority is fundamental.
The right to form and join trade unions
12. Furthermore, the IACHR learned of a clear conflict regarding the right to form and join trade unions. The IACHR was informed that once the elections were held, in keeping with the rules of the National Electoral Council, the elected directors of the CTV union federation were not recognized by the national authorities. The American Convention protects the right to elect and to be elected, and to form and join trade unions. Accordingly, the IACHR urged the Venezuelan State to resolve as soon as possible, and in keeping with Venezuela’s international obligations, the conflict that came about due to the failure of the authorities to recognize the freely elected authorities of the CTV.
13. The IACHR noted that political participation, the right of association, and freedom of expression are all rights guaranteed in the American Convention, and in this regard, the "Bolivarian Circles," as free groups of citizens or grass-roots organizations that support the President’s political project, may, under certain conditions, be a suitable channel for the exercise of these rights. Nonetheless, the IACHR understands that the expression of certain partisan political ideas cannot be accorded privilege to the detriment of others, nor can there be any justification for acts of violence or restrictions on the rights of third persons with different political outlooks or given professional roles, especially if they receive public financing. The Commission reminds the Government that it is a responsibility of the State to ensure the effective exercise of the rights of all inhabitants of Venezuela. The international responsibility of the State is triggered if groups of civilians are freely violating rights, with the support or acquiescence of the Government. Therefore, the Commission calls on the Government to seriously investigate the acts of violence attributed to some Bolivarian Circles, and to adopt, with the utmost urgency, all actions necessary for preventing the recurrence of such acts. In particular, it is essential that the monopoly over the use of force be vested exclusively in the public security forces; the complete disarming of any group of civilians should take place immediately.
The death squads (grupos de exterminio)
14. According to information received by the IACHR, and particularly based on what has been pointed out by the Human Rights Ombudsman, there are death squads (“grupos de exterminio”) made up of State security officers operating in the states of Portuguesa, Yaracuy, Anzoátegui, Bolívar, Miranda, and Aragua. In its visit to the state of Portuguesa, the Commission observed with serious concern that the death squads are not only an illegal means of social control, but that, in the particular case of Portuguesa, they are part of a criminal organization that operates for monetary gain within the state police force, and that continues operating and threatening the family members of victims and witnesses, who are absolutely defenseless.
15. Given the gravity of the situation, the Commission demands a serious and complete investigation into these death squads, the prosecution and punishment of the persons responsible without delay, and reparations for the harm caused. In addition, it requests that the Venezuelan State grant effective measures of protection to the witnesses and the victims’ next-of-kin. The Commission considers it crucial to increase the human, technical, and logistical resources earmarked for investigating these death squads, and to remove the members of the security forces involved immediately.
16. Finally, the IACHR noted that the main source of democratic legitimacy is that granted by the popular will as expressed in free, periodic, and universal elections. Yet elections in themselves are not sufficient to ensure a fully effective democracy. As indicated by the Inter-American Democratic Charter, essential elements of democracy include, among others, respect for human rights and fundamental freedoms; access to power and the exercise of power subject to the rule of law; the holding of periodic, free, and fair elections, with universal and secret balloting, as the expression of popular sovereignty; a plural regime of political parties and organizations; and the separation of powers and independence of the branches of government. In addition, fundamental components of the exercise of democracy include transparency in government activities, openness, accountability of the government in public administration, respect for social rights, and freedom of expression and of the press. The constitutional subordination of all state institutions to the legally-constituted civilian authority and respect for the rule of law by all entities and sectors of society are also fundamental for democracy.
17. The IACHR considers that the lack of independence of the Judiciary, the limitations on freedom of expression, the proclivity of the Armed Forces to engage in politics, the extreme polarization of society, the action of the death squads, the scant credibility of the oversight institutions due to the uncertainty surrounding the constitutionality of their designation and the partiality of their actions, and the lack of coordination among the security forces, represent a clear weakness of the basic elements of the rule of law in a democracy, in the terms of the American Convention and the Inter-American Democratic Charter. Accordingly, the Commission calls for the rule of law to be strengthened in Venezuela as soon as possible.
18. In the current situation in Venezuela, international protection of human rights become even more fundamental. In this regard, it is especially important that the Government of President Chávez comply fully with the decisions and recommendations of the organs of the inter-American system, in their decisions in individual cases, in their judgments, and, in particular, in the requests for precautionary measures issued to protect persons at grave risk, when necessary to prevent irreparable harm.
19. The IACHR will continue observing closely the development of the human rights situation in Venezuela. The visit culminating today was an excellent opportunity to achieve this aim, and to further the dialogue that the Commission maintains, within its competence, with the Venezuelan authorities and Venezuelan society. The IACHR reiterates its offer to work with the Government of Venezuela and with Venezuelan society as a whole to contribute to the strengthening of the defense and promotion of human rights in the context of democracy and a legal institutional framework. In addition, it hopes to conduct another visit in the near future to follow up on the recommendations and conclusions presented in this press release.
Caracas, May 10, 2002
PRELIMINARY OBSERVATIONS OF THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
UPON THE CONCLUSION OF ITS VISIT TO
THE BOLIVARIAN REPUBLIC OF VENEZUELA
1. On this date, the Inter-American Commission on Human Rights (IACHR) concluded its on-site visit to the Bolivarian Republic of Venezuela. The visit – undertaken at the invitation of the Government of President Hugo Chávez Frías – took place May 6 to 10, 2002. The purpose was to observe the human rights situation in Venezuela.
