IACHR ANNUAL REPORT 2008

CHAPTER IV - HUMAN RIGHTS DEVELOPMENTS IN THE REGION

VENEZUELA (Continuation)

VI.                FREEDOM OF CONSCIENCE AND RELIGION

362.          Article 12 of the American Convention protects the right to freedom of conscience and religion, which is the freedom that every person has to maintain his religion or beliefs and to profess and disseminate them, both in public and in private.  Accordingly, no one may be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.  The freedom to profess one’s religion or beliefs is “subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.” Article 16, for its part, provides that “Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes.”

363.          Article 59 of the Venezuelan Constitution protects the right to freedom of worship and religion.  Nevertheless, in 2008 the Commission learned of situations that could impair the free and full exercise of religious freedom. 

364.          As reported, the Commission received reports of anti-Semitic statements and incidents of various broadcasting media.  There were also cases of graffiti appearing on the walls of institutions and residences run by the Jewish faith with messages like “child killers,” “out with the Jews,” “Jewish dogs,” and swastikas.[426] The Commission was also told that on December 2, 2007, police officers allegedly raided the headquarters of the Hebraica Social, Cultural and Recreational Center [the “Centro Social Cultural y Deportivo Hebraica”] (hereinafter the “Hebraic Center”) of Caracas.  As reported, approximately 30 members of the Bureau of Intelligence and Prevention Services [Dirección de los Servicios de Inteligencia y Prevención] (DISIP) broke through the entry gate to the center, and were then met by the guards at the facility who allegedly let them into the Hebraic Center.  According to reports, although no attorney from the Public Prosecutor’s Office was present, the police had allegedly brandished a warrant issued by the Third Control Court of the Caracas Metropolitan Area’s Criminal Court Circuit and from Prosecutor 41 of the Public Prosecutor’s Office for the Caracas Metropolitan Area.  While the warrant was undoubtedly unfounded, the DISIP personnel proceeded to conduct a thorough search in various parts of the institution.  According to reports, when the intelligence officers completed their search, they wrote out a report, in the presence of the President of the Hebraic Center, to the effect that nothing irregular had been found.  Various quarters of the Venezuelan and international Jewish community have voiced concern, as they believe that the search was highly irregular and an attempt to create tension between the Venezuelan Jewish community and the national Government.

365.          In response to this situation, and by the authority conferred upon it in Article 41(d) of the American Convention on Human Rights, the Commission requested the State to supply it with information on the events described and the motives for the search conducted at the Hebraic Center in Caracas on December 2, 2007.  On January 7, 2008, the State informed the Commission that “the purpose of the search in question was to inspect every room of the facility for evidence in an investigation into the alleged commission of a crime against the Public Order, the Collectivity or the Security of the Nation, such as guns and rifles, ammunition, explosives and materials needed to put together explosive devices.” The Commission considers that the information provided by the State with regard to the proceedings taken place in Hebraica headquarters, are insufficient in explaining the denounce circumstances take place in such institution.

366.          On the other hand the State reported the continuation in 2009 of “the media campaign to paint President Chávez as an anti-Semite; on January 31, 2009, the synagogue located in the Maripérez area of Caracas was vandalized by persons as yet unidentified. The Office of the Attorney General appointed National Inspector 41 Christian Quijada to begin investigations to identify the parties responsible for these acts.  A few hours after the vandalism, the President of the Republic, Hugo Chávez Frías, the foreign minister, Nicolás Maduro Moros, and other officials of the Venezuelan State roundly condemned those acts.  On February 6, 2009, the Attorney General of the Republic […], reported that her office had charged and subpoenaed, for the following February 13, […], who were on guard in the early hours of January 31, on which date a group of 10 to 12 people entered the synagogue of the Jewish community in Venezuela.”

367.          Given the information reported here, the Commission hopes that the Venezuelan Government will adopt the necessary measures to ensure full respect for freedom of conscience and religion within its territory and that it will continue investigating the incidents mentioned in this section.

VII.       FREEDOM OF EXPRESSION

368.          As in previous years, exercise of the right to freedom of expression in Venezuela continues to be a matter of special concern to the Commission.  In 2008, the IACHR received information, especially through the Office of the Special Rapporteur for Freedom of Expression, on situations detrimental to the normal exercise of this right.  The State indicates in this regard that the Commission employs a biased monitoring mechanism that leads it to condemn the State without any evidence. It notes that “there is no country in the world where freedom of expression is more respected, and the facts have borne this out; despite the fact that the media act as political parties, and have participated in the coup d’état, no media outlet has been closed, and no journalist has been arrested for exercising his or her right.”

