REPORT ON THE SITUATION OF HUMAN RIGHTS IN VENEZUELA

INTRODUCTION

1.         The Inter-American Commission on Human Rights (IACHR) is a principal organ of the Organization of American States (OAS) whose mandate is to promote the observance and defense of human rights and to act as the consultative organ of the Organization in this regard.  The powers of the IACHR 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.

2.         The Commission, whose headquarters are located in Washington, D.C., U.S.A., is composed of seven members nominated by member states of the OAS and individually elected by the General Assembly of the Organization.  Members serve four-year terms which can be renewed once.  On a yearly basis, the Commission selects from among its members a board of officers consisting of a President and two Vice-Presidents.  Also part of the Commission is its Executive Secretariat, which comprises an Executive Secretary and the legal and administrative staff necessary for the performance of its functions.  The Executive Secretariat is permanently housed at the headquarters of the IACHR. 

3.         In fulfilling its mandate to promote and protect human rights, the IACHR performs several functions within the framework of the American Convention on Human Rights (“American Convention” or “Convention”), the American Declaration on the Rights and Duties of Man, other international treaties, and its Statute and Rules of Procedure.  Among these functions are the hearing of petitions and individual cases of human rights violations; precautionary measures aimed at preventing irreparable damage to persons; on-site visits to member countries of the OAS made with respect to a specific case under review by the Commission, [1] to conduct a general observation of the human rights situation in the country or to look at a specific issue or particular situation[2]; production of various types of reports, be they general or specific; and work through “Special Rapporteurs” on specific issues related to human rights.

I.         BACKGROUND OF THE REPORT

4.         In the context of the functions noted above, the IACHR regularly monitors THE human rights situation in OAS member states.  From 2000 to the present, the Inter-American Commission has been closely following events in the Bolivarian Republic of Venezuela and has acted within the bounds of its mandate to ensure the observance of human rights in that country.  In this respect, the Commission has employed the various mechanisms envisaged by the American Convention for the protection of human rights, namely the case system, adoption of precautionary measures, request for provisional measures from the Inter-American Court of Human Rights, on-site visits to the country and press releases.  The following is a brief outline of these undertakings.

5.         In 2000, the Commission, through its Office of the Special Rapporteur for Freedom of Expression, observed the development of an atmosphere of hostility at the highest levels of government as a mechanism of direct and indirect pressure on the media and social activists.[3]

6.         Following this, the Executive Secretary of the IACHR and then Rapporteur for Freedom of Expression, Dr. Santiago A. Canton, at the invitation of the Government of Venezuela, visited the Bolivarian Republic of Venezuela on February 5 to 8, 2002.  The objective of this visit was to collect information on freedom of expression in Venezuela and to perform a preliminary evaluation in aid of an IACHR on-site visit scheduled for May 2002.[4]   In addition, Dr. Canton’s visit represented a response to concerns expressed by several sectors of civil society regarding recent developments related to freedom of expression in the country.

7.         During the serious events of April 11, 2002, the Commission condemned the coup d’état against the constitutional order[5]. The Commission issued a press release to this effect on April 13, 2002 in which it expressed, inter alia, its strong condemnation of the acts of violence and its regret that the most senior authorities were removed from public office, and cautioned that these acts represented a breach of constitutional order. Moreover, the Commission noted that, from April 12 to 13, arbitrary arrests and other violations of human rights claimed the lives of more than 40 persons and caused injury to one hundred others.

8.         The Commission later conducted an on-site visit to the Bolivarian Republic of Venezuela from May 6 to 10, 2002. Held within the framework of the American Convention to which Venezuela is a signatory, and the governing Statute and Rules of Procedure of the IACHR, the visiting party comprised the President of the Commission and Rapporteur for Venezuela, Dr.  Juan E. Méndez; First Vice-President, Dr. Marta Altoguirre, and Commissioners Professor Robert K. Goldman, Dr. Julio Prado Vallejo and Ms. Susana Villarán.  Also participating were the Executive Secretary of the IACHR, Dr. Santiago A. Canton, Special Rapporteur for Freedom of Expression, Eduardo Bertoni, and staff from the Executive Secretariat.[6]

9.         Upon completion of this on-site visit, the Commission issued a press release presenting preliminary comments based on its observation of the general human rights situation in the country and offering certain recommendations that in its opinion would serve to mitigate some of the serious problems identified.[7]

          10.       On December 12, 2002, the Commission issued a press release in which it expressed serious concern over the deepening crisis in Venezuela and urged member states of the OAS to take immediate steps to “work with Venezuelans in seeking an urgent solution that will prevent further loss of human life and ensure Venezuelans that the rule of law will remain fully in force.”[8]

11.       During the 117th Regular Session of the Commission, held between February 20 and March 7, 2003, the IACHR continued inquiries into the status of the rule of law in Venezuela. On March 10, 2003, the IACHR issued a press release reiterating its concern about the continuing deterioration of the rule of law in Venezuela.

