317.        The Commission has been informed that violence within the Venezuelan prisons has worsened due to the lack of qualified guards or personnel[317], and that illegal activities have developed such as trafficking in drugs, arms, and liquor – allegedly with the knowledge and acquiescence of the prison staff – overcrowding and inadequate infrastructure.  In addition, it has been reported that most of the prison establishments do not have the number of guards needed to maintain order and internal discipline.[318]

318.        The Commission has expressed its concern over such situations within Venezuelan prisons. In 2004, the Commission sent the State a request for information concerning the violent events of September 21, 2004, at the Cárcel Nacional de Uribana, where internal violence resulted in six persons dead, three of whom were decapitated, and 56 wounded with a variety of injuries caused by gunshot wounds, puncturing implements of sizes, sticks, pieces of iron, and even stones.

319.        During its 123rd regular session, the Commission learned of another highly worrisome case that occurred in June 2005 at the Centro de Reclusión V “Monseñor Juan Jose Bernal” of the National Children’s Institute (Instituto Nacional del Menor) located in San Félix, a city of Guayana, in which five 18- and 19-year-old youths burned to death. In addition, the Commission was informed that from November 7 to 13, 2005, 12 prisoners died and 17 were wounded in different prisons of Venezuela.[319]  According to the information, the victims had gunshot wounds, and lesions caused by bladed weapons or shrapnel from grenades, and one of the victims were beheaded.

320.        The IACHR has stated that inhumane conditions and the lack of suitable and trained personnel, along with the lack of supervision, lead to acts of internal violence that it considers extremely serious. The apparently structural problems that have a negative impact on the prison system in Venezuela, together with the especially precarious conditions in which persons deprived of liberty are held, as well as the lack of effective controls to prevent the entry of weapons to the centers of detention, are determinant factors contributing to the violent events reported in 2005.

321.        In the understanding that the State is the guarantor of the rights of those under its custody, the Commission urges the Venezuelan State to take the necessary measures to guarantee the life and personal integrity of persons deprived of liberty in the prison system, as well as in all other detention centers in the country. In particular, the State should ensure control over the use of force and discipline in the centers of detention. In addition, it should ensure that such incidents of violence and loss of human life not recur by carrying out the respective administrative and judicial investigations.  The IACHR considers it of crucial importance to review prison policy in Venezuela, to which end the IACHR offers the Venezuelan State its collaboration, within the sphere of its competence.

322.        In its February 6, 2006 response, the State noted among others aspects that the Ombudsman Office has developed activities on behalf of the defense and promotion of the rights of the persons deprived of liberty.  Indicated that the Ombudsman Office has carried out 550 inspections in the prison establishments offering aid and orientation to the penal population.  Additionally, the State indicated that in 2004, attending to the crisis of system prison, the National Executive dictated the Executive Decree 3265 creating the Presidential Commission to attend the Prison Emergency in order to attend solutions in the short and medium time.  The Stated said that the General Direction of Human Rights is a part of the Presidential Commission as an observer.  Also, the State indicated that after taking into account a request of some prisoners of the Andean Region, article 493 was suspended from the Organic Code of Penal Procedure, due to its unconstitutionality.  Finally, the State indicated that an educational project is being carried out with the penal population. 

IV.              CIVIL SOCIETY

323.        In its February 6, 2006 response, the Venezuelan State indicated that the Constitution of 1999 recognizes a multiethnic and multicultural nation in a participatory democracy.  The State referred to its efforts to guarantee the fair participation of all the sectors of the society.  The State indicated that groups traditionally excluded such as the indigenous peoples, are being guaranteed the possibility to establish their own legitimate authorities with their own social organization and politics according to the article 3.8 of the Organic Law of Indigenous Peoples and Communities, as well as the right to participation and political highlight […]”.