369.          Among the development of particular concern to the Commission in the area of freedom of expression is the assassination of the Vice President of the newspaper Reporte Diario de la Economía, Pierre Fould Gerges, on June 2, 2008.  According to the information supplied, two unidentified persons on a motorcycle shot the victim at least twelve times when he was at a service station in Caracas.[427]  According to the information reported to the Commission, a various of newspaper executives and editors were allegedly threatened because of the newspaper’s editorial position, which had been critical with regard to supposed cases of corruption. Following the murder, the attorney representing the Reporte Diario de la Economía also complained of having received threats from private criminal groups, for making statements about the case.  Through its Office of the Special Rapporteur for Freedom of Expression, the Commission deplored the murder and urged Venezuelan authorities to investigate the crime promptly and effectively, and to duly prosecute those responsible.[428]  However, no progress in this investigation has been reported thus far.

370.          As observed in previous years, in 2008 the Commission continues to be troubled by the  intimidation targeted at private media outlets, particularly the Globovisión television channel, whose executives and staff continued to be protected by provisional measures first ordered by the Inter-American Court in 2004 and confirmed on January 29, 2008.[429] Despite the provisional measures ordered, the severe aggression by private groups against this media outlet has not stopped.  On September 23, 2008, the Globovisión television channel was the target of an attack.  The group calling itself the “La Piedrita Working Group,” which later claimed responsibility for the attack, threw two teargas bombs against the façade of the television station’s building and then issued a communication in which it declared “War to the death” on the channel and declared them to be “military objectives” should their plans for assassination and a coup d’état materialize.”[430] Later, on January 1, 2009, a teargas bomb was thrown onto the roof of Globovisión headquarters, forcing security staff to empty the building. According to reports, pamphlets with the initials of the La Piedrita group, which claimed responsibility for the attack, were found on the site; this group reaffirmed that both the television channel and the newspaper El Nacional were considered “military targets.”[431]

371.          On October 16, 2008 two new teargas attacks occurred.  One was on the home of Leopoldo Castillo, moderator of the Globovisión editorial program; the other attack was on the newspaper El Nuevo País, where Rafael Poleo is director.  According to the information received, the “La Piedrita” group, which describes itself as sharing an affinity with the government of Venezuela, claimed responsibility for the attack on the newspaper. Members of this group allegedly distributed a communiqué in which they declared Poleo to be a “military objective” because of the statements he had made about Hugo Chávez.[432] The statements made by La Piedrita do not appear to have been followed by a clear disavowal or disclaimer or any investigation on the part of Venezuelan authorities. It is worth noting that, using this same plan of attack, a serious attempt was made against journalist Marta Colomina on December 1, 2008; allegedly she was seriously injured in the attack, which was perpetrated despite having provisional measures ordered on her behalf by the Inter-American Court.  A teargas bomb was launched against her home, along with some pamphlets declaring her a “battle objective” and accusing her of promoting the plan to assassinate President Hugo Chávez. According to the information obtained, the “La Piedrita” group allegedly claimed responsibility for this incident.

372.          The Commission received reports of attacks by private groups against the headquarters of other media outlets in various parts of the country.  The weekly Dicho y Hecho in Bejuma, state of Carabobo, was reportedly the target of a gunfire attack on May 11, 2008.[433] On June 29, 2008, the facades of the Radio Pueblo, Rumbera Network, Plata, Pachanga, Guarachera, Sonido, Favorita and Radio San Carlos stations, all in the state of Cojedes, were painted with graffiti the night before accusing them of lies and threatening them with attack.[434]  On July 15, 2008, two unidentified persons fired on the headquarters of Radio Marabina 1420 AM, in the state of Zulia.[435]  In late July, a group of unidentified persons threw rocks and metal objects against the booth of Radio Color 99.5. In August 2008, the premises of Radio Auténtica 107.5 in Maracay, state of Aragua, was also the target of gunfire; its journalists had complained of receiving threats.[436]  Another similar incident of intimidation was allegedly reported in October 2008, with the newspaper Panorama in the city of Maracaibo.[437]

