IACHR ANNUAL REPORT 2008

 

CHAPTER IV - HUMAN RIGHTS DEVELOPMENTS IN THE REGION

 

VENEZUELA (Continuation)

 

B.         The 26 Laws Decreed Under the Enabling Act

 

404.          On January 31, 2007, the National Assembly handed over legislative authority to the President of the Republic for a period of 18 months authorizing the President to issue decrees with the stature, value and force of Law on the different subject matters.  Accordingly, on July 31, 2008, the day on which the authority granted under the law giving the president legislative authority expired, the Chief Executive issued 26 laws in a number of areas:  i) military; ii) geography, territory and tourism; iii) agriculture, livestock, foods and services; iv) housing; v) social security; vi) national public administration, and vii) the economy.[471]

 

405.          During 2008 the Commission received expression of concern[472] regarding the sudden approval by the President of the 26 decrees with the stature, value and force of law on July 31, 2008 without debate and lacking the consultation required under Articles 136[473] and 137[474] of the 2001 Organic Law of the National Public Administration[475]. Additionally, in doing so, the President also did not confer with the states as required under Article 206 of the Constitution.[476] According to the information received, “the absence of consultation […] violates the right to the political participation, which is a fundamental right and constitutes one of the fundamental principles that inform the juridical Venezuelan system”.[477] In view of the information received, the Commission considers of special importance that, in use of the faculties granted by Enabling Law, the State respect the requirements established by law, in such a manner as to guarantee the suitable participation of the diverse sectors which the law establishes.

 

406.          The Commission is concerned by the fact that Article 140[478] of the new Organic Law on Public Administration no longer requires prior consultation in the case of extraordinary legislation “[…] when an emergency arises, when dictated by the State’s obligations vis-à-vis the public’s safety, security and protection, or in cases involving the special legislation provided for in the Constitution of the Bolivarian Republic of Venezuela.”[479]  The Commission is unease about the fact that the amendment might open up the possibility that special laws affecting the states can be enacted without their being consulted beforehand. 

 

407.          The Commission has also learned of the concerns expressed by some civil society organizations over the Organic Law on the Bolivarian National Armed Forces, decreed under the Enabling Act.[480]  The purpose of the law is to “set out the principles and provisions that will govern the organization, operation and administration of the Bolivarian National Armed Forces, under the principle of the shared responsibility of the State and society as the basis of national security, to serve the ultimate purpose of preserving the Constitution of the Bolivarian Republic of Venezuela and the Republic.”[481]

 

408.          Some of the concerns of the organizations are over the fact that the law in question creates the Bolivarian National Militia as a “special corps organized by the Venezuelan State, composed of the Military Reserve and the Territorial Militia, and to be used to augment the Bolivarian National Armed Forces in the Integral Defense of the Nation and in so doing help to guarantee its sovereignty and independence.”[482]  The law states that the Bolivarian National Militia is under the direct command of the President of the Republic.  Its mission is to “train, prepare and organize the people for the Integral Defense of the Nation, and thus complement the operational readiness of the Bolivarian National Armed Forces, help maintain the Nation’s domestic order, security, defense and integral development, all in order to help preserve the independence, sovereignty and integrity of the national territory.”[483] The Commission has no detailed information about the mission of these militias, the recruitment process, who trains them and their specific functions.  

 

409.          The government publication titled “Decálogo de las Leyes Habilitantes” [The Principles of the Enabling Laws] states that these laws “transcend the traditional classification that divides society into ‘the military’ (the armed forces) and ‘the people,’ by instilling in the citizenry a sense of shared responsibility for the nation’s defense.”[484]  The publication states that it is a “revolutionary truth” that “militias have always been demonized, when in fact they are composed of the reserve forces shoulder-to-shoulder with the people, ready to defend their revolution […] [and that] some despotic governments refuse to make their people part of their defense strategy, for fear that they will be toppled by the might of their own people.”[485] This ambiguity in the definition of the structure, functions and control of the militias is of concern considering the possibility that the same ones could make use of the weapon without set limitations.

 

410.          Finally, through articles in the press, the Commission has learned that a group headed by the former director of data processing at the Ministry of Defense, retired Colonel Antonio Varela, has filed suit with the Supreme Court challenging the constitutionality of the laws decreed under the Enabling Act.  The suit argues that “based on the decree law on the Armed Forces [and] what was published of the 26 articles in Official Gazette 38,984, the requirement for enactment of a law has not been met; although the 26 decrees appear by name, the full text of the law[s] was not published, which would render them null and void.”[486]  However, the Commission does not have any information as to whether the suit was heard and, if so, what the outcome was. For its part, the Venezuelan State indicated that it does not agree “that the Commission may interfere and issue judgments on the inherent authority of the Executive, represented by the President of the Republic, and of the Legislature, represented by the National Assembly in the full exercise of its right to issue enacting laws, in accordance with the Constitution of the Bolivarian Republic of Venezuela.” Therefore, it declined to comment on this section, calling it “another instance of the Commission’s lack of respect toward the Venezuelan State”.

 

IX.        CITIZEN INSECURITY AND IMPUNITY FOR HUMAN RIGHTS VIOLATIONS 

 

411.          In 2008, the Commission received information on the violence and the lack of citizen security in Venezuela, especially in the form of homicides and extrajudicial executions, and the lack of an effective response from the organs charged with investigating, prosecuting and punishing crimes of this type, which means that the perpetrators do no answer for their crimes. During this period, the IACHR received information from human rights organizations[487] reporting that a number of leaders of organized labor had been killed[488].  The Commission does not have detailed information concerning the circumstances surrounding the union leaders’ deaths. However, the Commission is concerned by the reported numbers of union leaders who fall victim to attempts and threats on their lives and physical well-being, and therefore requests, the Venezuelan State to explore and analyze this problem and devise adequate and effective measures to prevent it and to investigate and punish those responsible.