2. The IACHR is a principal organ of the Organization of American States (OAS) whose mandate is to promote the observance of human rights in the Hemisphere, and whose powers derive from the American Convention on Human Rights and the Charter of the OAS, both of which have been ratified by the Bolivarian Republic of Venezuela. The Commission is made up of seven members elected, in their personal capacities, by the OAS General Assembly. The Delegation of the IACHR for this visit, its first to Venezuela, is made up of its President, Juan E. Méndez; the First Vice-President, Marta Altolaguirre; and Commissioners Robert K. Goldman, Julio Prado Vallejo, and Susan Villarán. Also participating in the visit were Executive Secretary Santiago A. Canton, and attorneys Milton Castillo, Mario López, María Claudia Pulido, Débora Benchoam, and Ariel Dulitzky, as well as the newly-designated Rapporteur for Freedom of Expression, Eduardo Bertoni. The delegation had the administrative support of Martha Lucía Keller, Nadia Hansen, and Gloria Amanda Molina.
3. The IACHR notes that it was completely free to meet with the persons of its choice, and to travel to any part of Venezuelan territory as it deemed advisable. The Government of Venezuela gave the Commission its full assistance and cooperation to enable it to carry out its program. The Commission would like to thank the Government of President Chávez for so facilitating the visit. In addition, the IACHR is pleased to have received the invitations of President Hugo Chávez Frías and Vice-President José Vicente Rangel to the Commission to visit Venezuela as many times as it deems necessary to give continuity to its observation of the human rights situation in the country.
4. During its visit, the IACHR met with authorities from the different branches of government, including the President of the Republic, Hugo Chávez Frías. Meetings were also held with non-governmental human rights organizations, representatives of the Venezuelan Bishops Conference, political leaders, journalists and representatives of the media, representatives of trade unions, victims and relatives of victims, and other representatives of civil society active at the national and local levels. The IACHR maintained contact with international organizations including the office of the United Nations High Commissioner for Refugees. In addition, it received information and testimony on the situation in all regions of the country, especially in the state of Portuguesa, which was visited by a delegation from the IACHR.
5. In the context of its collaboration with the Government, and for the purpose of contributing to the search for greater protection of fundamental rights in Venezuela, the Commission, based on the functions and powers granted to it by Article 41 of the American Convention on Human Rights, hereby makes public its preliminary observations on its impressions prior to and during the visit. The final conclusions and recommendations will be set forth in a report on the situation of human rights in Venezuela, which will be forwarded to the Venezuelan State for its consideration and made public soon.
6. The purpose of this visit has been to make a preliminary evaluation as to the observance of human rights in Venezuela. During its visit, the Commission has observed various crucial issues. Even so, after the events of April, these preliminary observations will focus on aspects relating to the observance of human rights in the context of the rule of law. The other issues on which the Commission received information in the course of this visit, such as women’s rights, the situation of indigenous peoples, the rights of children, the prison situation, and treatment of refugees, will continue to be analyzed by the IACHR pursuant to its powers as defined in the Convention and its Statute.
I. THE RULE OF LAW IN VENEZUELA
7. The IACHR highlights the importance of democracy and the rule of law for the effective protection of human rights. In a democratic society, the rights and freedoms inherent to the person, the guarantees for their exercise, and the rule of law constitute a triad, each of whose elements is defined, complete, and takes on meaning in relation to the others.
8. Democracy is grounded in the principle that political sovereignty vests in the people, and that in exercising that sovereignty, the people elect their representatives to exercise political power, respecting the rights of minorities. The representatives thus exercise a mandate from their constituents, who aspire to a dignified life, in liberty and democracy, which can only be attained by placing effective limits on public power and the necessary checks and balances among the organs of the state. The observance of human rights requires a legal and institutional order in which the laws come before the will of those who govern, and in which there is control by some institutions over others for the purpose of preserving the purity of the expression of the popular will: the rule of law. The Commission considers that only through the effective exercise of representative democracy can all human rights be fully guaranteed.
9. Democracy and the rule of law are necessary conditions for attaining the observance of and respect for human rights in a given society. According to the Inter-American Democratic Charter, the essential elements of democracy include, among others, respect for human rights and fundamental freedoms; access to power and the exercise of power subject to the rule of law; the holding of periodic, free, and fair elections based on universal suffrage and secret balloting as an expression of popular sovereignty; a pluralistic regime of political parties and organizations; and the separation of powers and independence of the branches of government. Other fundamental components of the exercise of democracy are transparency of government activity, responsible public administration by governments, respect for social rights, and freedom of expression and of the press (Inter-American Democratic Charter, Articles 4 and 5).
a. The rule of law and the events of April
10. As regards the events of April, the Commission expressed its repudiation of the coup d’etat in due course. The breakdown of the constitutional order constituted a violation of basic principles of international law in force in the Americas, reflected mainly in the Inter-American Democratic Charter, and of rights enshrined in the American Convention. Nothing justifies a break with the constitutional order or an effort to impede the operation of key institutions such as the various branches of government. The Commission recalls that in the investigation, determination of responsibilities, and punishment of the persons responsible for this attack on the democratic institutional framework, the Venezuelan State is called upon to set an example of impartiality and respect for human rights, which implies, among other things, full respect for judicial guarantees and all other rights and guarantees for persons investigated for these acts. The IACHR will closely monitor the development of these processes and its compliance with the provisions of the American Convention on Human Rights that enshrine judicial guarantees.