A.      Risk of segregating a sector of Venezuelan society because of its political dissent

324.        In 2005, the Commission received a mounting number of complaints and information indicating a worrisome trend in discriminatory actions against persons who make public their dissent from government policies and those who called for the removal of President Hugo Chávez Frías, in the referendum on revoking the presidential mandate that was held August 15, 2004.  The Commission considers that the discriminatory actions based on one’s political opinion have a serious and grave detrimental impact on the observation and enjoyment of fundamental rights enshrined in the American Convention.  A pronouncement by the Commission on Human Rights of the United Nations on this question recognizes that “…tolerance involves a positive acceptance of diversity and that pluralism encompasses the willingness to accord equal respect to the civil, political, economic, social and cultural rights of all individuals … tolerance and pluralism strengthen democracy, facilitate the full enjoyment of all human rights and thereby constitute a sound foundation for civil society, social harmony and peace[.]”[320]

325.        In this regard, the Commission states its concern over the existence of a tendency to intimidate, harass, and stigmatize persons or organizations who speak out against government policies or officials. Even though over the last year the extent of social conflict characterized by violence and confrontation in public demonstrations has diminished, the Commission is concerned about the weakening of democratic checks and balances on the exercise of governmental authority, especially basic guarantees for the exercise of human rights advocacy, freedom of expression, and freedom to engage in opposition politics. The Commission was also alerted to the existence of a growing number of discriminatory acts by State entities and private sectors in giving employment and public services contracts for ideological or other related reasons. According to this information, those who have political disagreements with the current government would end up unemployed or negatively impacted by these discriminatory acts because of their views.

326.        The complaints received include allegations that one of the tools used in this new pattern of discrimination is the so-called “Tascón list,” which contains the signatures of those persons who in 2004 submitted the request to call a referendum to revoke the mandate of President Hugo Chávez Frías.  According to publicly-known information, the total list of the names of those persons was made public on the web site of the Movimiento Quinta República (MVR); beginning with Luís Tascón, this led to the dismissal of a large number of public employees, in various parts of the country, without recognition of their labor benefits.

327.        The Commission learned that even though on April 15, 2005, the President of the Republic made an appeal to the regional authorities and those who work with them to archive and bury the so-called Tascón list[321], complaints persist to this day that “the list” is still being used to limit the signers’ access to basic services and social welfare programs, and that they continue being dismissed or not given employment in private firms as well as state enterprises.[322]  Following are a few examples:

• On April 15, 2005, the Center for Human Rights at the Universidad Católica Andrés Bello (CDH UCAB) and Provea filed an appeal against the decision of the 21st Oversight Court of the Criminal Circuit for the Caracas Metropolitan Area, which decided to consider concluded the investigation into the President and other officials of the CNE [Consejo Nacional Electoral] for applying pressure tactics to get citizens Rocío San Miguel, Magally Chang, and Thaís Peña to withdraw their signatures from the call for the referendum on revocation of the presidential mandate. Rocío San Miguel, Magally Chang, and Thaís Peña went to court to ratify their complaint alleging they had been dismissed in 2004 for political reasons, and with respect to which they have been pursuing various judicial remedies. The three of them worked in the CNF as legal counsel, public relations executive, and personnel assistant, respectively. On May 1, 2004, they were dismissed, without any reprimand in their files or any reorganization of the entity giving rise to a reduction in force. It is indicated that when they were given the notices, the Executive Secretary of the CNF informed them orally and individually that the dismissal was for having signed on against the President of the Republic.