 

412.          The Commission has learned of a survey conducted by the Instituto Venezolano de Análisis de Datos [Venezuelan Data Analysis Institute] which found that 77% of the Venezuelan public believes that the main problem facing the country is insecurity.[489] It has also received reports to the effect that between 2000 and 2007, complaints were filed alleging over 6,000 extrajudicial executions committed by police.[490]  According to those reports, of the 2,000 police agents implicated, fewer than 400 had been provisionally detained.[491]

 

413.          The Commission received reports on various initiatives taken by the government, such as the strategy to combat the lack of citizen security and impunity in the case of human rights violations.  According to figures sent by the Ministry of the People’s Power for Interior Affairs and Justice, in the period from January to September 2008, a total of 1,350 robbery attempts, 1,317 cases of attempted battery, 690 attempted thefts and 375 attempted homicides and other crimes were recorded.[492]  In that same period, the government reported that 13,257 persons were detained from which 2,715[493] were detained in flagrante. The Commission has also been informed of the implementation of the “Caracas Security Plan,” installation of phone lines to report crime, and various campaigns to inform and educate the public about human rights using informative pamphlets and brochures.[494]

 

414.          The Commission received information indicating that there have been no consolidated figures on the number of homicides since 2005.  The Commission is troubled by the absence of official figures on violence and crime.  A report done recently by the Venezuelan Observatory of Violence contains figures on the alarming increase in the number of homicides.  According to that report, there were 5,974 murders in 1999; 9,244 in 2002 and over 13,000 in 2003.  The study points out, however, that the murder figures for 2004 and 2005 have not been made public.[495] On those figures, the Venezuelan State said it regrets “that the Commission not only distorts figures on homicides and property crimes but also […] this violation of the right to life is dated quite some time ago.” The Commission regrets that in response to this complaint the State has not provided information that might clarify the figures and information received by the Commission so that the latter might evaluate such new information and include it in this section.

 

415.          Through non official press reports, the Commission has learned that from January to September 2008, there were reports of thousands of homicides in Venezuela.  The press reports indicate that

 

The index of murders happened in the whole country during three trimesters already completed in 2008, according to numbers of the Scientific, Penal Investigations and Criminalist body, closed with 9.653 murders.

 

According to the report that it [the Statistics Office of the Scientific, Criminal and Criminological Investigation Corps] disclosed off the record, the most violent month in 2008 was July with 1,215 homicides, followed by June with 1,102 cases, and then September with 1,097 reported murders.[496]

 

416.          The figures that the Venezuelan Observatory on Violence compiled on homicides in various cities and states nationwide indicate that Caracas’ murder rate is over 100 for every 100,000 inhabitants.[497]  The Commission also noted the uptick in violence in other parts of the country.  In the state of Carabobo, various operations offices of the CICPC, the Forensic Pathology Department at the “Dr. Adolfo Prince Lara” Hospital in Puerto Cabello and the “Dr. Enrique Tejera” Hospital Complex (CHET) in Valencia have reported 1,642 murders as of October 2008.  In 2007, the CICPC reported 1,423 murders in Carabobo, which would mean that even though the year is not yet over, the murder rate is already up by 15% in that state.[498]  The non official press information reported that in Carabobo,

 

[…] investigations have been opened into 68 cases involving anti-socials who were killed resisting the authorities, 122 citizens killed attempting to resist robbers, 34 killed in fights, 66 revenge killings, 54 murders to square accounts, and 23 cases of people who perished when caught in the line of fire.  Seven neighborhood thugs were lynched.[499]

 

417.          The Commission observed with concern that despite the lack of public and accessible data and statistics on this matter, all the available information aims at concluding that there exists an increment in the levels of violence.  Accordingly, some mention must be made of the need for policy reform and of the study and recommendations prepared by the National Commission for Police Reform (CONAREPOL) and the new Police Law.

 

418.          For example, according to the Venezuelan Observatory on Violence, the citizens of Caracas have a very unfavorable view of the job being done by the national police forces, the Metropolitan Police, the Bureau of Intelligence and Prevention Services (DISIP) and the former Judicial Investigative Police, now called the CICPC.  Some 42.4% of the citizens believe that the police are doing a “very bad” job; 9.5% take a very favorable view of the job being done by the police, and 27.4% believe that the police engage in common crime.[500] 

 

419.          In its 2007 report, the Commission applauded the creation of CONAREPOL.[501]  The latter issued its diagnostic study in 2007 underscoring the need for police reform.  In its conclusions, the CONREPOL report stated the following:

 

The high incidence of police violence, the inability of the uniformed police forces to fight crime and the fact that police officers are often participating in criminal activities:  these factors alone dictate the need for immediate reforms. In 2005, the reported crime rate nationwide was 877 per 100,000 inhabitants, with 37 homicides for every 100,000 inhabitants, one of the highest rates in Latin America (Provea, 2006).  According to the figures supplied by the Attorney General’s Office, between 2000 and 2006 police agents killed over 5,600 people.  In the months just prior to the launch of the reform process, police agents were involved in at least three cases that drew heavy public protest:  the deaths of three juveniles in Barrio Kennedy in Caracas in June 2005, who were killed by investigative police officers who mistakenly believed them to be responsible for the death of a police officer with that same outfit; the abduction and murder of three children and their driver, and the abduction and murder of an Italian businessman.  The last two cases both occurred in March 2006.  This combination of factors led to the decision to undertake reforms long overdue.[502]

 