12.       In response to wishes expressed by the Government of Venezuela during the on-site visit, the Commission had planned to carry out a series of follow-up visits.  To date, these visits have not been conducted due to the failure on the part of the Venezuelan State to establish the dates.  It is the view of the IACHR that the presence of the Commission in the country will help significantly to bolster the defense and protection of human rights in a context of democracy and institutional legality.  In this light, the Commission requests that a date be set for an on-site visit.

13.       In relation to this matter, the General Assembly of the Organization of the American States (OAS) in Resolution AG/1917 (XXXIII-O/03), with respect to the Annual Report of the IACHR, resolved the following:

To note with satisfaction the decisions taken by governments of member states to invite the Inter-American Commission on Human Rights to visit their respective countries and to encourage all member states to continue this practice.[9]

II.         SCOPE OF THE PRESENT REPORT, ITS APPROVAL AND FOLLOW-UP

14.       This report will analyze the present situation in Venezuela, with specific reference to the various aspects of the current status of the rule of law in the country.

15.       As noted above, by virtue of its competence as a key organ of the Organization of the American States charged with the protection and promotion of human rights in the Americas and in accordance with its mandate, as stipulated in the American Convention on Human Rights and more specifically defined in its Statute and Rules of Procedure, the Inter-American Commission monitors human rights developments in each member state of the OAS.

16.       The present report was prepared on the basis of a diverse array of information and materials compiled and analyzed by the Commission, including those collected during its on-site visit to Venezuela in May, 2002.  In addition to reflecting insights gathered on that occasion, the report refers to information compiled prior to and in preparation for the visit.  Material referred to in the report also includes updated information provided by governmental, intergovernmental, non-governmental, academic and media sources through the Commission’s normal monitoring procedures, as well as through the processing of individual petitions.  The report was prepared on the basis of this information with a closing date of November 4, 2003.

         17.       The draft “Report on the Situation of Human Rights in Venezuela” was approved by the Commission during its 118^th Regular Session.

18.       The report was transmitted to the State by the Executive Secretary on November 13, 2003, with the request that the former present any observations it deemed pertinent within the fix dead line of a month.  On December 12, 2003 the Government requested an extension of the due date to present its observations.  On December 16, 2003 the IACHR informed the Government that an extension could not be granted while indicating that the Commission would await a reasonable time before publishing the report approved by the IACHR, so as to allow the Government to submit its observations which would be publish in the IACRH web page.  On December 29, 2003 the IACHR ultimatelly approved the report and the publication without having received the observation of the Government.

19.       Finally, it should be reiterated that the present report was prepared in a context of political and institutional instability.  In so doing, the IACHR takes note of the efforts made in negotiations between the Government of President Chávez and representatives of Coordinadora Democrática [Democratic Focal Point], the conduct of which was supported and facilitated by the Secretary General of the OAS, César Gaviria, with technical support of the United Nations Development Programme and the Carter Center, and also benefiting from the support of the Group of Friends of Venezuela.  Among its activities, the Commission takes note of the first formal agreement reached between the Government and the Opposition in approving a seven-point document entitled "Declaration against Violence, and in support of Peace and Democracy" signed by the parties on Monday, February 17, 2003, one hundred days after its  establishment.  The IACHR also considers a significant advance the Agreement recently signed by representatives of the Government and the Opposition, on May 29, 2003, in which negotiations were brought to a close and both parties indicated that the electoral resolution of the country’s crisis would be achieved through the application of Venezuela’s constitutional provisions.

III.        RELEVANT BACKGROUND

20.       The Commission considers it appropriate to present certain normative and factual antecedents as a context for the analysis of the human rights situation in the country.  As follows, the IACHR will present a brief outline of the legal system created by the Constitution of the Bolivarian Republic of Venezuela, placing special emphasis on the constitutional structure of government and to the regulatory framework for the protection of the human rights in Venezuela.  In addition, certain historical and factual aspects of the present political situation will be briefly discussed.

            A.         The Judicial System and the Protection of Human Rights

1.         The new Constitution of the Bolivarian Republic of Venezuela

21.       The constitutional process in Venezuela had its origin in the manifesto of current President, Hugo Chávez Frías, for the elections of December 1998.  Chávez, the candidate of the Polo Patriótico party at the time, undertook to convene a National Constituent Assembly in the event of his victory in the presidential elections.  His proposal, entitled "the Hugo Chávez Proposal for the Transformation of Venezuela" articulated the concept of a new social pact to bolster the country’s democratic foundations.