11. On April 13, 2002, the Commission requested information on the incommunicado detention of President Hugo Chávez Frías, and issued precautionary measures to safeguard the liberty, physical integrity, and judicial guarantees of Mr. Tarek William Saab, Chairman of the Foreign Relations Committee of the National Assembly. In his meeting with the IACHR, President Chávez thanked the Commission for its actions.
12. The IACHR expresses its most forceful condemnation of the violent events that cost dozens of lives and left more than 100 wounded. It is not for the IACHR, in keeping with its competence, to determine the individual criminal liabilities for those events, but it is within its purview to insist on the international obligation of the State to investigate and prosecute the persons responsible for the events of April 11 to 14, in keeping with the rules of due process, and to ensure that they not remain in impunity. It is striking that, almost one month afterwards, the exact number of deaths is not known, nor are the exact circumstances of these deaths. The IACHR underscores the need for and urgency of an in-depth, impartial, and objective investigation into the crimes committed, and the determination of the liabilities and the respective punishments. It is especially necessary to investigate the responsibilities of those who have ordered, fostered, or tolerated the presence of armed civilian individuals and groups in the context of several mass mobilizations, and of those who have sought to cover up and silence those acts of violence. The Commission notes with concern that one month after the events, only three or four persons have been indicted for these acts. In addition, all the victims should be offered the possibility of having access to justice through the procedural mechanisms in force.
13. The Commission had the opportunity to receive the testimony of numerous victims who were injured, as well as the next-of-kin of persons who were killed in the events of April. Without prejudice to the individual liabilities that it is for the Venezuelan judicial authorities to determine, the IACHR, through the testimony of several persons, has been able to make a preliminary finding that armed civilians participated in the opposition march and the pro-government rally organized in downtown Caracas on April 11, and there were serious problems of lack of coordination between the National Guard and the Metropolitan Police. In addition, it is especially worrisome that the large majority of victims expressed great distrust of the authorities in charge of carrying out the judicial investigations, because they have allegedly failed to undertake a serious and transparent investigation.
14. It should be underscored that prior to the events of April, the IACHR was profoundly concerned to learn of the existence of an extreme polarization of Venezuelan society, which had its most tragic and grave expression in the events of April 10, 11, 12, 13, and 14. In the report of the Office of the Special Rapporteur for Freedom of Expression for the year 2000, the IACHR stated that during that year, President Hugo Chávez made certain statements that could be considered as intended to intimidate the press and journalists. His attitude may have contributed to creating an environment of intimidation of the press that does not foster public debate and the exchange of opinions and ideas, which are necessary for coexistence in democracy. In addition, during the visit by the Executive Secretary in February 2002, an atmosphere of intolerance and political polarization was found which, if maintained, could have threatened the full and responsible exercise of freedom of expression and the rule of law, which is aimed at safeguarding democratic institutions.
15. The President stated that the events of April required an in-depth analysis and convened a national dialogue. In the view of the Commission, this response represents a substantial step forward. The IACHR has observed with concern that excessive polarization persists among the government, political parties, labor unions, business organizations, civil society, representatives of some other government bodies, and the media. The IACHR notes that the announced roundtable for dialogue does not yet include all social and political groups. The IACHR urges opposition groups to abandon sectarianism and to engage in the dialogue. The first step should imply that the opposition and the government agree upon minimal conditions for the roundtables for dialogue, in particular, their composition, mechanics, and agenda. The dialogue should be truly plural, broad, sincere, and effective. This requires that all the fundamental actors in national life be able to sit down at the same table, in order to reach the agreements and points of consensus necessary for democratic, peaceful, and responsible coexistence. The Commission appeals to the various factions to be tolerant so as to allow for active participation in the democratic discussion, with creative and inclusive proposals. In this way, the process of national dialogue can be truly fruitful and successful in the briefest possible time. The IACHR offers to assist this process in the areas of its competence.
16. The National Assembly has decided to form a Truth Commission, which will undertake to investigate the facts. The IACHR has always supported truth commissions in the various parts of the hemisphere where they have been established. In particular, the Truth Commission can make a very important contribution to Venezuelan democracy, ensuring that the investigation into the events of April is undertaken in such a manner that its conclusions are accepted by all, and that the persons responsible receive the full weight of the law. The IACHR is of the view that successful Truth Commissions are those that: are made up of individuals who are highly credible and have experience in human rights; are endowed with the necessary financial and human resources; have full access to scientific expert witness opinions and other elements of a criminal investigation; do not interfere unduly with the functions of other organs; enjoy a reasonable time to exhaust all lines of investigation; and, finally, are based on a serious political commitment to accept their conclusions and implement their recommendations, in keeping with the legal order. Finally, the IACHR recalls that the investigations of this and other truth commissions do not relieve the State of its duty to investigate and punish judicially the persons responsible for human rights violations.
17. The Inter-American Commission considers it important to highlight the work done by Venezuela’s non-governmental human rights organizations during the constitutional crisis. These organizations of Venezuelan men and women committed to truth and justice have produced the most credible preliminary inquiries into the events of April.
b. Recent political changes
18. In the analysis of the current human rights situation in Venezuela, the foregoing general considerations take on special relevance, considering that Venezuela has undergone a series of profound political changes in the past several years. Venezuela had not seen so many political changes since 1958, when the Pérez Jiménez dictatorship was overthrown and replaced by a democratic government. The decline in influence of the traditional political parties, and the call for and holding of the National Constituent Assembly culminated with the adoption of a new Constitution. That fundamental law has created new institutions (such as the Poder Ciudadano, or Citizen Power) that give expression to the political changes that have taken place in Venezuela. Indeed, President Chávez himself has repeatedly referred to the existence of a “New Republic.” The country’s official name has even been changed, which suggests the substantial and profound political change Venezuelan society is undergoing.