373.          The Commission, through the Office of the Rapporteur for Freedom of Expression, also received a report of numerous acts of aggression, threats and attacks on journalists, either by representatives of the State or private persons.  On July 23, 2008, for example, a journalist with the newspaper La Verdad, Dayana Fernández, and photographer Luis Torres allegedly were the target of hostile acts by municipal agents in Maracaibo while the two were investigating issues of environmental contamination.[438] In another case, Guillermo Torín, sound engineer at channel ANTV, was reported to have been beaten by a group of supporters of the mayor of Chacao when Torín was there to cover the mayor’s registration for the regional elections on August 22, 2008.[439]

374.          In some of the cases reported, the assault or attack was intended to prevent the journalist from gathering or reporting information.  This was what happened on July 25, 2008, when the Police at Barinas Airport detained Dimas Medinas from the newspaper El Nacional and confiscated an official document about a robbery that happened to someone close to the President of Venezuela, Hugo Chávez.[440]  Complaints and alerts have also come in from reporters and media outlets that received threats about articles published or news stories carried on radio and television.  In July 2008, the attorney for  and President of the newspaper Reporte de la Economía received death threats after they announced that they would disclose the names of those alleged to be responsible for the death of that newspaper’s vice president.[441] As it did in earlier reports, the Commission must express its concern over attacks of this kind, which obstruct the unfettered exercise of the right to freedom of expression both by independent journalists and by media outlets that support the government’s policies.

375.          As for the reported acts of hostility and violence against Globovisión, the State has affirmed: “The Commission persists in pointing to intimidation of and acts of hostility against social communicators, television channels like Globovisión that have protective measures which at all times have been observed by the Venezuelan State, with the exception of minor incidents by third parties who on some occasions have conducted protests outside the station and have painted graffiti and thrown a few teargas bombs, the perpetrators of which have not been identified, as protests against that television channel’s bias against the government of President Chávez.”

376.          The Commission observes that the present environment of hostility and polarization has been prompted by the institution of administrative actions seeking to attach responsibility to media outlets independent of the government for views expressed on live programs by persons not belonging to the channel.  On October 13, 2008, Rafael Poleo, invited to an opinion program on the Globovisión channel, broadcast live, said that the President of Venezuela “is going to end up like Mussolini: hanging head-down.”[442] Immediately, the program director asked him to moderate his remarks. In application of Article 29, item 1, of the Law on Social Responsibility in Radio and Television, the National Telecommunications Commission (Conatel) opened an administrative action against the channel for alleged incitement to assassination and issued a precautionary measure ordering the channel to refrain from broadcasting unlawful messages at any hour. As of the date of this report, December 1, 2008, a final decision in this action remains still pending.

377.          Later, CONATEL opened a new administrative action against Globovisión. In the early hours of November 24, 2008, after the polls closed, this media outlet broadcast statements from the then-candidate for governor of the State of Carabobo, which said “here in Carabobo we demand the results from the CNE without delay, but since they continue to slow the process I want to ask all of the people of Carabobo, all you who support me, to go with me to the Electoral Board to claim victory in Carabobo.”  On that same date, in the evening, President Hugo Chávez asked CONATEL to open an investigation of one channel, which he did not identify, for having reporting election results prematurely. Later, one of the rectors of the National Electoral Council (CNE) reported that no media outlet had committed any electoral offense. It clarified, furthermore, that the only body competent to issue administrative sanctions in electoral matters was the Electoral Authority[443]. Despite these statements, CONATEL found that the broadcast might constitute a violation of the provisions of Article 29, item 1, of the Law on Social Responsibility in Radio and Television, in the sense of broadcasting messages that could incite disruptions of law and order. This same article provides that a repeat offense could lead to a permanent revocation of Globovisión’s franchise[444].

378.          In addition to the investigations mentioned in previous paragraphs, there have been reports of an additional action against independent communicators or those critical of the government. On November 27, 2008, deputy Mario Isea presented to the plenary National Assembly a final report on an alleged plan to assassinate President Chávez. Among those accused as masterminds of the plan are nine persons, five of whom are media outlet directors, including: Alberto Federico Ravell, director general of Globovisión; Nelson Mezerhane, director of Globovisión; Rafael Poleo, director of the newspaper El Nuevo País;  Marcel Granier, director general of RCTV; and Miguel Henrique Otero, managing editor of El Nacional[445].

379.          The Commission recognizes the legitimate right of the State to investigate situations that threaten State security. However, in matters of such gravity, investigations and public accusations by high-ranking officials should be supported by sufficient and convincing evidence, not by the issuance of opinions that are critical of or even offensive to government officials, as seems to be the case in this instance, according to public information available on the official page[446].  This takes on greater weight if one considers that death threats and violent attacks on communicators and media outlets critical of the government have been conducted with the excuse of private justice against those who allegedly perpetrated the crimes mentioned in the previous paragraph.