• The president of the public-sector workers’ union Federación Unitaria Nacional de Empleados Públicos (FEDEUNEP) stated that he has documented 780 cases of persons negatively affected by political discrimination, and the sanctions meted out by those public employees who applied this measure against those who signed petitions for the referendum to be held. Of this total, 200 were dismissed, 400 were subjected to pressure tactics, and 180 transferred. According to the records of the FEDEUNEP, at the Ministry of Interior and Justice (MIJ) 20 persons were dismissed; in the Deposit Guarantee and Bank Protection Fund (FOGADE), 42, although it is estimated that the actual figure is 120; in the water works (Operadora de Acueductos) of the Capital District and the states of Vargas and Miranda (Hidrocapital), 12; in the city government of Sucre, seven; in the National Elections Council (CNE), five; in the Ministry of Higher Education (MES), two; in the Ministry of Production and Commerce (MPC), two; in the National Parks Institute (INPARQUES); in the Urban Transportation Fund (FONTUR), four; in the Caracas Metro, 11; in the Corporation for Recovery and Development of the state of Vargas (CORPOVARGAS), 3; in Venezolana de Televisión (VTV), one; and also one each in the office of the Governor of Guárico, the National Sports Institute (IND), the National Tourism Institute (INATUR), the Office of the Controller of the state of Mérida, the National Council on Culture (CONAC), the Instituto Universitario del Este, the Commission for the Administration of Foreign Exchange (CADIVI),  the Ministry of Labor (MINTRA), the Ministry of Finance (MF), the Ministry of Agriculture and Lands (MAT), the Ministry of Infrastructure (MINFRA), the Ministry of Health and Social Development (MSDS), the Ministry of Science and Technology (MCT), the Hospital Universitario; the municipal government of Libertador, and the Metropolitan Education Zone.

• Manuel Cova, Secretary General of the Confederación de Trabajadores de Venezuela (CTV), alleged that ”political-labor persecution continues in the public sector through the list of those who signed the request for the presidential referendum, disseminated by deputy Luis Tascón.” Cova said that “in recent days 421 workers from city hall and the governor’s office in Miranda were removed from their positions by dismissals and forced retirement.”

•  Gloria Pacheco, representative of the first slate in the upcoming elections of the Venezuelan Dentistry Association (COV: Colegio de Odontólogos de Venezuela), alleged that Venezuelan dentists who participate in the Misión Barrio Adentro (MBA) program are being threatened with dismissal for political reasons: “the regional coordinating body of dentists who work in the Barrio Adentro program in Barinas, Olida Santiago, brought together her subordinates to tell them that in the upcoming elections for the Board of Directors of the COV they had to place their ballots open in the ballot boxes, so they could be identified by the slate they were voting for, and anyone who did not do so would be fired.” Pacheco indicated that "this, clearly, is a flagrant violation of the Constitution and the Law on Voting and Political Participation, which provides that voting is universal and by secret ballot."

328.        One of these basic pillars of democratic government is respect for the fundamental rights of individuals under the principle of equality and non-discrimination. The consolidation of democracies requires stepped-up participation of all social sectors in the political, social, and cultural life of each nation. In this regard, Article 1 of the American Convention establishes the need for the States party to “undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.” 

329.        Given that the American Convention does not define discrimination, one can take as a basis the definitions contained in the International Convention on the Elimination of All Forms of Racial Discrimination and in the Convention on the Elimination of All Forms of Discrimination Against Women to argue that discrimination is any distinction, exclusion, restriction, or preference based on certain motives, such as race, color, sex, language, religion, political or other opinion, national or social origin, economic position, birth or any other social condition, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms of all persons.[323]  Accordingly, the Commission considers that any treatment that may be considered discriminatory with respect to the rights enshrined in the Convention is, per se, incompatible with it.[324]

330.        The Commission is of the view that the lack of equitable participation impedes the broad development of democratic and pluralist societies, exacerbating intolerance and discrimination.  The inclusion of all sectors of society in the processes of communication, decision-making, and development is fundamental to ensuring that their needs, opinions, and interests are considered in designing policies and in decision-making.[325]

331.        The Commission notes that the discriminatory acts of the State against persons who have an ideology or political opinion different from whatever administration is in office may take on more subtle indirect forms which at times may be more effective for deterring criticism or for exercising coercion that leads to a change of position, at least in public, resulting in greater apparent alignment with the positions of the governing party. The Commission finds that dismissing employees and obstructing access to social benefits, among other measures, to punish those persons who express their voice of dissent from the administration are violations of human rights and should be subject to generalized censure, and should be investigated.