19. These profound political changes require that one analyze their impact on the strengthening of democracy and on the observance of the rule of law. In this press release, the Commission will analyze the following issues, in addition to the events of April: the new Constitution, the Judiciary, freedom of expression, the Armed Forces and security forces, the right to form and join trade unions, the National Electoral Council, and civil society.
c. The New Constitution
20. The new Constitution contains a series of provisions that will make it possible to strengthen Venezuela as a democratic state under the rule of law whose action is organized around the dignity of the human person. These innovative provisions include according constitutional rank to human rights treaties; obligating the State to investigate and punish, under the law, crimes against human rights; limiting the military justice system by ruling out the possibility of military trials of military (and civilian) personnel for crimes against human rights; establishing no statute of limitations for crimes against human rights; prohibiting pardons and amnesty for serious human rights violations; establishing the right to lodge petitions or complaints before the international organs created for that purpose; expressing the commitment of the Venezuelan State to adopt, in keeping with the procedures laid out in its Constitution and laws, the measures necessary to carry out the decisions of the international mechanisms; and establishing the obligation to make reparations to the victims of human rights violations. Apart from these general provisions, the new Constitution has enshrined important special provisions on human rights, as in the chapter on the rights of indigenous peoples and environmental rights, and economic, social, and cultural rights, the prohibition on forced disappearance of persons, and the creation of new institutions for the protection of human rights, such as the Office of the Human Rights Ombudsman (Defensoría del Pueblo) and the Constitutional Chamber of the Supreme Court of Justice.
21. The Commission considers these profound constitutional changes to be positive and hopes that the full implementation of all its norms is attained as soon as possible. The constitutional provisions outlined, if faithfully implemented, will help improve the protection of human rights in Venezuela.
22. Notwithstanding these significant constitutional advances, the Commission notes that the Constitution also includes various parts that may hinder effective observance of the rule of law. These provisions include the requirement for a preliminary proceeding on the merits (antejuicio de mérito) for high-ranking officers of the Armed Forces prior to starting any investigation into a crime (Article 266(3)); the stipulation of the Office of the Comptroller General of the National Armed Forces without clarifying its relationship with the Office of the Comptroller General of the Republic (Article 291); and the participation of the National Electoral Council in trade union elections. Article 58, which stipulates the right to timely, accurate, and impartial information, has been criticized, among others by this Commission. Furthermore, Article 203 includes the concept of leyes habilitantes, or enabling statutes, and allows for the possibility of a delegation of legislative powers to the President of the Republic, without establishing limits on the content of this delegation. In so doing, new crimes may be established by Executive decrees – as has already happened – and not through statutes adopted by the National Assembly, in violation of the requirements of the American Convention on Human Rights. In addition, the Constitution has suppressed some constitutional provisions that are important for the rule of law, such as legislative review of military promotions, the provision that established the non-involvement of the Armed Forces in political decision-making, and the prohibition on the military authority and the civilian authority being exercised simultaneously.
23. Both the constitutional gains and the backsliding in the new Constitution are reflected in the day-to-day situation in Venezuela. For important situations, the constitutional machinery does not provide for checks and balances as a means of controlling the exercise of public power and to ensure the observance of human rights. Thus, for example, the main legislative powers were derived under an enabling regime granted to the Executive branch that does not establish clear limits on the nature of the matters that can be the subject of such legislative powers.
24. One important issue, from the constitutional standpoint, is what has been called the “transitory regime”; it is of concern to the Commission insofar as it limits the full implementation of the Constitution. The Transition Regime of the Public Power was approved by the National Constituent Assembly on December 22, 1999, before the entry into force of the new Constitution, mainly to ensure the survival of provisions tacitly derogated by the approved constitutional text, until the new statutes required are enacted. While such transition regimes are common when new constitutions are adopted, in Venezuela, this regime has endured beyond the normal time frame, and has included guidelines for executive enactment of legislative provisions beyond what is normally within the scope of a transitory regime. The information received by the Commission indicates that the transitory regime led, for example, to the failure to set in motion the mechanisms provided for in the Constitution for the designation of the magistrates of the Supreme Court of Justice, the Human Rights Ombudsman, the Attorney General, and the Comptroller General. This is all because the Supreme Court of Justice has held that for the Constitution to come fully into force, several specific statutes needs to be adopted, which has yet to happen. The failure of the Constitution to come fully into force, together with the variety of official constitutional texts, creates a situation of juridical insecurity making it difficult to fully consolidate the rule of law. The Commission hopes that the transitory regime is concluded as soon as possible, to which end it is essential that the legislative branch adopt the legislation necessary to develop the constitutional provisions.
d. The Judicial branch
25. The Commission received comments questioning the legitimacy of the election of the current members of the Supreme Court of Justice, the Office of the Human Rights Ombudsman, the Public Ministry, and the Office of the Comptroller General. As a result of the failure to follow the constitutional procedures for choosing those officials, the persons appointed to fill those positions do not have the requisite independence.