22.       Following the election of Hugo Chávez to office, the focus of national politics became the realization of the constitutional process. With respect to the institutional mechanisms for convening a National Constituent Assembly, the option of calling a consultative referendum was proposed, however some political sectors considered it necessary to reform the Constitution to include a standard for convening the Assembly and indicating the mechanism for so doing. As a result of these differences of opinion, an appeal was made to the Supreme Court—the supreme judicial organ at that time—to rule on the feasibility of convening the Constituent Assembly via consultative referendum without prior reform of the Constitution.  With respect to this issue, the Court resolved that:

…it is indeed permissible to convene a referendum, in the form envisaged in Article 181 of the Suffrage and Political Participation Act, to consult the opinion of the majority regarding the possible convening of a Constituent Assembly, in the terms expressed in this ruling.[10]

23.       Consequently, on April 25, 1999, a consultative referendum was held though which the decision to call a Constitutional Process was submitted to the will of the majority.  The consultation produced a positive response: 85% of the participating electorate expressed their consent to hold elections for the purpose of forming a Constituent Assembly.[11]  In light of this, the election of members that would comprise the National Constituent Assembly was conducted in Venezuela on July 25 of that year; 104 regional candidates, 24 national and 3 indigenous representatives were elected. This Assembly was responsible for the drafting of the new Constitution. Constitutional representatives met from August 3 to November 15, 1999 and, in the course of their deliberations, established and drafted a new Constitution that changed Venezuela’s institutional structure.

24.       On December 15 of the same year, the referendum on the approval of the Constitution of the Bolivarian Republic of Venezuela drafted by the National Constituent Assembly was conducted.[12]

25.       Article 2 of the new constitution reaffirms democratic Government, stipulating that:

Venezuela is constituted as a democratic and social state subject to the rule of law and justice, and holds up as supreme guiding principles of its legal system and its actions the values of life, liberty, justice, equality, solidarity, democracy, social responsibility and, in general, the preeminence of human rights, ethics and political pluralism.

26.       The standards introduced into the new National Constitution required the restructuring of the branches of government in Venezuela.  Once the basic text was approved, it became necessary to re-legitimize some branches and to elect others, for which new elections were held on July 30, 2000.  Elections to the national, state and local executive authorities (President, governors, and mayors) were held on that day. In these polls, President Hugo Chávez was returned to office by a majority of 58 percent of the voters. In the case of those branches to which re-legitimization did not apply, such as the Supreme Court, electoral branch and citizens’ branch [poder ciudadano], a special regime was used to elect their members, as will be described in the section on the judicial branch.[13]

2.         The Constitutional Structure of the Bolivarian Republic of Venezuela

27.       The constitutional text of the Bolivarian Republic of Venezuela regulates the organization of the State by means of systems of distribution and division of public power.  In accordance with constitutional standards, government in Venezuela is structured vertically in terms of National, State and Municipal Authorities, and horizontally, in terms of Legislative, Executive, Judicial, Citizens’ and Electoral Branches.  The Constitution incorporated to the institutional life of the State two new independent branches of government: the Electoral Branch and the Citizens’ Branch, with ample authority in the exercise of their powers, as outlined below.

a.         The National Legislative Branch

28.       The Venezuelan Constitution envisages unicameral legislative power exercised by the National Assembly comprising deputies chosen in each federal entity by universal, direct, individual suffrage by secret ballot with proportional representation for a period of five years.  In addition, indigenous peoples are represented by three elected deputies. Article 200 of the aforementioned constitution stipulates that:

Deputies of the National Assembly shall enjoy immunity in the exercise of their functions from the date of their proclamation until the completion or termination of their mandate. Alleged crimes committed by members of the National Assembly will be heard privately by the Supreme Court of Justice, the sole authority capable of ordering, with the authorization of the National Assembly, their arrest and the continuation of legal proceedings.  In case of flagrant violations of the law committed by a parliamentarian, the competent authority shall put him or her under house arrest and immediately inform the Supreme Court of Justice of this fact.

Government officials who violate the immunity of members of the National Assembly, will be held criminally responsible and be punished in accordance with the law.

29.       The National Assembly has broad powers, including the power to legislate on matters of national competence, as well as the operation of the different branches of the national government, to propose amendments to and reforms of the Constitution, to exert some measure of control over the Government and the National Public Administration, within the bounds established by the Constitution itself, to debate and to approve the national budget.  Without diminishing any of these standard functions, the new constitutional text confers other powers such as that of the promotion of citizen participation and veto powers to the Vice-President and the Ministers.[14]

b.         The Executive Branch

30.       National executive power is exercised by the President of the Republic, whose mandate is for a period of six (6) years.  According to the standards introduced in the new Constitution, the President runs for re-election for only one successive term.[15]   The Executive Branch also comprises the Vice-President, Ministers and other officials as determined by the respective Constitutional standards and the law.