420.          As a result of the push for reform, on February 28, 2008 the President, in exercise of his authority under the Enabling Act, issued the Decree for the Organic Law of the National Police Service and National Police Corps.  The Commission must underscore the importance of police reform.  However, it has learned that the law underwent last minute changes that could adversely affect the independence of the police force and its effectiveness in discharging its functions.  One specific change was with the General Police Council (CG):  the Ombudsman’s Office, the governors’ offices, mayors’ offices and the Public Prosecutor’s Office, which had been members of the CGP but were no longer to participate.   It was also reported that the new law eliminated some of the judicial controls over a police force and over the Office of the Special Counsel for Police Rights.[503]

 

421.          The Commission has made note of the concerns expressed by some organizations in Venezuelan civil society over the failure to implement the CONREPOL recommendations and over the fact that institutions that had long been members of the General Police Council no longer serve on it, making it impossible for those former member institutions to follow developments.[504]  Here, the IACHR is compelled to repeat the observation it made in its 2007 Annual Report to the effect that the Venezuelan State’s duty to prevent, investigate and punish violations of the right to life and to humane treatment is not confined to violations committed by State agents; instead, the State must also prevent, investigate and punish crimes in which private persons are involved, such as contract killings. Apart from diligence in the investigations and enforcement of administrative, disciplinary and criminal sanctions, persons belonging to the State security forces –whether police or military– should have clearly defined authorities that conform to the aforementioned standards and must be properly trained in the area of human rights.[505]

 

422.          The establishment of the Police System Commission (COMISIPOL) is a major development.  It will be in charge of executing the transformation process and establishing the new Venezuelan police system.  The Minister of the People’s Power for Interior Affairs and Justice said that COMISIPOL “will be a transitional body and will lay the groundwork for Venezuela’s new police model.  Its Permanent Executive Secretariat will carry out the work of the working committees, each of which has a specific assigned agenda.”[506]  The Commission notes the plans and programs implemented by the State to deal with the violence and insecurity plaguing the country and expects the State to report the results obtained and their effectiveness. 

 

423.          The Commission also observed that on May 10, 2008, the Law on the National Intelligence and Counterintelligence System was decreed under the Enabling Act, and was then struck down on June 10, 2008.  Article 16[507] of the law set the stage for creating a nationwide system of informants that, under Article 20[508] of the law, could be used to obtain information, documents and objects relevant to the Nation’s security, defense and integral development, all without having to obtain a court order. The Commission was happy to receive the news that the law was struck down and that it was the President’s intention not to include provisions of this kind in Venezuela’s laws ever again.[509]

 

X.         SITUATION OF PERSONS DEPRIVED OF LIBERTY

 

424.          The Commission welcomes the initiative that the State is taking through the Ministry of the People’s Power for Interior Affairs and Justice whose General Directorate of Human Rights appointed human rights delegates for all prison centers nationwide and the detention centers located in some police stations.  The idea is to be able to respond quickly to outbreaks of violence and other complaints lodged by persons deprived of liberty.[510]

 

425.          The foregoing notwithstanding, in 2008 the Commission continued to receive information on the alarming number of incidents of violence in Venezuelan prisons and jails.  Prison violence in Venezuela continues to exact a heavy toll in the life and personal integrity of persons deprived of liberty.  According to the information provided, in the period from January to September 2008, 609 inmates were injured and 357 died in Venezuela’s prisons.[511]  The Commission observes that out of these totals, 112 fatalities and 233 of the injured occurred in the four prison facilities for which the Inter-American Court of Human Rights ordered provisional measures (the Monagas Judicial Confinement Center, the Yare I and Yare II Capital Region Penitentiary Center, the Uribana Penitentiary Center of the Central Occidental Region, and the Capital El Rodeo I and El Rodeo II Judicial Confinement Center).

 

426.          Of these establishments, in 2007 and 2008 the percentage of deaths and injuries resulting from internal fighting and ineffective control by prison guards was very high at the Capital El Rodeo I and El Rodeo II Judicial Confinement Center (hereinafter the “Rodeo Prison”). In response to the situation, on December 17, 2007 the Commission requested that the Inter-American Court order provisional measures to protect the life and physical well-being of the persons incarcerated in Rodeo Prison, and that of the people entering that facility, including relatives and other visitors.  On February 8, 2008, the Inter-American Court decided to order the State “to adopt the provisional measures necessary to protect the life and physical integrity of all the people confined in Capital Judicial Confinement Center Rodeo I and Rodeo II, especially in order to prevent injuries and violent deaths.” To this day, the Commission continues to keep the Court informed of the continuing acts of violence within that prison, which have resulted in loss of life and injury.

 

427.          As in the case of Rodeo Prison, the Commission has continued its periodic monitoring of the situation in the Monagas Judicial Confinement Center (“’La Pica”) Prison and Uribana Prison.  The Commission is disturbed by the fact that despite the provisional measures ordered by the Court, the violence at those prisons continues to claim lives and inflict injuries.  In 2008, the Commission filed a request by the authority given to it in Article 41(d) of the American Convention on Human Rights, seeking information from the State about the incidents of violence in Sabaneta Prison in the state of Zulia.

 

428.          Throughout the year, the Commission watched with concern as protests were staged at 11 prisons in Venezuela.  The protests were in the form of hunger strikes and self-sequestrations in which 3,000 relatives of inmates remained behind at the prisons after visiting hours were over.[512]  According to the information compiled, the striking inmates’ demands included swifter action on judicial proceedings, access to alternative ways of serving one’s sentence, improvements in infrastructure tailored to the prison population, a stop to physical mistreatment by members of the National Guard, permission for children to visit the prisons and respect for family members, who have been humiliated by the security forces.”[513]

 

429.          According to information in the public domain, on April 21, 2008 the Constitutional Chamber of the Supreme Court heard a petition filed by the Office of the Ombudsman in defense of the collective rights of those prosecuted, sentenced, and serving time in the country’s prisons, and challenging the constitutionality of certain articles of the Criminal Code that put specific limits on the exercise of the right to procedural benefits [and] access to alternative methods of serving sentence.  The Court ordered a precautionary measure to suspend those provisions until the final decision on the merits of the case is taken.[514]  According to information supplied by the State, the suspension of the challenged provisions could benefit approximately 1,994 inmates, which would be 25.58% of the prison population nationwide.