26. In this respect, the Commission was informed that the Constitution of the Bolivarian Republic adopted in 1999 provided for a “Judicial Nominations Committee” made up of different sectors of society. The current members of the Supreme Court of Justice, as well as the Human Rights Ombudsman, the Attorney General, and the Comptroller General were not nominated by such committees as required by the Constitution, but rather pursuant to a law issued by the National Assembly after the adoption of the Constitution called the “Special Law for the Ratification or Designation of Officers of the Citizen Power and Justices of the Supreme Court of Justice” for the first constitutional period. The constitutional reforms made to the way these authorities are chosen were not used in this case. Those provisions were aimed precisely at limiting undue interference, ensuring greater independence and impartiality, and allowing various voices of society to be heard in the selection of such high-level authorities.
27. The Commission also noted that questions have been raised regarding the exercise of the powers of the Judicial branch without the proper independence and impartiality. On several occasions, the Supreme Court of Justice is said to have made only decisions favoring the interests of the Executive branch. Decisions were mentioned, among others, in response to questions raised about the Special Law for the Ratification or Designation of the Officers of the Citizen Power and Judges of the Supreme Court of Justice, and the decision as to the duration of the presidential term.
28. The Commission is concerned about the possible lack of independence and autonomy of the other branches of government, vis-a-vis the Executive, as they would indicate that the balance of power and the possibility of keeping a check on the abuses of power that should be characteristic of the rule of law might be seriously weakened. In this respect, the IACHR must note that the separation of powers and independence of the branches of government is an essential element of democracy, according to Article 3 of the Inter-American Democratic Charter.
29. The Commission considers it urgent to adopt the organic laws so as to establish the mechanisms provided for in the Constitution of the Bolivarian Republic of Venezuela for the selection of the members of the Supreme Court of Justice, as well as the Human Rights Ombudsman, the Attorney General, and the Comptroller General.
d.2. The provisional status of judges
issue having to do with the autonomy and independence of the Judicial branch
is the provisional status of judges. After almost three years of
re-organization of the Judicial branch, a significant number of the judges
– from 60% to 90%, depending on the source – are provisional. This
affects the stability, independence, and autonomy that should prevail in the
31. The Commission is aware that the problem of provisional judges pre-dates the present administration by several years. Nonetheless, the Commission has been informed that the problem of provisional judges has become more severe and more widespread since the current administration began the process of restructuring the Judiciary. The President of the Supreme Court of Justice informed the IACHR of progress made in correcting that situation.
32. The Judicial branch has been established to ensure compliance with the laws, and is undoubtedly the fundamental organ for protecting human rights. In the inter-American human rights system, the adequate functioning of the Judiciary is an essential element for preventing the abuse of power by State organs, and, accordingly, for protecting human rights. In order for the Judicial branch to be able to perform effectively its role in overseeing, ensuring, and protecting human rights, it is not sufficient that it exist formally; it must also be independent and impartial.
33. The Commission expresses the importance of speeding up the process aimed at reversing the situation in which a significant number of Venezuelan judges are provisional, immediately and in keeping with its domestic laws and its international obligations under the American Convention. The need for judges to be designated with full guarantees cannot justify the persistence of their provisional status for a lengthy period.
e. Freedom of expression
34. The importance that the IACHR attributes to respect for freedom of expression is evident in the appointment of a Special Rapporteur for Freedom of Expression, which had wide-ranging support from the Heads of State and Government of the Hemisphere. It should be recalled that during the Summit of the Americas held in Chile in April 1998, the Heads of State and Government made public their concern over the status of freedom of expression in the countries of the Hemisphere. Respect for this right is an essential requirement for the very existence of a democratic society and contributes to the protection of other fundamental rights.
35. The Commission, through the Special Rapporteur for Freedom of Expression, has paid special attention to the status of freedom of expression in Venezuela in its annual reports and in the report submitted to the IACHR after its first visit, in February of this year. Based on the information received during this visit, one can conclude that many of the observations of the IACHR and its Office of the Special Rapporteur for Freedom of Expression during the above-noted visits still apply.
36. As noted above, the IACHR has found that while it is possible to criticize the authorities, criticism brings on intimidation, which limits the possibility of free expression. In this regard, the IACHR finds that in Venezuela newspapers have not been shut down, nor have journalists been arrested. Nonetheless, protection of free expression cannot be limited to the absence of censorship, newspaper closings, or arbitrary detentions of those who speak freely, and journalists need an atmosphere of security and guarantees. In the particular case of journalists, the Commission found repeated verbal and physical attacks in recent months and days. It is the responsibility of the State to provide protection to citizens, including social communicators, through forceful measures aimed at disarming sectors of the civilian population who operate outside the law, and who could be involved in such acts.
37. Information has been received on other ways in which the full exercise of the freedom of expression has been hindered. These include the laws that criminalize offensive speech aimed at public officials, known as contempt laws (leyes de vilipendio or leyes de desacato). The IACHR has already held that such laws are incompatible with Article 13 of the Convention. Another example is the abusive use of emergency broadcast systems. The IACHR issued a press release, in a timely fashion, condemning the abusive and unnecessary use of this mechanism, which, used in a highly discretionary manner, and for purposes alien to the public interest, may constitute a form of censorship. The IACHR has been pleased to receive the information provided during this visit that indicates that to date there has been a considerable decline in the use of this mechanism. Nonetheless, the IACHR expects that in the future, clear criteria will be considered for the use of such emergency broadcast systems that take account of the public interest and real emergencies or truly compelling national needs. The various kinds of pressure brought to bear on the broadcast media by initiating administrative proceedings which, if abusive, also constitute an indirect restriction on the freedom of expression, are a third example.