332.        In this context, and with a view to encouraging analysis, the Commission takes this opportunity to refer to some decisions of the United Nations Human Rights Committee[326] and the European Court of Human Rights that exemplify the case-law in international law, and which are relevant for discouraging a possible deepening of a culture of discrimination and intolerance for political pluralism in Venezuela.

333.        In Yong Joo Kang vs. Republic of Korea[327], the Human Rights Committee of the UN held that the application of “an ideology conversion system” to a prisoner convicted of espionage for distributing publicly available information violated his right to freedom of expression. The petitioner, along with other acquaintances of his, was an opponent of the military regime.  In 1984, he distributed pamphlets in which he criticized the regime and the use of the security forces to harass him and others.  In January, March, and May 1985, he distributed dissident publications that addressed political, economic, social, and historical matters. On July 1, 1985, the petitioner was arrested without court order by the Agency for National Security Planning (ANSP) and tried on charges of violating the National Security Law, and sentenced to life in prison, after the Criminal District Court of Seoul related on his confessions.

334.        In his communication, the petitioner argued that being coerced to change his political opinion and the withholding of benefits (such as the possibility of release on parole) if he did not “convert” were tantamount to a violation of his right to freedom of conscience.  The Committee concluded that the “ideology conversion system” to which the author had been subjected while he served his sentence was coercive and applied in a discriminatory fashion for the purpose of changing the political opinion of a prisoner, offering him incentives in the way of special treatment in prison and a greater possibility of parole, constituting a violation of Article 19(1) of the International Covenant on Civil and Political Rights. 

335.        In a case decided by the European Court of Human Rights, Vogt vs. Germany[328] (1995), the European Court held that the state’s action of placing the petitioner at a disadvantage, mindful of her political convictions as an active member of the German Communist Party since 1972, violated Articles 10(2) and 11 of the European Convention.  The case had to do with the dismissal of a language teacher from a public high school for having participated in public events as a member of her party and having run as a candidate in regional parliamentary elections in 1982.  The dismissal went forward even though the petitioner had a satisfactory record in her performance as a professional and even though those activities were held outside of the school setting. In 1982 the Regional Council of Weser-Ems brought disciplinary proceedings against the petitioner for breach of the duty of every public servant to serve and swear loyalty to the Constitution, as she was involved in political activities of the German Communist Party since 1980. For her part, the petitioner argued that her political activity as a member of the  Communist Party was lawful, and that every citizen has the right to participate in political activities. 

336.        In view of the international case-law on the matter, even the possibility that discriminatory actions might be taking place in Venezuela because of the political or ideological expression of persons is highly alarming. The Commission maintains that every person has the right to legitimately exercise his or her freedom of expression, assembly, association, and conscience, and that these constitute a form of pluralism that is necessary to ensure the rights recognized in the various international human rights instruments, and to strengthen democratic institutions. The obstruction or intimidation of persons seeking to exercise these liberties strips individuals and the various sectors of society of instruments for defending their interests, protesting, criticizing, making proposals, and exercising oversight and active citizenship in their pursuit of popular sovereignty within the democratic framework.

B.       Human rights defenders[329]

337.        In 2005 harassment and intimidation of human rights defenders continued. The Commission was informed that judicial proceedings were instituted against human rights defenders, whose purpose is allegedly to silence their reports.  In addition, high-level officials continued to question the legitimacy of their work. The IACHR expresses its grave concern over the impact these statements could have on the security of human rights defenders.