 

430.          The Commission believes that the urgency of the situation in Venezuelan prisons is so immediate that the Venezuelan State must take immediate measures to lower the threat to persons deprived of liberty and thus in the custody of the State.  The jurisprudence constante of the inter-American system is that when a State deprives a person of his or her freedom, it has a special role to play as guarantor of that person’s rights.  The obligation that comes with the role of guarantor means that agents of the State must not only refrain from doing anything that could be harmful to the inmate’s life and physical well-being, but must also do everything in their power to enable the inmate to continue to enjoy and exercise his or her fundamental rights, especially the right to life and the right to humane treatment.

 

431.          On the situation of persons deprived of liberty, the State said it was in the process of taking “expedited corrective measures, including staff training, creation of human rights offices with specialized staff, staff training in penitentiary matters–for comprehensive custody - and the replacement of management with qualified personnel with broad experience in this area”. It reported that the “Venezuela Ejective, in accordance with the obligations set forth in the Constitution of the Bolivarian Republic of Venezuela, and in the exercise of the authority conferred in Article 236 of the Constitution, on December 15, 2008, by decree Nº 6,553, the President of the Bolivarian Republic of Venezuela, Hugo Chávez Frias, created the Superior Penitentiary Council[515], a national governing body, charged with the design and formulation of structural policies to deal with the penitentiary system in an integrated fashion.” To that end they indicated “the Superior Penitentiary Council consists of a representative of the Legislature, in the form of an organ of the National Assembly; of the Executive, through organs of the Ministries of Education, Sports, Culture, Economy, Health, Higher Education, and Interior and Justice, the latter presiding; of the Ministry of Defense, through a component of the Bolivarian National Guard; of the Judiciary, through the Supreme Tribunal of Justice; of the citizenry, through the Office of the Attorney General and the People’s Defender’s Office and the “Youth Take the Jails” Foundation (Fundación la Juventud Toma las Cárceles).

 

432.          It said also that “in the decree creating the Superior Penitentiary Council there are provisions for regional penitentiary councils, which the Superior Council may establish as necessary, as functional, decentralized state units charged with the direct supervision and control of the plans and programs created. These regional penitentiary councils will be made up, potentially, of state representatives of the bodies making up the Superior Council, who will apply the directives issued by the governing body.  Also serving on regional penitentiary councils may by community councils and other types of community organizations. The Superior Penitentiary Council will be made up principally of four committees:  the Committee on Penitentiary Policy, charged with the creation, implementation, and supervision of comprehensive care programs for the inmate population, promoting their effective incorporation or reincorporation into the community, and preventing individual and collective acts of violence within the penitentiaries; the Legal Status Update Committee, mainly charged with the ongoing update of the legal status of persons deprived of liberty, implementing the necessary plans to achieve an expeditious and timely judicial process; the Legal, Regulatory, and Legislative Committee, charged with proposing, to the competent bodies, proposed regulations to govern penitentiary matters, as necessary to lay the foundation for a new penitentiary system; and the Community Liaison Committee, charged with promoting the incorporation of all organizations or institutions interested in the care of persons deprived of liberty, cooperating in the execution of planes for improving the quality of life within penitentiaries, in accordance with the policies issued by the governing body. The Superior Penitentiary Council has the power to create other committees to improve the operations and execution of the programs it has established. It also indicated that the Office of the Attorney General, in accordance with its functions, acting to represent that interest of society and the mission entrusted to it as an organ of the citizenry, seeks the greatest degree of well-being and the maximum possible exercise of civil rights of the entire population in custody, and for that purpose has the professional services of a qualified staff which, in its daily work, works tirelessly to guarantee the strict application of the Penitentiary Regime and the necessary protection of human rights; this staff consists of attorneys, auxiliary and principal inspectors, and personal administrative personnel making up the various government offices, assist in performing the functions entrusted to this institution, according to the functions conferred by the Constitution of the Bolivarian Republic of Venezuela and the Organic Law of the Office of the Attorney General. In carrying out the mission assigned to us in the governing legal texts, we rely upon 26 inspectors’ offices, which hear and participate in the judgment execution phase and in the supervision of the applicable penitentiary regime. However, given the importance of this subject, it was ordered that ten (10) new inspectors’ offices at the national level with competence regarding the penitentiary regime be established[516], through which it is intended to consolidate the applicable regulations governing these matters.

 

433.          It also reported that “the Ministry of the Interior and Justice, in Decree Nº 6,398, dated September 9, 2008, published in the Official Gazette of the Bolivarian Republic of Venezuela, No. 39,012, dated September 9, 2008, appointed the National Commission on Pardons, comprising the Vice Minister of Interior Policy, the Director General of Inmate Custody and Rehabilitation, Director of Essential Rights of the Office of the Attorney General, the Director General of Human Rights of the Ministry of the Interior, and the Director General of the Legal Advisory Office. This Commission is charged mainly with presenting a proposal to the President of the Republic from the citizens deprived of liberty in the country’s various penitentiaries establishment and eligible for presidential pardon, the evaluation parameters being humanitarian measures, the gravity of the offense, having served half of the sentence imposed, good conduct while in prison, favorable evaluation of the inmate by the multidisciplinary technical team, no repeat offense […]

 

434.          It stated that in the month of July 2008, the president of the Republic had issued 39 pardons, for a total of 71 pardons in the month of December 2008. The People’s Defender’s Office, as the body responsible for monitoring, promoting, and defending human rights, has adopted the mission of enabling communities to participate actively and organize for the full realization of human rights; in that connection it has implemented a program entitled “Making the Human Rights Community - Sub-program “Penitentiary Community.” […]