38. The difficulty of public access to information continues to go unanswered; accordingly, any initiative by the government to facilitate free access to information will contribute to ensuring that the citizenry is better informed.
39. The IACHR has been concerned by the scant information, or at times total lack of information, available to Venezuelan society during the days of the institutional crisis of April. Although there may be any number of justifications to explain this lack of information, to the extent that the suppression of information resulted from politically-motived editorial decisions, this should be the subject of an essential process of reflection by the Venezuelan media about their role at that moment.
40. Finally, the IACHR states its recognition of the valor of journalists who have continued to pursue their activities, even at risk to their physical integrity. As noted above, the IACHR considers that the intimidation of journalists has a devastating effect on democracy, thus it calls on Venezuelan society to embark upon a period of profound reflection, and highlights the need for the various sectors of society and of the government to refrain from identifying the journalists and other social communicators as their opponents’ allies.
f. The Armed Forces and the Security Forces
41. During its on-site visit, the IACHR was concerned to hear several accounts of the undue influence of the Armed Forces in the political life of the country, and the existence of excessive involvement by the Armed Forces in political decisions. That concern can be traced back to the fact that the 1999 Venezuelan Constitution removed a rule traditionally included in the constitutions that preceded it, according to which the Armed Forces are an “apolitical and non-deliberating” body. Also of special concern to the Commission is that the government and the social sectors have incited the Armed Forces or groups of officers to support them, and even to alter the constitutional order. The IACHR recalls that, under Article 4 of the Inter-American Democratic Charter, the constitutional subordination of all state institutions to the civilian authority is fundamental.
42. The Armed Forces cannot be involved in political decision-making. It is essential that there be a clear step forward in applying the military and criminal codes that punish such conduct, to avoid new acts of insubordination on the part of sectors of the Armed Forces against the democratically-elected civilian authority. The reality in the region shows that the involvement of the armed forces in politics generally precedes departures from the constitution, which in almost all cases leads to serious human rights violations. It is a responsibility of all sectors, but especially the Executive, to ensure that the Armed Forces play exclusively the roles of defending the national sovereignty for which they have been established and trained.
43. The Commission notes that the Armed Forces refused to carry out repressive plans against the civilian population during the events of April, particularly April 11. This contrasts favorably to the tragic examples in the history of region. Despite the insurgent position of some officers, one must also highlight that as a whole, the Armed Forces upheld the constitutional order.
44. In addition, the IACHR has observed the lack of coordination of the different forces in charge of public security. In particular, the Commission has learned of conflicts due to the divergent actions of the Metropolitan Police and National Guard, under the direction of different authorities. In addition, it has been concerned to learn that various security forces are used for politically partisan purposes rather than to guarantee security for all Venezuelans.
g. The freedom to form and join trade unions
45. On December 3, 2000, a referendum was held by the Government, through a legislative measure, in which the voters were asked whether they agreed with reforming the trade union leadership through elections to be held within six months. During that period, the directors of Venezuela’s trade union federations (centrales, federaciones, and confederaciones) were suspended.
referendum resulted in a significant victory of the position in favor of
reforming union leadership, accompanied by widespread abstentions. In
accordance with the prevailing vote in favor of the reforms, the
above-mentioned directors were effectively suspended from their trade union
functions, and new elections were held, in keeping with the Elections
Statute issued by the National Electoral Council (CNE) to regulate new
elections for union leaders.
47. The IACHR is of the view that having allowed the population at large to participate in that referendum, i.e., including persons other than union members, entailed a violation of the right to form and join trade unions, and the right of workers to elect their leaders. The above-mentioned actions were severely criticized by the Committee on Freedom of Association of the International Labor Organization (ILO).
48. Once the elections were held, in keeping with the provisions laid down by the National Electoral Council, the authorities of the individual trade unions and the union federations were elected. The Commission has received information indicating that the Confederación de Trabajadores de Venezuela (CTV) represents the largest number of trade unions. Nonetheless, due to different interpretations of what has happened, the officers of the CTV elected in the election called by the national government have yet to be recognized by the national authorities.
49. The Commission notes that the right to elect and to be elected and to organize in trade unions are rights recognized in the American Convention, and in the Inter-American Democratic Charter. The right to form and join trade unions, without undue interference from the state, is, in the view of the IACHR, an important element in any democracy. It requires that the conflict that has arisen due to the failure to recognize the authorities of the CTV be resolved as soon as possible, and in keeping with Venezuela’s international obligations.
h. The National Electoral Council
50. During its on-site visit, the Commission received numerous observations regarding the composition of the National Electoral Council, in which the electoral power is vested according to the terms of the Constitution. Its members have yet to be selected in keeping with the procedure regulated by the Constitution. This would suggest that in practice, the Council is kept from making decisions in all matters that are important for all types of elections under its jurisdiction.