          1.       Threats and violence against human rights defenders

338.        The Commission has learned that a climate of hostility and threats to the lives and physical integrity of human rights defenders continues to exist in Venezuela.  In this respect, the Commission was informed that on January 23, 2005, in the city of Caracas, eight alleged officers of the Metropolitan Police entered and searched, without court order, the residence of Luís Rafael Ugas, president of the Fundación para las Garantías, Prevención y Defensa de los Derechos Humanos (FUNGAPDEHCA). According to the information provided to the Commission, the police agents arbitrarily and illegally detained Mr. Ugas’s brother, when they found that Mr. Ugas was not home.  Ten days later, Rafael Ugas was intercepted in the street by four unidentified individuals, who placed him in a vehicle.  There he was beaten and cigarette burns were inflicted on his back several times.  Before being released, death threats were made to Mr. Ugas.[330]

          2.       Discrediting of human rights work by state authorities

339.        Since 2001 the Commission has received repeated reports of state acts aimed at de-legitimizing and criminalizing the actions of Venezuelan and international human rights organizations working in Venezuela.  In 2005, the IACHR has observed an increase in such reports due to the statements made by representatives of the Legislative branch, the Executive branch, the Public Ministry, and the even Judicial branch. High-level members of these government bodies have publicly accused several human rights organizations and their members of being part of a pro-coup strategy, or of having improper ties with foreign countries supposedly plotting to destabilize the Government.[331]

340.        The Commission is concerned by the statements made by public authorities aimed at discrediting and stigmatizing human rights defenders, especially when such statements are made by members of the Judiciary in charge of judicial investigations or proceedings against defenders. In addition, the Commission considers it lamentable that high-level state officials have made statements aimed at attacking the professionalism of persons who have appeared before the organs of protection of the inter-American system. In this respect, the Commission has learned of the statements by Attorney General Isaías Rodríguez, discrediting the professional activity of attorney Carlos Ayala Corao in his participation before the Inter-American Court of Human Rights[332]; and the statements by Interior and Justice Minister Jesse Chacón,  in which he discredits the work of human rights defender Humberto Prado just days after he appeared in a hearing at the headquarters of the IACHR concerning the prison situation in Venezuela.[333]

341.        As reported to the Commission, these statements seek to get human rights organizations to desist from making use of the international protection mechanisms, and help maintain and intensify the risk that human rights defenders face to their personal integrity. Official speeches and pronouncements that stigmatize, de-legitimize, and criminalize the work of human rights defenders have been followed by statements and opinion articles by persons close to the government that suggest that human rights defenders are participating in criminal acts aimed at overthrowing the established government.  These declarations seek to create a mistaken perception in society regarding the work of human rights defenders.

342.        The Commission was informed of this situation in a communiqué dated June 29, 2005, in which the Ministry of Foreign Affairs suggested that the organizations providing counsel to the victims in one of the cases before the Inter-American Court were seeking to use human rights for economic and political gain.  To this communiqué followed various editorial opinions in the media known as aligned with the government where the representatives of the victims which participated in the Court’ hearing were single out as conspirator against the regime[334].

343.        The Commission recommends that the Government foster a culture of human rights in which the role of human rights defenders in guaranteeing democracy and the rule of law in society is recognized. Public officials should refrain from making statements that stigmatize human rights defenders or that suggest that human rights organizations operate improperly or illegally, merely because of their work promoting and protecting human rights.

          3.       Restrictions on access to international financing

344.        The Commission has been informed that the State has imposed restrictions on the operation of human rights organizations by making it impossible for them to gain access to resources provided through international cooperation.[335] This prohibition, in a context in which financing for civil society organizations in Latin America and the Caribbean generally comes from foreign cooperation, in fact makes it impossible for organizations working in the area of human rights to operate. In previous reports, the Commission has referred to judicial measures that unlawfully restrict the work of organizations by preventing them from participating in public matters, based on their having received funds from international cooperation.[336]

345.        In 2005, the Commission received more reports indicating that criminal proceedings were being instituted against several human rights organizations in retaliation for having raised and executed funds from foreign cooperation.[337] Those charges, according to available information, have been made in keeping with provisions of the Criminal Code, whose vague and imprecise content violates the principle of legality and makes it possible to consider any conduct criminal.