31.       Among the duties and powers to be exercised by the presidency of the Republic under the constitution, is that of complying and enforcing compliance with the law and the Constitution itself, directing Government activity, directing the external relations of the Republic, signing and ratifying international treaties, directing and acting as commander in chief of the National Armed Forces and promoting and appointing officials starting from the rank of Colonel or Ship’s Captain, and issuing legally-binding decrees after authorization by means of an implementing law, convening special sessions of the National Assembly, regulating laws, managing the treasury, negotiating national loans, decreeing additional budget appropriations, signing contracts of national interest, appointing, with the prior authorization of the National Assembly, the Attorney General and heads of permanent diplomatic missions, and leading the National Assembly.[16]

32.       Other functions of the President of the Republic are to declare states of emergency and the restriction of constitutional guarantees in the cases envisaged in the Constitution, to formulate development plans, to grant pardons, to establish the number, organization and competence of ministers and other national government bodies, to dissolve the National Assembly and to call referenda in cases envisaged by the Constitution, and to convene and preside over the National Defense Council as well as the other functions that may be attributed by the Constitution or law.[17]

c.         The Judicial Branch

33.       Article 253 of the Venezuelan Constitution stipulates that "the power to administer justice emanates from the citizens and is exercised in the name of the Republic by authority of law...." The Judicial Branch consists of the Supreme Court of Justice and such other courts as may be determined by law, the public Ministry, Office of the Human Rights Ombudsman, criminal investigation agencies, justice system officials and auxiliary staff, citizens participating in the administration of justice, the penitentiary system, alternative means for the administration of justice and the lawyers authorized for its exercise.  Justice is administered in the communities by justices of the peace, who are elected by universal, direct suffrage by secret ballot.

34.       The Constitution also stipulates that "the Judicial Branch is autonomous” and establishes the “operating, financial and administrative autonomy of the Supreme Court of Justice."[18]  "In order to guarantee impartiality and independence in the exercise of their official functions, magistrates, judges, prosecutors in the Public Ministry and ombudsmen, from the date of their appointment and until they leave office, shall not be permitted, otherwise than by exercising their right to vote, to engage in partisan political, professional association, trade union, or similar activism; nor to engage in private activities for profit, which are incompatible with their official functions, either directly or through any interposed person; nor to perform any other public functions, with the exception of educational activities.”[19]

35.       In accordance with Article 255, appointment to a judicial position and the promotion of judges shall be carried out by means of public competitions to ensure the capability and excellence of the participants, with selection by the juries of the judicial circuits, in such manner and on such terms as may be established by law.

36.       The duties and powers of the Supreme Court of Justice enshrined in Article 266 of the Constitution include the exercise of constitutional jurisdiction, ruling as to whether or not there are grounds for impeachment of the President, Vice-President, members of the National Assembly or the Supreme Court itself, Ministers, the Public Prosecutor, Attorney General, Comptroller General, Human Rights Ombudsman, Governors, officers, generals and admirals of the National Armed Forces and heads of the Republic’s diplomatic missions.  The Supreme Court is also charged with resolving administrative disputes arising between the Republic, any state, municipality or other public entity where the other party is one of these entities; declaring the invalidity of regulations, hearing appeals regarding interpretation of the content and scope of the laws; resolving conflicts of jurisdiction between the courts and hearing final appeals in law.  Moreover, Article 267 stipulates that it is the responsibility of the Supreme Court to direct, govern and administer judicial power, as well as to inspect and oversee the country’s courts and ombudsman’s offices, in addition to presenting and administering its own budget and the budget of the Judicial Branch.

d.         The Citizen Power branch [Poder Ciudadano]

37.       The Citizen Power branch comprises the Office of the Attorney General, the Office of the Ombudsman and the Office of the Comptroller General, whose holders together comprise the Republican Morals Council, the direct action arm of the Citizen Power branch. [20]

38.       The fundamental characteristic of this Branch is its independence from the other branches of government, and its organs enjoy functional and administrative autonomy.  Under the Constitution, it is assigned powers to prevent, punish and investigate acts which contravene public ethics and the administrative morals.  In addition, it is empowered to ensure the proper management and legitimate use of public assets, as well as compliance with and the application of the principle of legality in all administrative activities of the State.[21]

39.       Another of the specific powers of this authority involves the formulation of warnings regarding the failure of relevant authorities to fulfill their obligations.[22]  To this end, all organizations are expected to co-operate with the Republican Morals Council in carrying out their functions and investigations.[23]

i.          Office of the Ombudsman

40.       This organ of the State is directed by the Human Rights Ombudsman.  The Ombudsman is responsible for the defense and oversight of the rights and guarantees established in the Constitution and international treaties on human rights, in addition to the legitimate, joint and several interests of the citizens.[24]