51. The organs of public power with jurisdiction to settle claims regarding the transparency and legality of elections should be endowed with the utmost impartiality, and should resolve such matters fairly and promptly, as the best way to ensure the effective exercise of the right to elect and be elected established in Article 23 of the American Convention. Accordingly, the Commission recommends that the full and definitive composition of the National Electoral Council proceed as regulated in the Constitution.
i. Civil Society
52. The IACHR
observed live action, debate, and democratic development of civil society in
Venezuela. In this regard, it had an opportunity to meet with some
representative sectors of civil society. The Commission highlights the work
done by Venezuelan non-governmental human rights organizations during the
53. The Commission wishes to call attention to the importance of the concept of civil society being understood in democratic terms, without unreasonable exclusion or unacceptable discrimination. In this regard, the IACHR has had the opportunity to learn of several decisions of the Supreme Court of Justice that have laid down a doctrine according to which non-governmental organizations that receive grants from abroad or whose boards of directors include foreigners or religious men or women, are not part of civil society, and therefore would be excluded from the right to participate in the Nominations Committees provided for in the Constitution for selecting the persons for the organs of the Citizen Power, the Electoral Power, and the Supreme Court of Justice. Acknowledging the power of the State to issue reasonable regulations of the right to association in the context of a democratic society, the Commission calls attention to this jurisprudential thesis, which, applied in discriminatory terms against independent organizations, has an exclusionary effect that is unacceptable for the open participation of civil society in Venezuela.
54. The Commission is especially concerned by the information it has received indicating that various civil society organizations have been subject to harassment. Indeed, the IACHR has recently issued precautionary measures for the protection of members of a well-known human rights organization, due to the threats they have received.
55. The Commission takes this opportunity to recall that the organizations engaged in the defense and promotion of human rights play a crucial role in a democratic state. In keeping with the American Convention and several resolutions of the OAS General Assembly, Venezuela is obliged to protect and ensure the free operation of civil society organizations.
56. During its on-site visit, and even before it, the IACHR received several statements of concern over the creation, training, organization, and financing with funds from the public treasury of the so-called "Bolivarian Circles," whose main purpose is said to be to give political support to the regime of President Chávez. Some of the members of those circles have been accused of acting as shock troops to verbally and physically assault those who they identify as enemies of the political process, in particular leaders of the political opposition, including members of the National Assembly and municipal authorities, journalists and social communicators, and social leaders, especially in the trade union and university movements. It is also said that some of these circles are armed. The Government rejects these charges and asserts that the "Bolivarian Circles" are mere instruments of social action and social solidarity.
57. Political participation, the right to association, and the right to freedom of expression are rights guaranteed by the American Convention. In this regard, the "Bolivarian Circles" as free groups of citizens or grass-roots organizations that support the political project of the President, may under certain conditions be a suitable channel for the exercise of those rights. Even so, the Commission understands that the expression of certain politically partisan ideas cannot be privileged to the detriment of others, nor can it be a justification for acts of violence or restrictions on the rights of third persons with different political views or certain professional roles, especially if it is supported by public financing. The Commission reminds the Government that it is the responsibility of the State to ensure the effective exercise of the rights of all inhabitants of Venezuela. The international responsibility of the State is triggered if groups of civilians act freely violating rights, with the support or acquiescence of the Government. Accordingly, the Commission called on the Government to investigate seriously the acts of violence attributed to some "Bolivarian Circles," and to take, as urgently as possible, all measures necessary to prevent these acts from recurring. In particular, it is essential that the monopoly of force be maintained exclusively by the public security forces; complete disarmament of any group of civilians should immediately be guaranteed.
58. According to the information collected by the IACHR, one cannot dismiss the possibility of other armed groups existing, whether Government partisans or opposition groups. It is essential to investigate the existence of such groups, and to disarm them completely, as quickly as possible.
II. THE DEATH SQUADS (LOS GRUPOS DE EXTERMINIO)
59. According to information received by the IACHR, and particularly what has been pointed out by the Human Rights Ombudsman, there are “death squads” (los grupos de exterminio) made up of state security officers operating in the states of Portuguesa, Yaracuy, Anzoátegui, Bolívar, Miranda, and Aragua. According to official figures in the state of Portuguesa, which the IACHR visited, there have been 131 extrajudicial executions perpetrated by those groups since the beginning of 2001. The Commission observed with serious concern that the grupos de exterminio are not only an unlawful mechanism of social control, but also, in the case of Portuguesa, part of a for-profit criminal organization operating within the state police force. These organizations continue operating and threatening the relatives of victims and witnesses, who are absolutely defenseless.
60. The persecution and extermination of individuals who belong to specific groups, such as alleged criminals, is a particularly reproachable violation of the right to life and of the right to humane treatment, which has repeatedly been condemned by this Commission. The fact that security officers belong to such groups also represents a radical departure from due process and the rule of law. As an extreme crime-fighting practice, it can only result in greater citizen insecurity. The lack of due diligence in terms of investigating, prosecuting, and punishing the members of the so-called grupos de exterminio is fundamental in allowing them to operate.
61. Given the gravity of the situation, the Commission demands a serious and thorough investigation of the grupos de exterminio, the prosecution and punishment of those responsible without delay, as well as reparation for the harm caused. In addition, the Venezuelan State asks that effective measures of protection be granted to protect witnesses and the victims’ next-of-kin. The Commission considers it crucial that human, technical, and logistical resources be specially earmarked to investigate these “grupos de exterminio” and that the members of the security forces involved be dismissed immediately.