346.        Specifically, human rights defenders have noted that Article 132 of the Criminal Code is being used to criminalize organizations’ foreign financing.[338]  Through this provision, several members of human rights organizations are currently being investigated for the crime of requesting foreign intervention in Venezuela’s domestic political affairs, because they raised money for the legitimate exercise of constitutionally and internationally recognized rights exercising and societal efforts to keep tabs on the State, and fostering political participation. 

347.        The Commission recalls that the punitive power of the State and its justice organs should not be used to harass those who are engaged in legitimate activities. States have the duty to investigate those who violate the law in their territory, but they also have the duty to take all measures necessary to prevent state investigations from being used to submit to unfair or unfounded trials persons who legitimately call for respect for and protection of human rights.

4.       Instituting criminal actions to the detriment of the work of human rights defenders

348.        The Commission has also received reports of criminal proceedings being instituted against human rights defenders on charges of defamation, libel, and conspiracy.  According to what was reported to the Commission, such proceedings are brought for the purpose of hindering the work of human rights defenders.  The Commission received information that indicates that the prosecutors from the Public Ministry in charge of those investigations have committed procedural irregularities that limit the defense of the accused, including restrictions on access to the terms of the indictments and the discretional blocking of the production of evidence. In particular, it is noted that in the proceedings instituted against human rights defenders, the actions of the prosecutorial authorities are always aimed at shifting the burden of proof to the accused, contrary to the principle of the presumption of innocence.[339]

349.        The Commission has also learned of judicial proceedings and steps supposedly aimed at carrying out international measures of protection, by which the burden of proof is shifted, and they end up being used against the beneficiaries of such measures.  Threats and acts of harassment such as phone threats and being followed are very difficult to prove, which could lead to the authorities initiating criminal inquiries against the defenders on charges of simulation of a criminal act. The Commission was informed that these measures, in addition to seeking to subordinate international rulings to domestic law, are aimed at getting human rights defenders to assume the role of being the ones to lodge the complaints, which, given Venezuela’s system of criminal procedure, shifts the burden of proof to them, requiring them to prove that the facts they allege are true.[340]

350.        For the IACHR, the pronouncement by the Twenty-ninth Court illustrates the that it is ill-advised to submit the decisions of international human rights organs to the review and decision of domestic judicial organs, and therefore it urges that this judicial interpretation be recognized as that which is most compatible with international law and the American Convention, as indicated in the introductory section of this chapter.

351.        The Commission reiterates that the failure to implement effectively and in good faith the measures of protection granted by the organs of the inter-American system increases the risk to these persons, which in turn weakens democracy and the rule of law. In addition, the Commission is concerned that cases of violence and harassment targeting human rights defenders, even though criminal inquiries have been instituted, have remained in total impunity to date.

C.      Freedom of expression[341]

352.        The exercise of the freedom of expression in Venezuela continues to be a matter of concern for the IACHR. The Commission has found that the communications media take a critical view of the government’s actions. Nonetheless, the Commission notes that as it suggested in its Report on the Situation of Human Rights in Venezuela of 2003, a critical position by private media doesn’t justify restrictions on the freedom of expression contrary to international and inter-American provisions.

353.        In the course of 2005, the IACHR received reports through the Office of the Special Rapporteur for Freedom of Expression (“the Office of the Special Rapporteur”) regarding various situations that have a detrimental impact on the normal exercise of this fundamental right. The information received describes the enactment of laws which, in practice, may have a negative impact on the freedom of expression; it has also received information on an increase in the number of criminal proceedings being instituted against journalists, through the use of these laws; reports were received on actions taken by state agencies in charge of collecting taxes that have had an impact on the exercise of the freedom of press; information was received on discriminatory actions in contracts for official advertising; the IACHR also received worrisome reports of attacks, harassment, detentions, and intimidation of journalists by members of the military.  The following paragraphs outline some of the more emblematic reports that the IACHR received in this regard. The information set forth in this chapter may be supplemented by the analysis of the situation on freedom of expression in Venezuela undertaken by the Rapporteur for Freedom of Expression at the request of the IACHR in Volume III of the this year report.[342] 