380.          On this matter, the State indicates that, after the matter is considered by the Commission of the National Assembly, “the Office of the Attorney General is in charge of the corresponding criminal investigation, and for this reason one cannot speak of intimidation or attacks against the Globovisión channel.”

381.          Some provisions of the Law on Social Responsibility in Radio and Television are of special concern for the Commission.[447]   For example, provisions like Article 29(1) set very punitive sanctions for violating restrictions that are defined in vague or generic language.[448]  The Commission is also concerned that its application could result in the attachment of responsibility to a media outlet for an activity of a third party, not employed by the channel, in a program broadcast live, or for the broadcast of the speech of a politician.

382.          The Commission recalls that principle 5 of the Inter-American Declaration of Principles on Freedom of Expression states that “[r]estrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression;” 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.”[449]

383.          As for the placement of official advertising, the Commission has received information that allegedly shows a tendency to place advertising with media outlets that support the Government.  According to the research findings provided by the organization “Espacio Público,” 89% of the advertising in print media appears in newspapers and magazines sympathetic to the government.  In this connection the State indicates that “sovereign States like Venezuela have the authority to place their advertising in the outlets most advantageous to the national interest.“

384.          Here, the Commission should point out that Principle 13 of the Inter-American Declaration of Principles on Freedom of Expression provides that “the arbitrary and discriminatory placement of official advertising and government loans (…) ; the concession of radio and television broadcast frequencies, among others, with the intent to put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express threaten freedom of expression, and must be explicitly prohibited by law.”

385.          The Commission has also been informed that there may be a discriminatory policy as regards the right to access public information has also been reported.  For example, on May 8, 2008, a team from Globovisión allegedly prevented access to the opening of the “First South American Energy Council;” on April 14, 2008, entry allegedly was denied to the Ministry of Education, where it wanted to cover the discussion on “Curriculum Design for the Bolivarian Educational System.”[450]

386.          The Commission has also been informed that serious limitations hinder access by private parties to public information.  According to a research study presented by the organization “Espacio Público” at the Commission’s 133^rd session, authorities did not reply to 70.7% of the information requests that the organization tracked, all of which were submitted in writing to State institutions.[451]  The same study found that less public information is being reported at government agency Web sites. For example, in the case of persons with dengue or infected with HIV, the report found that fewer figures are available and that most of the information disclosed concerns the guidelines for advertising and reporting the government’s achievements.

387.          In the decisions delivered by the Venezuelan courts, the Commission finds jurisprudence that could establish regressive standards vis-à-vis freedom of information.  For example, in a September 12, 2008 ruling, the Supreme Court declared inadmissible a petition seeking amparo relief that a cooperative had filed against the mayor’s office of the capital district to get information on certain relocations.  The Court held that because officials at the mayor’s office had met with individuals from the cooperative on a number of occasions and there discussed the matter at issue in the petition of amparo, the administration could be said to have responded appropriately.   The Commission should point out that the Inter-American Court has written that “the State must guarantee that there is a simple, prompt and effective recourse that makes it possible to determine whether there has been a violation of the right of the person requesting information and, where appropriate, to order the corresponding body to disclose the information.”[452]

388.          It is the Commission’s view that the conduct and behavior described in this section do not foster the climate of tolerance that is conducive to active participation and the free flow of ideas among the various sectors of Venezuelan society.  The numerous violent acts of intimidation by private groups against journalists and media outlets, in addition to the discrediting statements of high officials, and the systematic institution of administrative actions based on legal provisions the application of which is highly discretionary and that allow for drastic penalties, together with other facts, create a restrictive climate that dampens the exercise of freedom of expression that is one of the essential preconditions for a vigorous democracy built upon pluralism and public discourse.

VIII.      INSTITUTIONALITY AND ADMINISTRATION OF JUSTICE

389.          The Commission has paid particular attention to the administration of justice in Venezuela and has expressed concern over certain factors that could adversely affect the independence and impartiality of the Judicial Branch.  One such factor is the high percentage of judges and prosecutors who are serving provisionally and the failure to comply with legal and constitutional procedures that must be followed in appointing judges to the bench and removing them.  Another concern is the impunity that attends human rights violations.