 

435.          Finally, it maintained that, “comparing the population and the acts of violence, we find that in 2008 the prison population grew by 12% and, as a result of the measures taken, violent acts were reduced by 314, or 25.65%, compared to the previous year. Observing the various acts of violence, and the differential between years in the 1999-2008 period, there is a significant drop, of 27.45% in inmates injured and 21.47% in inmate deaths, compared to 2007”. [517]

 

436.          The Commission hopes the Venezuelan State will continue to address the problem of persons deprived of liberty so as to ensure that further incidents resulting in the death of or personal harm to inmates do not occur. The Commission believes that beyond providing the minimum conditions compatible with their dignity as human being, deaths and serious harm to personal well-being of persons deprived of liberty are violations of fundamental rights that cannot be curtailed under any circumstances.  Therefore, the Commission would echo the Court’s finding to the effect that the State has a special responsibility to ensure that persons deprived of liberty have the conditions necessary to live with dignity and to enable them to enjoy those rights that may not be restricted under any circumstances or those whose restriction is not a necessary consequence of their deprivation of liberty and is, therefore, impermissible.  Otherwise, deprivation of liberty would effectively strip the inmate of all his rights, which is unacceptable.[518]

 

XI.        CONCLUSIONS AND RECOMMENDATIONS

 

437.          The Commission is still concerned by the State’s failure to set dates for a Commission visit to Venezuela which has made it difficult for the Commission to discharge the mandate that the States entrusted to it within the framework of the authorities and functions it is given both by the American Convention and its Statutes, especially those of promoting the observance and defense of human rights by firsthand, in situ knowledge of the various problems and programs related to human rights in Venezuela.  Since it’s in loco visit to Venezuela in 2002, the Commission has requested in various opportunities the consent of the State to allow the IACHR to visit the country; however, there have been no concrete responses with set dates from the Venezuelan State. Not having been afforded the opportunity to visit the country, it will be that much more difficult for the Commission to develop a close dialogue with State authorities and Venezuelan society.  According to Articles 56 and 58 of its Rules of Procedure, the Commission will prepare a report on the Situation of Human Rights in Venezuela, and hopes to be able to rely on input from the State and from the various sectors of Venezuelan civil society and international institutions.

 

438.          The following are among the principal concerns that the Commission believes affect the enjoyment of human rights by all inhabitants of Venezuela in general:  the hostile environment toward political dissent; accusations against and harassment of nongovernmental organizations and human rights defenders; the questions surrounding the transparency of the administration of justice; the existence of direct and indirect obstacles to freedom of expression, the existence of laws, which in their application, might adversely affect the respect of rights and the terrible conditions that those incarcerated must endure.  It is especially troubled by the uptick in barometers of citizen insecurity, and by the fact that the State is not taking the steps necessary to investigate the causes and to stop them from continuing.  Finally, various sectors of civil society have complained about a lack of information and access to official sources, which the Commission discovered for itself in its own efforts to find official statistics on various issues addressed in this chapter.  The Commission would urge the State to take the points raised in this chapter into account in order to correct the situations described here.

 

439.          The Inter-American Commission is therefore recommending to the Venezuelan State:

 

1.            That it adopt the measures necessary to guarantee full access to official sources of information.

 

2.            That it take every measure possible to refrain from making statements that stigmatize human rights defenders or that suggest that human rights organizations are acting improperly or illegally, merely because they perform their work of promoting and protecting human rights.

 

3.            That it take the measures necessary to promote tolerance and pluralism in the exercise of political rights, and refrain from encouraging any form of retaliation for ideological dissent.

 

4.            That it take the measures necessary to ensure that all its judges enjoy the guarantees of independence and impartiality; specifically that it strictly comply with the provisions regulating elevation to the bench and promotion of judges within the judicial branch, and that clear regulations be established regarding the categories of judges and the guarantees of tenure that attend each category.

 

5.            That it implement appropriate mechanisms to prevent violations of the rights to life and to humane treatment and to guarantee citizen security for Venezuela’s inhabitants.  Such measures must be aimed at achieving due diligence in investigations and at the imposition of the corresponding sanctions on the perpetrators.

 

6.            That it adopt the measures necessary to ensure the right to life and the right to humane treatment to persons deprived of liberty, and to specifically adopt those measures necessary to: a) confiscate weapons and illicit substances in the inmates’ possession; b) separate inmates standing trial from those already convicted, and c) adjust the conditions of incarceration to conform to international standards on the subject.

 

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[471] Bolivarian Government of Venezuela.  26 leyes habilitantes publicadas en Gaceta Oficial Nro. 38.984  [26 laws decreed under the “Enabling Act” published in Official Gazette No. 38,984]. Available at: http://www.gobiernoenlinea.ve/noticias-view/ver_detalles.pag?idNoticia=81703. Site visited on November 5, 2008.

[472] Press release of Foro por la Vida Available at  http://www.ucab.edu.ve/tl_files/CDH/recursos/decretos_leyes.pdf. The communique was signed by the following Venezuelan NGOs.: Observatorio Venezolano de Prisiones; Cofavic; Provea; Secorve; Fundación de Derechos Humanos de Anzoátegui; Vicaria de Derechos Humanos de Caracas; Servicio de Jesuita de Refugiado; Espacio Publico; Caritas Los Teques; Caritas Venezuela; Centro de Derechos Humanos, Universidad Católica Andrés Bello.