354.        The Commission and the Office of the Special Rapporteur for Freedom of Expression note with concern the enactment of the Law on Social Responsibility in Radio and Television, in late 2004, without many changes compared to the bill that had been criticized in the IACHR’s Report on the Situation of Human Rights in Venezuela.[343]  Both reiterate the concerns expressed in that report and note that they have been asked, in a hearing, to perform an extensive analysis of the law to examine its compatibility with the American Convention.[344]

355.        It is worrisome that the current Law on Social Responsibility in Radio and Television of Venezuela creates restrictions on the content of audiovisual programming that may be excessive, such as the prohibition in Article 7 on disseminating a large quantity of information related to health, violence, and sex.[345]  As the Commission has noted previously, these restrictions, defined in vague terms and combined with highly punitive sanctions, create ideal conditions for self-censorship of the media.[346]  Meanwhile, the law favors state programming, giving 70 minutes weekly to information requested exclusively by the Executive branch[347] and giving control to a commission put together by the State to promote “independent national programming and production.”[348]  The law also requires that the information broadcast be true, impartial, and timely, which opens the door to regulation contrary to the case-law of the Inter-American Court of Human Rights.[349]  

356.        The Commission also reiterates its concern over the establishment of the Social Responsibility Board and Council (Directorio and Consejo de Responsabilidad Social), both of which have broad powers to issue sanctions, without the limits that any organization of this type needs.[350]  It is worrisome, among other things, that the Board can meet with the presence of only those members who represent the State, and that they can adopt decisions by simple majority.[351]  It is also of concern that the Council, whose composition in theory is more representative of Venezuelan society, is consulted only when deemed advisable by the National Telecommunications Commission (CONATEL) and the Board.[352]  The Commission and the Office of the Special Rapporteur are of the view that the operation of these agencies, as provided for in the Law, facilitates the practice of prior and subsequent censorship by the State.

357.        The Commission and the Office of the Special Rapporteur also express their concern over the March 2005 amendment to the Criminal Code.  The Office of the Special Rapporteur believes that this amendment strengthens and expands a legal framework that criminalizes forms of expression protected by the American Convention, by both journalists and private citizens.  The Office of the Special Rapporteur observes that the amendment expands the reach of desacato laws in terms of the number of public officials protected, and in terms of content.  It also observes that the new provisions increase the penalties for desacato and other forms of defamation, libel, instigation, outrage, and slander, among other criminal offenses. In also criminalizes new types of protest against the government, in both the public and private spheres, and increases the penalties for violating these laws.

358.        According to Article 13(3) of the American Convention:

The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.

359.        In addition, Principle 10 of the Declaration of Principles on Freedom of Expression states: “Privacy laws should not inhibit or restrict investigation and dissemination of information of public interest.” It also prohibits laws that impose criminal sanctions on offenses against reputation, while Principle 11 declares that desacato laws are incompatible with the freedom of expression. The Commission analyzed the compatibility of desacato laws with the American Convention on Human Rights in a report issued in 1995.  The IACHR concluded that such laws were not compatible with the Convention. 

360.        Accordingly, the IACHR and the Office of the Special Rapporteur consider that the legislative reforms mentioned violate the exercise of the freedom of expression in Venezuela, creating a less-than-favorable environment for its exercise, and establishing conditions in which self-censorship may become a general practice.