III. FINAL COMMENTS
62. The main source of democratic legitimacy is that granted by the popular will, expressed in free, periodic, and universal elections. Yet elections in themselves are not sufficient to ensure the full observance of democracy. As indicated in the Inter-American Democratic Charter, the essential elements of representative democracy include, among others, respect for human rights and fundamental freedoms; access to and the exercise of power subject to the rule of law; the holding of periodic, free, and fair elections, based on universal suffrage and secret balloting as an expression of the popular sovereignty; a pluralistic regime of political parties and organizations; and the separation of powers and independence of the various branches of government. In addition, the following are fundamental components of the exercise of democracy: transparency in government, openness, responsible public administration on the part of governments, respect for social rights, and respect for freedom of expression and freedom of the press. The constitutional subordination of all the institutions of the State to the lawfully-constituted civilian authority, and respect by all entities and sectors of society for the rule of law, are also fundamental for democracy. In this context, the functioning of an independent and impartial Judiciary as a guarantor of the protection of human rights, as a vehicle for obtaining justice from the victims, and as an organ of oversight and a check on the action of the other branches of government is fundamental to the rule of law.
63. While periodic elections are necessary but not sufficient elements of democracy, nothing justifies a break with the constitutional order or the effort to impede the operation of key institutions, such as the various organs of government. It is not acceptable to appeal to maneuvers that completely suppress, illegally, the exercise of power by the authorities freely elected by the people.
64. The IACHR, based on its experience of over 40 years of promoting human rights in the Hemisphere, considers it fundamental that all sectors of society seek mechanisms or agreements that make it possible to respect and observe the human rights recognized in the American Convention and in the Venezuelan Constitution, which is the frame of reference for all protagonists in public life in Venezuela. Polarization and intolerance not only hinder the observance of democratic institutions, but lead dangerously to their weakening. A weak democracy, in the view of the Commission, does not allow for the vigorous defense of human rights.
65. Priority should be accorded to rejecting any means of involvement by the Armed Forces or National Police in political decision-making and to applying the military and criminal codes that punish such conduct. A decisive step forward in this direction is essential to avoid new acts of insubordination by sectors of the Armed Forces against the democratically-elected civilian authority. The reality in the region shows that the involvement of the Armed Forces in political decision-making is generally the prelude to a breakdown in the constitutional order, which in every case leads to grave violations of human rights. It is the responsibility of all sectors, especially the Government, to ensure that the Armed Forces perform exclusively their role of defending national sovereignty, for which they have been established and trained.
66. The IACHR considers that the lack of independence of the Judiciary, the limitations on the freedom of expression, the active role of the Armed Forces in political decision-making, the extreme degree of polarization of society, the actions of the death squads, the scant credibility of the oversight institutions due to the uncertainty surrounding the constitutionality of their designation and the partiality of their actions, the lack of coordination among the security forces, all represent a clear weakness of the fundamental pillars of the rule of law in a democracy, in the terms of the American Convention and the Inter-American Democratic Charter. Accordingly, the Commission calls for the immediate strengthening of the rule of law in Venezuela.
67. In the current situation in Venezuela, the international protection of human rights is even more fundamental. In this regard, it is especially important that the Government of President Chávez and all other organs of the state fully abide by the decisions and recommendations of the organs of the inter-American system, in their decisions in individual cases, in their judgments, and in particular in the requests for precautionary measures issued to protect persons at grave risk, and when necessary to avoid irreparable harm. The Inter-American Court and the Inter-American Commission are important mechanisms available to all persons under the jurisdiction of the Venezuelan State to try to seek independent and impartial justice.
68. The Commission appeals to the authorities of the State and the various expressions of civil society to analyze this press release and the report that the Commission will prepare in coming months, and to discuss constructively how to carry out its recommendations, with a view to advancing towards the full observance of human rights for the inhabitants of Venezuela, with no distinctions whatsoever.
69. The IACHR will continue to observe very closely the development of the human rights situation in Venezuela. The visit culminating today was an excellent opportunity to pursue this aim, and to further the dialogue that the Commission maintains with the Venezuelan authorities and Venezuelan society, within the scope of its competence. The IACHR reiterates its offer to collaborate with the Government of Venezuela and with Venezuelan society as a whole to help strengthen the defense and protection of human rights in a context of democracy and institutional legality. In addition, the Commission hopes to make a new visit to Venezuela in the near future to follow up on the recommendations and conclusions presented in this press release.
May 10, 2002
 The IACHR also met with the following authorities: Vice-President José Vicente Rangel; Foreign Minister Luis Alfonso Dávila; Defense Minister Gen. Lucas Rincón Romero; Interior and Justice Minister Capt. Ramón Rodríguez Chacín; former Agriculture and Lands Minister Efrén de Jesús Andrade; Attorney General Julián Isaías Rodríguez; National Assembly Speaker William Lara; Chairman of the Committee on Justice and Human Rights, Carlos Tablante; Iván Rincón, of the Supreme Court of Justice; Director Henry Vives of the Metropolitan Police; Francisco Belisario Landis; General Commander of the National Guard; and the Human Rights Ombudsman, German Mundaraín. The IACHR delegation that visited the city of Portuguesa met with the Governor, the Superior Prosecutor for the state of Portuguesa, the Secretary for Citizen Security, officials from the Technical Criminal Investigations Corps, the Commander of Garrison No. 41, the Commander General of the Police, the Human Rights Ombudsman, and the coordinator of public defenders.
 The IACHR met with representatives of the following non-governmental human rights organizations: COFAVIC, PROVEA, Red de Apoyo por la Justicia y la Paz, Jesuit Refugee Service, Vicariate of Caracas, and the Center for Human Rights of the Universidad Católica.