41.       The Office of the Human Rights Ombudsman is an official unit that addresses demands and complaints by the public regarding the actions of the administration and government officials. In performing this role, the Office has the following functions: the protection of human rights, control of the government bureaucracy, contribution to the correction or redress of administrative injustices, informing the Government of inconsistencies in its administration.[25]

ii.          The Public Ministry [Ministerio Público]

42.       The Public Ministry is under the direction and responsibility of the Attorney General of the Republic. Its principal responsibilities include ensuring the observance of constitutional rights and guarantees in judicial process, and of treaties signed by the Republic, safeguarding due process and the right to trial in a timely manner; ordering and directing criminal investigations, a power exclusive to the Public Ministry, and carrying out the legal actions required to establish any liability incurred by government officials in the exercise of their functions.[26]

iii.         The Office of the Comptroller General of the Republic

43.       The Office of the Comptroller General of the Republic is under the direction of the Comptroller General. It is the agency responsible for controlling, monitoring, and auditing revenue, expenditure, public property and national assets, and any related operations.  It enjoys functional, administrative and organizational autonomy.[27]

44.       Its functions involve controlling, monitoring and auditing government revenue, expenditure, and assets and any related transactions, overseeing the national debt, instructing the Attorney General of the Republic to take pertinent legal action in the case of infractions and crimes against the public interest, exercising effective management control over the public policies of the public sector agencies, institutions, and legal entities subject to its oversight.[28]

e.         The Electoral Branch

45.       Electoral power is exercised by the National Electoral Council. The agencies that are constitutionally subordinate to the Council are the National Electoral Board, the Vital Statistics and Voter Registration Commission and the Commission on Political Participation and Financing.[29]

46.       The main functions of electoral branch are the regulation of electoral laws and the clarification of any doubts and loopholes these may contain; total or partial invalidation of elections; organization, administration and monitoring of all acts related to elected government office representing the people, and referendums.[30]  Furthermore, the agencies of the electoral branch are obliged to guarantee the equality, reliability, impartiality, transparency and efficiency of the electoral processes. Moreover, these agencies are governed by the principles of organizational transparency, functional and budgetary autonomy, non-partisanship regarding electoral organizations, impartiality and citizen participation.

47.       In relation to the composition of the Board of Directors of this agency, the failure to appoint the fifth and final member produced a vacancy that prevented the Board from performing its tasks normally for several months. In light of the delay by the National Assembly in proceeding to appoint electoral directors in accordance with its constitutional mandate, the Supreme Court of Justice established a deadline for completion of this exercise.

48.       In response to the failure of the legislature to reach an agreement, the judges of the Constitutional Division of the Supreme Court proceeded to appoint the members of the Board of Directors of the electoral entity and its subordinate agencies by a ruling dated August 25, 2003. The pertinent part of that ruling provides that:

6)         In accordance with the foregoing, the Court appoints as First Principal Director Oscar Battaglini González, whose alternates 1 and 2 shall be Germán Yépez and Orietta Caponi, respectively; as Second Principal Director Jorge Rodríguez Gómez, with Estefanía de Talavera and Esther Gauthier Torres as alternates 3 and 4, respectively; as Third Principal Director Francisco Carrasquero López, whose alternates 5 and 6 shall be Tibisay Lucena and Manuel Rachadell, respectively..

All these appointments are made in accordance with Article 13 of the Electoral Branch Act.

Sobella Mejías and Ezequiel Zamora are appointed as Fourth and Fifth Principal Directors, respectively; with their alternates being Carlos Aguilar and Carlos Castillo in the first instance; and Miriam Kornblith Sonnenschein and Carolina Jaimes in the second. 

Dr. Francisco Carrasquero López is named President of the National Electoral Council, and Ezequiel Zamora Vice-President.

Dr. William Pacheco is appointed Secretary of the National Electoral Council.

Dr. Andrés Brito is appointed Legal Counsel to the National Electoral Council.

7) Members of the subordinate agencies are appointed as follows: to the National Electoral Board, Jorge Rodríguez, Tibisay Lucena and Ezequiel Zamora; to the Vital Statistics and Voter Registration Commission, Sobella Mejías, Carlos Aguilar and Oscar Battaglini G; to the Commission on Political Participation and Financing, Francisco Carrasquero López, Carlos Castillo and Oscar Battaglini.