[473] Article 136. “When a public organ or entity, acting in its regulatory role, proposes the adoption of a law, regulation or other legal provision, it shall forward the preliminary draft text to the organized communities and non-state public organizations listed in the register named in the preceding article for their perusal and opinion.  The memorandum transmitting the preliminary draft shall specify the period of time within which observations must be received in writing; that time period will not begin until 10 working days after the delivery of the corresponding preliminary draft.  At the same time, the corresponding public organ or entity shall announce in the national press that the consultation process is underway and shall indicate its duration.  It shall also enter this announcement on its internet page, where it will explain the document(s) under discussion.  During the consultation process, any person may submit his or her written observations and comments on the corresponding preliminary draft, and need not be listed in the register to which the preceding article refers.  Once the observations have been received, the public organ or entity shall set a date on which its staff specialists will meet with the organized communities and non-state public organizations to exchange opinions, ask questions, make observations and propose that the preliminary draft be adopted, rejected or amended or consider a new preliminary draft. The outcome of the consultation process shall not be binding.

[474] Article 137. “A public organ or entity may not approve laws that are within its competence or forward draft regulations to any other body unless the draft has first been referred for consultation, pursuant to the preceding article.  Provisions that are approved by a public organ or entity or proposed by it to some other body shall be null and void absent the consultation process prescribed in this section.  When an emergency arises, when dictated by the State’s obligation vis à vis the public’s safety, security and protection, the President of the Republic, governor or mayor, as the case may be, may authorize passage of laws or regulations without prior consultation.  Once the emergency has passed, the laws or provisions so approved shall be immediately forwarded to the organized communities and non-state public organizations for consultation in accordance with the procedure prescribed in the preceding article; the outcome of the consultation shall be considered by the body that approved the provision, which may ratify it, amend it or eliminate it altogether.” 

[475] Organic Law on Public Administration (2001). Available at: http://www.mindefensa.gov.ve/sigecof/leyes_reglamentos/LEY%20ORG%20ADMIN%20PUBLICA.pdf. Site visited on November 5, 2008.

[476] Article 206. “Through the State Legislative Council, the National Assembly will consult with the states when legislation in matters relating to them is being considered. The law will establish the mechanisms through which the Legislative Council will consult the citizenry and other institutions on such matters.”

[477] Press Communiqué of Foro por la Vida.  Available at http://www.ucab.edu.ve/tl_files/CDH/recursos/decretos_leyes.pdf.

[478] Article 140. “A public organ or entity may not approve laws that are within its competence or forward draft regulations to any other body unless the draft has first been referred for consultation, pursuant to the preceding article.  Provisions that are approved by a public organ or entity or proposed by it to some other body shall be null and void absent the consultation process prescribed in this section.  When an emergency arises, when dictated by the State’s obligation vis à vis the public’s safety, security and protection, or in cases of the special legislation provided for in the Constitution of the Bolivarian Republic of Venezuela, the President of the Republic, governor or mayor, as the case may be, may authorize passage of laws or regulations without prior consultation.  In such a circumstance, the laws or provisions so approved shall be immediately forwarded to the organized communities and non-state public organizations for consultation, following the same procedure; the outcome of the consultation shall be considered by the body that approved the provision, which may ratify it, amend it, or eliminate it altogether.

[479] Organic Law on Public Administration (2008). Available at: http://www.gobiernoenlinea.ve/noticias-view/shareFile/LeyOrganicaAPN.pdf. Site visited on November 5, 2008.

[480] Document presented at the Commission’s 133rd Session, Institutionality and Guarantees of Human Rights:  the Situation in Venezuela.

[481] Article 1 of the Organic Law of the Bolivarian National Armed Forces (2008). Available at: http://www.radiomundial.com.ve/yvke/noticia.php?t=8977. Site visited on November 13, 2008.

[482] Article 43 of the Organic Law of the Bolivarian National Armed Forces (2008). Available at: http://www.radiomundial.com.ve/yvke/noticia.php?t=8977. Site visited on November 13, 2008.

[483] Article 44 of the Organic Law of the Bolivarian National Armed Forces (2008). Available at: http://www.radiomundial.com.ve/yvke/noticia.php?t=8977. Site visited on November 13, 2008.

[484] Principles of the Enabling Laws, p. 22. Available at: http://www.gobiernoenlinea.ve/noticias-view/shareFile/DECALOGOLEYES.pdf. Site visited on November 6, 2008.

[485] Principles of the Enabling Laws, pp. 22-23. Available at: http://www.gobiernoenlinea.ve/noticias-view/shareFile/DECALOGOLEYES.pdf. Site visited on November 6, 2008.

[486] Article in Tal Cual Digital.com. Le Darán Respuesta [He’ll Get an Answer]. Article of September 23, 2008. Available at: http://www.talcualdigital.com/Avances/Viewer.aspx?id=12637&orig=RSS&secID=28

[487] According to the 2008 Annual Report of the Programa Venezolano de Educación-Acción en Derechos Humanos [Venezuelan Program of Education-Action in Human Rights] (PROVEA) 19 labor leaders have been murdered in 2008.  According to PROVEA, all the victims were killed in connection with labor disputes over the right to work.  The report also states that in 2008 no union leaders were killed by agents of the State.  In its Report on the Situation of Human Rights Defenders in Venezuela, the Caracas Vicariate for Human Rights reports that 19 union leaders died between June 2007 and May 2008 