361.        In 2005, the Commission received information about criminal and administrative proceedings that have been brought or that continue against journalists, media workers, and media outlets for violating desacato laws or for alleged crimes of denigration (vilipendio), defamation, libel, advocacy of hatred, instigation of rebellion, and treason.  In addition, the IACHR received information on the abuse of due process in some of these criminal proceedings.  The Commission recalls that in its Report on the Situation of Human Rights in Venezuela, published in 2003, it was of the opinion that the enforcement of laws such as those on vilipendio and desacato “would restrict full enjoyment of freedom of expression by criminalizing offensive statements made about public officials.”[353]  In addition, Principle 10 of the Declaration of Principles on Freedom of Expression notes as follows:

The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news. 

362.        Since the promulgation of the new Criminal Code, the Venezuelan Public Ministry has indicted journalists and media outlets for violating the new laws.  It is worrisome for the IACHR that, according to the information provided by various agencies, in the course of 2005 the number of trials against journalists more than doubled compared to similar actions initiated in 2002.[354] 

363.        The cases on which the IACHR received information include the trial that culminated in the conviction and sentencing of defense attorney Tulio Álvarez to two years and three months in prison for defamation in the course of his professional practice. Attorney Álvarez had represented workers of the National Assembly in a civil action against Deputy William Lara, of the government party. He had also been a major spokesperson of the Coordinadora Democrática, the organization opposing the government during the revocation referendum. Information was also received on the case of Patricia Poleo, who was sued for defamation by the Minister of Interior while investigating the assassination of prosecutor Danilo Anderson.  In this case, which began in the tensest days of the Anderson case in November 2004, a ruling was handed down on March 12, 2005; Poleo was convicted and sentenced to six months in prison. Finally, Marianella Salazar faced slander charges for allegations not attributable to her column. Poleo and Salazar, along with journalists Napoleón Bravo and Ibeyise Pacheco, have been indicted by the Public Ministry. [355]

364.        As regards direct censorship, in October 2005 during a hearing before the IACHR, the Commission received reports that the opinion program Dossier had been censored on the state-owned television channel, Venezolana de Televisión.  According to the information received, the program was cancelled one day after the host said he would use his space to denounce corruption cases.  According to the information provided, so long as this case was being discussed on another program on the same channel, the President of the Republic called to warn the hosts that they could not discuss the matter. 

365.        In addition, the Commission received reports that in the state of Bolívar, public employees prohibited journalists from accessing public facilities such as a hospital, a court, and a baseball stadium. 

366.        The information received on self-censorship in the media is extremely worrisome.  According to the information provided by non-governmental organizations to the IACHR during the hearing held October 21, 2005, the number of information programs on private radio stations in Venezuela has been cut in half. In addition, a large number of opinion programs directed by journalists critical of the government’s performance have been taken off the air this year.  In the case of one private radio station, four opinion programs directed by well-known journalists were taken off the air.[356]

367.        During 2005, the Commission continued to receive reports of arbitrary actions by the National Telecommunications Commission (CONATEL) and other administrative agencies in Venezuela.  In addition, through a public hearing on freedom of expression held on October 21, 2005, the Commission received news of a significant mechanism for bringing indirect pressure to bear on the media, namely the discriminatory use of official advertising. 

368.        The Commission received news that in May, CONATEL officials, accompanied by military forces, without notice, entered the offices of Radio Alternativa of Caracas 94.9, a community radio station, and confiscated its transmitter. In the incident, not one of the directors of the radio station was present; the CONATEL officials did not have a court order for the action.

369.        Just as worrisome as the arbitrary regulation is the discriminatory granting of funds and publicity to pro-government media.  A study by the Instituto Prensa y Sociedad revealed in October 2005 that at least one major opposition daily (El Nacional) has suffered losses in advertising revenues because of its editorial positions. At the same time, it was revealed that one daily newspaper that has supported the government in its editorial positions has benefited from government advertising contracts.[357]

370.        Finally, in 2005, the IACHR continued receiving information on the scant progress, if any, in addressing complaints of attacks against and harassment of journalists and media workers in Venezuela.