8) Carlos Delgado Chapellín, Teodoro Petkof Malek, Hernando Grisanti Aveledo and Guillermo García Ponce are appointed members of the Council for Political Participation.[31]

49.       The Commission took note of these appointments that permitted the resolution of the vacancy which had arisen.

3.         The new Constitution and Human Rights

a.         Rights directly established in the Constitution

50.       The new Constitution of the Bolivarian Republic of Venezuela establishes the principle of Constitutional Supremacy in Article 7, which states that the Constitution is the foundation of the legal system and the highest legal standard of the Republic. In addition, Article 19 of the Constitution provides that the State must guarantee to all persons, in accordance with the principle of progressivity and without discrimination, the enjoyment and exercise of inalienable, indivisible and interdependent human rights.  Title III also presents a detailed series of civil, political, economic, social and cultural rights, notably the right to life, personal freedom, due process, property, freedom of expression, freedom of assembly and association, equality, protection of children, indigenous rights, health, education, freedom of religion and conscience, environmental rights and the right to the work. The Constitution also establishes a series of guarantees, such as habeas corpus, constitutional protection [amparo], and habeas data.

51.       The entry into force of the new Constitution involved the introduction into the national legal system of a number of institutions that are of great value in terms of the defense and protection of human rights in a democratic society.  Very important rules were introduced to more soundly shape the Venezuelan State as a democratic state centered on the dignity of human beings. However, some of the changes are in fact a regression.  

52.       Among the most innovative aspects are the inclusion in the Constitution of treaties on human rights,[32] the obligation of the State to legally investigate and punish crimes against human rights,[33] the limitation of military justice, the imprescriptibility of crimes against human rights, the exclusion of serious human rights violations from acts of pardon and amnesty,[34] the right to address petitions or complaints to international agencies created for such purposes,[35] the obligation to indemnify victims of human rights violations,[36] the requirement that the Venezuelan State adopt, in accordance with the procedures established in the Constitution and laws, the measures necessary to comply with decisions handed down by the international organizations.[37]

53.       The new Constitution also establishes important special rules on human rights, such as Chapter VIII on the rights of the Indigenous Peoples, Chapter IX on Environmental Rights and Chapters VI and VII on Social, Economic and Cultural rights, the prohibition stated in Article 45 in relation to the forced disappearance of persons,[38] as well as the creation of new institutions dedicated to the protection of human rights such as the Human Rights Ombudsman and the Constitutional Division of the Supreme Court of Justice.

54.       In the normative sense, the Commission views as positive the above-mentioned constitutional reforms and considers them an important advance in the protection of the human rights in the country.

55.       However, it is the view of the Commission that the new constitutional text also includes some loss of ground in the area of human rights, which may pose problems for the rule of law. One such step backward is the required pre-trial of the merits prior to the investigation of crime involving senior officials of the Armed Forces, which could represent a weakening of the standards of due process regarding the guarantee of equal treatment.

56.       The creation of the Office of the Comptroller General of the National Armed Forces without proper clarification of its relationship with the Office of the Comptroller General of the Republic is a constitutional regulation that does not ensure the required independence and autonomy of such organizations and, in addition, may make the monitoring of the military by civilian authorities more difficult (Article 291). Also, the participation of the National Electoral Council in union elections is a clear violation of the right to union freedom.  One can also point to the establishment of the right to timely, truthful and impartial information (Article 58) which has been the object of criticism, including from this Commission, as will be discussed later on with reference to issues of freedom of expression.

57.       Article 203 of the Constitution includes the concept of enabling laws and provides for the delegation of legislative powers to the President of the Republic, without establishing clear and defined limits on the nature of this delegation.[39]  Such regulation tacitly allows for the creation of criminal law by rulings from the Executive and not the National Assembly, in contradiction with the requirements of the American Convention on Human Rights.  Such action represents an erosion of the guaranteed "requirement of law" [reserva legal] developed by the Inter-American system.[40]

58.       Furthermore, the new text of the Constitution does provide, in certain specific cases, checks and balances to control the exercise of public power that ensure balanced power sharing to guarantee the observance of human rights. For example, there is a notable lack of control and limits on the exercise of the legislative power by the Executive.

b.         The Incorporation of International Protection in Domestic Law

59.       An aspect of singular importance in the new Venezuelan Constitution is the attribution of constitutional ranking to international treaties on human rights.  The Constitution establishes in Article 23 that ”Treaties, pacts and conventions relating to human rights, signed and ratified by Venezuela have constitutional rank and prevail over domestic legislation, insofar as they contain provisions for the enjoyment and exercise of such rights that are more favorable than those established by this Constitution and the laws of the Republic, and shall be immediately and directly applied by courts and the organs of public power. ". The Commission considers it pertinent to indicate that this standard establishes the precedence of treaties, pacts and conventions on human rights and their immediate and direct application by the organs that exercise public power.