[488] According to a 2008 newspaper report, at least 8 assassinations of union leaders have been reported, namely: Jesús Rafael Gallardo Bermúdez; who was serving as minutes and correspondence secretary for the Bolívar State Construction Workers Union (SINATRACOM-Bolívar), see http://www.derechos.org.ve/actualidad/coyuntura/2008/coyuntura_196.html; Alexander Javier Acagua, a member of the Bolívar State Construction Industry Workers Union (Situc-Bolívar), see at  http://www.nuevaprensa.com.ve; Rafael Celestino Martínez López; a member of the Bolívar State Union of Construction Workers (Sutra-Bolívar), available at http://www.eldiariodeguayana.com.ve/content/view/35108/64/; Joel Antonio Devera Flores, who was serving as a delegate of the Bolívar State Union of Construction Workers (Sutra-Bolívar), see http://www.derechos.org.ve/actualidad/coyuntura/2008/coyuntura_200.html;  David Mendoza, available at http://nuevaprensa.com.ve/content/view/9123/2/; Iván José Jiménez and Cruz Elías Lazarde, see http://nuevaprensa.com.ve/content/view/9123/2/; Régulo Castillo, who was a member of the construction workers union called the Muralla Roja, see at http://caracas.eluniversal.com/2008/09/23/sucgc_art_matan-a-sindicalista_1058627.shtml and http://nuevaprensa.com.ve/content/view/7272/34/; Eumir Pacheco, who was serving as Secretary of Labor and Job Demands of the Unión de Trabajadores Revolucionarios, Metalmecánicos, Similares y Conexos [Revolutionary Metalworking and Related Industries Organized Labor Union]  (Usitraremetalme), see <http://nuevaprensa.com.ve/content/view/9123/2/>

[489] Instituto Venezolano de Análisis de Datos. Indicadores de Gestión y Coyuntura Política. Del 27 de agosto al 11 de septiembre de 2008. Tamaño muestral: 1200 entrevistas. Respuesta a la pregunta: ¿Cuáles son los tres principales problemas que confronta hoy en día el país? [Performance Indicators and Political Situation.  August 27 to September 11, 2008.  Sample size:  1200 interviews.  Answer to the question:  What are the three main problems facing the country today?] The study can be downloaded at: http://www.vtv.gob.ve/detalle.php?id=4446&s=1. Site visited on November 6, 2008.

[490] Information from the Attorney General, reported in Amnesty International Report 2008. The State of the World’s Human Rights. Available at: http://thereport.amnesty.org/esl/regions/americas/venezuela. Site visited on November 6, 2008.

[491] Information from the Attorney General, reported in Amnesty International Report 2008. The State of the World’s Human Rights. Available at: http://thereport.amnesty.org/esl/regions/americas/venezuela. Site visited on November 6, 2008.

[492] Information received from the Government of the Bolivarian Republic of Venezuela at the Commission’s 133rd session, October 28, 2008, Citizen Security and Violence in Venezuela.

[493] Information received from the Government of the Bolivarian Republic of Venezuela at the Commission’s 133rd period of sessions, October 28, 2008, Citizen Security and Violence in Venezuela.

[494] Information received from the Government of the Bolivarian Republic of Venezuela at the Commission’s 133rd period of sessions, October 28, 2008, Citizen Security and Violence in Venezuela.

[495] Observatorio Venezolano de Violencia. 2007 Report of Venezuelan Observatory on Violence. Roberto Briceño-León, Chapter I, Sociological Framework for Urban Violence, p. 62. Information received from petitioners during the Commission’s 133rd period of sessions, October 28, 2008.

[496] Venezuela.  En 2008 ocurrieron 9.653 homicidios [9,653 murders in 2008], Available at:http://noticieropolisred.blogspot.com/2008/10/venezuela-en-2008-ocurrieron-9653.html.

[497] ”These figures do not include other violent deaths that are often classified as homicide:  deaths from gunfire under investigation and people killed resisting authorities.” Venezuelan Observatory on Violence.  Report of the Venezuelan Observatory on Violence 2007. Luis Cedeño Villalba, Chapter IV Findings of Case Studies, p. 198.  Information received from petitioners during the 133rd period of sessions of the IACHR, October 28, 2008.

[498] Article in El Universal.  En Carabobo homicidios suben 15% sin que haya acabado 2008 [Murder up 15% thus far in 2008]. Article that appeared on November 10, 2008. Available at: http://caracas.eluniversal.com/2008/11/10/sucgc_art_en-carabobo-homicidi_1137374.shtml.

[499] Article in El Universal.  En Carabobo homicidios suben 15% sin que haya acabado 2008 [Murder up 15% thus far in 2008]. Article that appeared on November 10, 2008. Available at: http://caracas.eluniversal.com/2008/11/10/sucgc_art_en-carabobo-homicidi_1137374.shtml.

[500] Observatorio Venezolano de Violencia. 2007 Report of the Venezuelan Observatory on Violence. Luis Cedeño Villalba, Chapter IV Results of the Case Studies, p.198. Information received from petitioners during the Commission’s 133rd period of sessions, October 28, 2008.  Final Sample of the Caracas Survey: 2730 questionnaires.

[501] IACHR. Annual Report 2007. Chapter IV. Venezuela, paragraph 293.

[502] National Commission for Police Reform.  La Policía Venezolana, Desarrollo Institucional y Perspectivas de Reforma al Inicio del Tercer Milenio [The Venezuelan Police, Institutional Development and Prospects for Reform at the Start of the Third Millennium].  Volume II. Luis Gerardo Galbaldón and Andrés Antillano, editors, Caracas, 2007, p. 252.

[503] Nota de Versión Final: La Verdad del Panorama Nacional, Regional y Universal. Ley de Policía Nacional: ¿una estafa? [Final Version Comment: The Truth about the National, Regional and Global Picture.  National Police Law:  Is It a Fraud?], article dated April 17, 2008. Available at: http://www.versionfinal.com.ve/wp/2008/04/17/ley-de-polica-nacional-una-estafa/. See also:  Article 22 of the Organic Law on the Police Service and National Police Corps.

[504] Information received from petitioners during the Commission’s 133rd period of sessions, October 28, 2008, Citizen Security and Violence in Venezuela.

[505] IACHR. Annual Report 2007. Chapter IV. Venezuela, paragraph 301.