390.          In 2008, the Commission continued to observe these factors, and also received information to the effect that the July 31, 2008 enactment of 26 laws decreed under the January 31, 2007 Enabling Act, was in violation of the provisions governing the “enabling” procedure.  With the information it received in 2008, the Commission will address the following: a) the guarantees of independence and impartiality of the Judicial Branch and the Public Prosecutor’s Office, and b) the 26 decree laws enacted by authority of the Enabling Act.

A.        The guarantees of the independence and impartiality of the Judicial Branch and the Public Prosecutor’s Office

391.          In 2008, the IACHR continued to receive information about the situation of tenure of the so-called temporary or provisional judges.  That persistence of this endemic problem is obvious from the high numbers of judges who received either provisional or temporary appointments in 2008.  According to the information received, between January 1, 2008 and September 30, 2008, approximately 1407 judges were named; of these, 919 are temporary, 322 are ad hoc, 159 are provisional, 4 are alternates and 3 are tenured.[453] From the 919 temporary judges, approximately 854 were named to fill seats on the bench vacated because of vacation, leave, disqualifications and recusals of other judges; of the 159 provisional judges appointed, 22 were named to fill seats on the bench vacated by judges who retired. According to the information received, these appointments do not follow the procedures established by the constitution.

392.          The Commission has also observed that the decisions on appointments of provisional and temporary judges were taken on the basis of articles 255 and 267 of the Constitution, and the final clause of Article 20 of the Organic Law of the Supreme Court which takes into account “[…] the urgency of filling vacancies that occur on the benches of the Nation’s courts, to avoid a paralysis of judicial proceedings, and upon examination of the credentials of the candidates for the bench […].”[454]  Article 255 of the Venezuelan Constitution provides that “[a]ppointment to a judicial position and the promotion of judges shall be by public competition to ensure the qualifications and excellence of the participants, with selection by the juries of the judicial circuits, in such a manner and on such terms as may be established by law.”   Despite this provision of the Constitution and even though Standards to Govern Evaluation of and Competition among Candidates for the Bench do exist, the mechanism that these provisions establish for the selection of judges is apparently not being used; instead, appointments are being made on the premise the “urgency” is a permanent condition.

393.          As the Commission previously observed, the failure to follow the procedures prescribed in the Constitution and the law for judicial appointments and the vacuum in the law as regards the categories of judges mentioned above exposes these officials to possible undue pressure in the exercise of the important function they perform and thus pose a serious threat to the independence of Venezuela’s judiciary.[455]

394.          In the Case of Apitz Barbera et al. (“First Contentious Administrative Law Court”) v. Venezuela, the Inter-American Court of Human Rights held the following with regard to provisional judges and their removal:

[…] States have an obligation to ensure that provisional judges are able to function independently; therefore, they also have an obligation to provide them with some form of stability and tenure on the bench, since provisional status is not the same as discretionary removal or displacement. […] [T]he Court’s view is that provisional status ought not to in any way alter the system of guarantees that ensures the judge’s performance and protects the parties standing trial.  Furthermore, provisional status should not be for an indefinite period of time and should be subject to some condition subsequent such as completion of a predetermined time period or the holding and completion of a public competition based on qualifications and credentials and resulting in the appointment of someone who will be the provisional judge’s permanent replacement.[456] Provisional appointments should be the exception and not the rule.  If judges remain provisional for protracted periods of time or if the majority of judges on the bench are provisional, either situation will pose major obstacles for the independence of the judiciary. This weakness in the Judicial Branch is made all the worse when no removal procedures are in place that respect the States’ international obligations.[457]

395.          Venezuela’s National Judiciary School has recognized the problem posed by the provisional status of judges.  It observed that “the provisional status of judges and the weaknesses in the training and education that judicial officers receive have been singled out as the most significant problems in Venezuela’s administration of justice in recent decades.”[458]  Having come to this realization, the National Judiciary School has set in motion a series of initial and continuing education programs for judges.  In its 2007 report, the Commission took a favorable view of the creation of an Initial Training Program that would evaluate 3,916 candidates for the bench, who would then compete for judgeships.[459] From the information reported on the National Judiciary School’s Web site, the Commission has learned that the Initial Training Program (2007-2008) was conducted.  However, the Commission has no information about the concrete results of the program, such as the competition, the program’s impact on the appointment of judges, and whether the National Judiciary School proposes to continue the program.