60.       According to Article 22 of the Constitution, "The articulation of the rights enshrined in this Constitution and in human rights instruments shall not be taken to negate ant rights inherent to individuals, which are expressly stated in such texts.  The absence of a law regulating these rights shall not impinge on their exercise". Article 25 of this instrument also indicates that any act taken in the exercise of public authority that violates or impinges on the rights guaranteed by the Constitution and the law is null and void, and that the government officials who order or carry out such acts shall incur criminal, civil and administrative liability.

61.       Article 31 of the Constitution states that “All persons have the right, under the terms established by human rights treaties, pacts and conventions ratified by the Republic, to submit petitions or complaints to international agencies created for such purposes, with the objective of requesting protection of their human rights.  The Venezuelan State is committed to adopting, in accordance with the procedures stipulated in this Constitution and the law, the measures necessary for enforcing decisions emanating from international agencies, as provided in this Article.”

4.         Venezuela and international treaties on human rights

a.         Regional System (OAS) Treaties

62.       The Venezuelan State has ratified the large majority of treaties on human rights and both additional protocols that have been signed within the framework of the OAS.  Venezuela is a party to: the American Convention on Human Rights; the Additional Protocol to the American Convention on Human Rights in Relation to Economic, Social and Cultural Rights, “Protocol of San Salvador”; the Protocol to the American Convention on Human Rights in Relation to the Abolition of Capital Punishment; the Inter-American Convention to Prevent and Punish Torture; the Inter-American Convention on the Forced Disappearance of Persons and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women "Convention of Belém do Pará.”  It is important to emphasize that Venezuela accepted the contentious jurisdiction of the Inter-American Court of Human Rights on June 24, 1998.[41]

63.       Although Venezuela signed the Inter-American Convention for the Elimination of all Forms of Discrimination against Persons with Disabilities on June 8, 1999, the State has to date not ratified this Convention. The Commission calls on the State of Venezuela to ratify this instrument at the earliest opportunity.

b.         Universal System (UN) Treaties

64.       Within the framework of the UN, the Venezuelan State is party, among other treaties related to human rights, to the International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights; Convention on the Elimination of All Forms of Discrimination Against Women; Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, and Convention on the Rights of the Child.

            B.         Political Background

65.       In this section the Commission will refer to a number of facts that had an impact on the political-institutional situation of Venezuela and will outline the present democratic institutional situation.

1.       Brief Historical Overview

66.       The development of contemporary democratic politics in Venezuela began in 1958 with the signing of a pact by the maximum leaders of some of the political parties that had contributed to the overthrow of the dictatorship of General Marcos Pérez Jiménez.

67.       This pact was a political agreement signed by three political parties, namely Democratic Action (AD), the Independent Electoral Political Committee (COPEI), and the Democratic Republican Union (URD), by which these parties took the decision to share power and support the government in office from any threat to democracy.[42] To safeguard the political truce and the unity among the democratic organizations, an "Inter-party Commission of Unity” was created to monitor compliance with this agreement. This Commission was charged with coordinating the coexistence of the different parties, to hear complaints against deviations by public figures or sectarian interests in the election campaigns and to approach any of the signatories, and on behalf of all, moderate and control actions which could jeopardize democratic coexistence.[43]  Nevertheless, the URD was excluded during the application of this pact, and the political history of Venezuela has since been characterized by bipartisan political dynamics that saw power change hands between AD and COPEI for more than two decades.

68.       This agreement, signed in Caracas on October 31, 1958, was widely known as the "Pacto de Punto Fijo", and its most significant political product was the Constitution of 1961. This Constitution, born out the fervor of establishing democracy, would remain in force until 1999 when the new legal and constitutional body was approved.

69.       This first fissures in this long period of democratic stability would begin to appear at the end of the 80s and the beginning of the 90s.  On February 16, 1989, then President Carlos Andrés Peréz, announced a series of economic adjustment measures to refinance the external debt, which were put in practice from February 27. These measures caused widespread social discontent that was expressed in a series of disturbances in the city of Guarenas, in the State of Miranda. These disturbances then spread to other metropolitan areas such as Caricuao, La Guaira, Maracay, Valencia, Barquisimeto, Guayana, Mérida and Maracaibo. The disturbances consisted mainly the burning of urban transport vehicles and the looting and destruction of businesses, acts which inflicted substantial damage to public and private property.

70.       The Executive assigned responsibility for the control of the situation to the military forces and on February 28, 1989 issued decree No.49 declaring the suspension of constitutional guarantees.  During the 23 days that this suspension of guarantees lasted and, in particular from March 1, 1989, the Armed Forces were in control of the territory and the population of Venezuela. During this exceptional period, the security organs of the State, in conjunction with the Metropolitan Police, deployed a number of operations to suppress acts of violence. The results of the events of February and March of 1989, according to official figures, were 276 fatalities, numerous injuries, several disappearances and substantial material losses. This massive protest and its violent repression are known as the "Caracazo".[44]

71.       Also of note is the case of the town of El Amparo which occurred in October 1988, when 16 resident fishermen set out on a fishing expedition, heading towards the La Colorada channel through the Araucan river located in the Páez District of the State of Apure. At approximately noon, they stopped and some fishermen disembarked, when military and police personnel from the José Antonio Páez Special Commando Unit, who at that time were engaged in a military operation called “Anguila III”, killed 14 of the 16 fishermen. This case was submitted to the Inter-American Court, which, in a ruling dated January 18, 1995, declared the end of deliberations on the facts of the case and the international liability of the Venezuelan State, given the State’s recognition of its responsibility for the acts committed.[45]

72.       Years later two attempts at a coup d’état took place.  The first of them took place on February 4, 1992.  In the early morning on this day, the military group MBR 200--Movimiento Bolivariano Revolucionario (Bolivarian Revolutionary Movement), headed by Commanders Hugo Chávez Frías, Francisco Javier Arias Cárdenas, Jesús Urdaneta and Noé Acosta, unsuccessfully attempted a coup d’état against President Carlos Andrés Pérez.  By mid-morning, the Government had managed to bring the situation under control.

73.       Some months later, on November 27, another unsuccessful coup attempt took place, and officials of the Venezuelan Army were forced to flee to Peru.  The tragic events at the Catia Judicial Detention and Internment Center occurred within the context of the second military coup attempt.  According to the information received, shortly after hearing by radio of the attempted coup the prison guards opened the jail doors announcing that the prisoners were free. The event caused much chaos and confusion in the detention center. In order to restore order and to handle the situation the National Guard and the Metropolitan Police intervened, firing shots and throwing tear gas bombs at the inmates. Some 63 inmates died in the incident and their deaths have not yet been explained by the national authorities nor have criminal and administrative responsibility for these acts been established.

74.       Notwithstanding the seriousness of the violence and human rights violations previously described, the democratic experience in Venezuela continued uninterrupted until the events of April 12, 2002, when another coup d’état was attempted.

2.         Political Context: Progressive Polarization

75.       The political atmosphere in Venezuela was characterized by a notable trend towards political polarization that began in the early months of 2002.  This has led to a current atmosphere of tension and polarization of political positions in Venezuela, and is also manifested in the politicization of the different state institutions and sectors of the society.

76.       In the interest of providing a contextual framework for the political situation, certain circumstances must be considered.  On November 7, 2002, the National Assembly, by means of an enabling act, granted special powers to President Chávez to legislate on economic and social matters as well as public administration.  Opposition to the Government began to establish itself at the end of 2001 in response to the promulgation, by means of presidential decree under the enabling act, of 49 economic decrees with measures such as agrarian reform and the tightening of official controls on the oil industry, that were not well received by some sectors.[46]  The disapproval of these sectors was expressed socially in the form of a national protest held on December 10, 2001.

77.       There was also intense mobilization around multiple social and political demands.  More specifically, labor disputes that emerged in three key sectors—health, education and the oil industry—played a decisive role in later events.

78.       The labor dispute in the oil sector was the most notorious given the importance of that sector in Venezuela and its subsequent repercussions. The appointment by President Hugo Chávez of a new president of the state oil company, Petróleos de Venezuela (PDVSA) and a new board of directors triggered a series of protests by employees of the company, who expressed their disagreement by continually holding demonstrations outside PDVSA’s administrative offices.

79.       These protest actions increased in the month of March, initiating intermittent shut-downs of the different refineries and oil plants.[47]  On April 9, during the fifth week of the dispute, the Confederation of Workers of Venezuela and Fedecámaras called for a 24-hour strike in solidarity with the oil sector protest, an objective that was tied to demands for the President to resign.[48]  On the following day the strike was extended for a further 24 hours and on April 11, when the situation appeared to be returning to normalcy as businesses began to open to their doors to the public and some services, such as transportation and banking, began to operate, an indefinite strike was declared.[49] 

80.       On April 11, a mass march called by an umbrella organization of the opposition forces, which would later come to be known as the Democratic Coordination, traveled from the Parque del Este towards Chuao. The demonstrators soon proceeded to Miraflores to demand the President’s resignation.[50]  There they encountered pro-government groups that had been camped near the Palace for the three consecutive days.

81.       The result of that encounter was a confrontation that occurred in the city center and involved clashes of the Metropolitan Police, the National Guard, and demonstrators in favor of and in opposition to the Government.[51] The Commission has graphic evidence and the eyewitnesses reports indicating the existence of suspected snipers located on the terraces of buildings adjacent to the avenues where the events took place. It should be noted that some of the buildings indicated belong to the state agencies.[52] There is also graphic evidence of the participation of armed individuals shooting indiscriminately at demonstrators, especially from the Llaguno bridge.