396.          The Commission also learned of the Special Training Program for Judges Seeking Tenure, offered by the National Judiciary School.[460]  Its objectives are “1) to reinforce the participants’  sense of ethics, moral values and social sensitivity, based on an interpretation and discussion of the meaning of the law and the impact of judges’ decisions, and 2) to build up the non-tenured judge’s knowledge of the law, taking into account his or her experience in the administration of justice.”[461]  The Commission hopes that this program will serve to improve the independence and impartiality that every system for the administration of justice must have.  The IACHR echoes what it said in its most recent report, to the effect that it expects the Venezuelan State to strictly comply with the provisions governing elevation to the bench and promotion of judges, and to establish clear regulations regarding the categories of judges and the guarantees of tenure that attend each category.[462]

397.          In this regard, the Inter-American Court has written that while independence and impartiality are interrelated, each has its own juridical significance.  The Court points out that one of the principal purposes of the separation of public powers is to guarantee the independence of judges and that “impartiality requires that a presiding judge is able to approach the facts in a case without any prejudice from the subjective standpoint, and offer sufficiently objective guarantees as to dispel any doubt that the person on trial or the community may have as to whether impartiality is lacking.”[463]

398.          The Commission was also informed that the practice of appointing provisional prosecutors continued in 2008.  According to the information received, between January 1, 2008 and October 23, 2008 approximately 371 prosecutors were appointed:  of these, 201 are interim assistant prosecutors, 145 are provisional prosecutors, 10 are alternate prosecutors, 6 are provisional superior court prosecutors, 6 are superior court prosecutors, and 3 are superior court chief prosecutors. The Commission is concerned by the absence of tenure in the prosecutorial appointments and repeats the observation it made in its last Annual Report underscoring the importance of proper implementation of the prosecutorial career service, given the central role that the Public Prosecutor’s Office plays in moving criminal investigations forward.  The Commission also reiterates how important it is that prosecutors have the tenure needed to ensure their independence, impartiality and qualifications and thus guarantee effective inquiries and eliminate the factors contributing to impunity, especially in cases involving human rights violations.[464]

399.          The IACHR applauds the creation of the National Prosecutors School, established through Resolution No. 263, published in the Official Gazette of April 8, 2008.  The resolution states that the mission of the National Prosecutors School shall be “to provide officials attached to the Public Prosecutor’s Office with a solid academic background, ethical and moral values, competence in scientific and technological investigation and humanistic research, skills in the use of the existing body of laws and a sense of humanity.”[465] At the ceremony held to open the School the Attorney General of the Republic, Luisa Ortega Díaz, said the following:

[p]rosecutors whose appointments are provisional are at a disadvantage; their provisional status exposes them to the influence of pressure groups, which would undermine the constitutionality and legality of the system of justice.  Provisional status in the exercise of public office is contrary to Article 146 of the Constitution of the Bolivarian Republic of Venezuela, which provides that positions in government are career service and won by public competition.[466]

400.          The Commission is following closely the development of the National Prosecutors School and hopes that with this initiative, the number of provisional prosecutors decreases and that officials attached to the Public Prosecutor’s Office achieve a higher professional standard, to better ensure independence and impartiality in the performance of their functions.

401.          Finally, the Commission has learned that on October 14, 2008, the National Assembly passed the Draft Organic Law of the Justice System on the first round of debate.[467]  Salient among the bill’s provisions is one that creates the National Justice System Commission (CNSJ) “[…] as a permanent body to plan and coordinate the Justice System’s policies and programs.”[468] Under Article 2 of the bill, the CNSJ will be composed of two deputies from the National Assembly, three justices on the Supreme Court, two cabinet ministers, the Attorney General of the Republic, the Ombudsman, the Prosecutor General of the Republic and one National Assembly deputy representing the indigenous peoples and communities.[469]

402.          In this respect, the Commission observes that the Constitutional Chamber of the Supreme Court, wrote that:

[…] under the Constitution […] the Ombudsman’s Office is not part of the justice system per se, [and is not] part of the structure for the administration of justice. Like any citizen or private or state entity, [the Ombudsman’s Office] has recourse to the justice system.  However, it is not part of the justice system in the way that the Public Prosecutor’s Office is, which has the authority to prosecute a criminal case.  Nor is it part of the administration of justice in the way that the Office the Public Defender is.  The latter serves as defense counsel when the law so allows and thus as guarantor of the right of defense.  In so doing, the public defender becomes a central figure in the proceedings, an essential figure for the defendant who requires his services.[470]

403.          The Commission hopes that the National Assembly will consider the effects that this bill might have for the autonomy of institutions like the Ombudsman’s Office, which is charged with promoting and protecting human rights and the independence of the organs of the justice system.