[506] Article at the web site of the Ministry of the People’s Power for Interior Affairs and Justice. Ministro Tareck El Aissami instaló Comisión del Sistema Policial [Minister Tareck El Aissami installed Police System Commission]. November 10, 2008. Available at: http://www.mpprij.gob.ve/spip.php?article5921. Site visited on November 11, 2008.

[507] Article 16.- “Organs that assist and support intelligence and counterintelligence activities are natural and juridical persons under public and private law, both national and foreign, as well as organs and entities of the national, state and municipal public administrations, social networks, grassroots organizations and organized communities, when organs with specialized jurisdiction solicit their cooperation to gather information or obtain technical support. Persons who fail to fulfill the obligations established under this article shall be liable under the Organic Law on the Security of the Nation and other applicable laws and regulations, inasmuch as such conduct is an attack upon the Nation’s security, defense and integral development.” Available at: http://media.noticias24.com/0806/LSNIC.pdf. Site visited on November 7, 2008.

[508] Article 20.- “All information, documents and objects associated with the security, defense and integral development of the Nation and obtained in the course of operations and investigations carried out by organs with special jurisdiction, shall be examined in criminal proceedings classified as necessary and urgent, which shall not be subject to any other temporal or material conditions that the law establishes.   When the proceedings concern facts that have already materialized or cannot be reproduced, or there is well founded fear that the information, documents or objects will become outdated or disappear, or when the commission of a crime is imminent, those proceedings shall be conducted by the organs with special jurisdiction, and no court order or prosecutor shall be required.  The justification for this exceptional procedure must be spelled in a statement of reasons indicating the presence of any of the preconditions spelled out in this article and certifying that the operational and investigative activities are carried out to safeguard the security and defense of the Nation.  The results of the proceedings in question shall constitute technical evidence and shall be freely introduced in the pertinent court case.  The right of self-defense in all its forms, and specifically control of the evidence and the issue being contested, shall be observed.” Available at: http://media.noticias24.com/0806/LSNIC.pdf. Site visited on November 7, 2008.

[509] “The President of the Bolivarian Republic of Venezuela, Hugo Chávez Frías, announced this Tuesday that the National Intelligence and Counterintelligence Law was being struck down.  ‘I recognize that mistakes were made in this law. Accordingly, this law is repealed so that another can take its place’ […] Chávez said that Article 16 'was the worst.  It is a disaster! I guarantee you that so long as I’m here, an article like this can never be enforced.  Hence my decision to repeal the entire law and let the National Assembly draft a law that organizes the various intelligence services and the relations among them.’ The President also complained about Article 20, which concerns the legality of the evidence. ‘This article is unacceptable; it does not suit our purposes and is contrary to the Constitution.  I’m certain of what I say.’ That article was the target of heavy criticism because it allowed proceedings without a court order ‘when national security was at stake’, and allowed evidence to be collected during those proceedings, which would then be introduced into legal cases.” Ministry of the People’s Power for Communications and Information.  Article in YVKE.  Presidente Chávez anunció la derogación de la Ley de Inteligencia y Contrainteligencia [President Chávez announced repeal of the National Intelligence and Counterintelligence Law].  June 10, 2008. Available at: http://www.radiomundial.com.ve/yvke/noticia.php?6592.

[510] Ministry of the People’s Power for Interior Affairs and Justice, Available at  http://www.mpprij.gob.ve/spip.php?article5923.

[511] Information received at a hearing held during the Commission’s 133rd period of sessions, October 28, 2008, Situation of Institutionality and Guarantees of Human Rights in Venezuela.

[512] See Protestas en cárceles venezolanas [Protests in Venezuelan prisons]. Available at bbcmundo.com: http://news.bbc.co.uk/hi/spanish/latin_america/newsid_7668000/7668642.stm.

[513] Communication, Ref: CDH-S/640, March 27, 2008.  See press article, March 11, 2008, containing an account of the self-sequestration at La Pica Prison starting on March 2, 2008; Communication Ref: CDH-S/792, April 22, 2008.

[514] Constitutional Chamber of the Supreme Court.  Ruling admitting the petition filed to protect the collective rights of those on trial and those serving sentences.  April 21, 2008.

[515] The State indicated that, under the decree creating it, the Superior Penitentiary Council would have the following functions:

a) To monitor respect for the right to life and physical well-being of people deprived of liberty, as fundamental values recognized by the Constitution and in the international treaties, conventions, and agreements signed and ratified by the Republic.

b) Issuing policies to guarantee compliance with all security and custody protocols necessary for providing an appropriate regime of treatment and care to persons deprived of liberty, seeking to respect the human dignity of both inmates and their family members.

c) Designing and executing policies to guarantee comprehensive care to the penitentiary population in the areas of education, health, culture, sports, work, technical and vocational training, and nutrition as part of treatment programs ensuring observance of the principle of progressive protection of human rights.

d) Guaranteeing the implementation of judicial policies on the basis of the principles of a swift and efficient trial, thus guaranteeing effective judicial protection.

e) Proposing, to the competent bodies, draft legislation for governing penitentiary matters, as well as any legal measure necessary for the transformation of the Venezuelan penitentiary system.

f) Fostering participation by family members, community councils, nongovernmental organizations, and any other party whose work bears upon penitentiary matters.

[516] The State indicated that the inspectors’ offices at the national level with competence regarding the penitentiary regime would have the following duties and functions as well:

Article 3. “3.1 See to the adequate application of the penitentiary regime, enforcing observance of the provisions contained in the Constitution of the Bolivarian Republic of Venezuela, in the Organic Code of Criminal Procedure, in the Penitentiary Regime law, and in international instruments like the United Nations Standard Minimum Rules for the Treatment of Prisoners and other laws enshrining rights applicable to persons placed within the penitentiary system.

3.2 Monitor and inspect police stations, jails, military detention centers, work camps, prisons and penitentiaries, youth internment centers, and other internment establishments, to guarantee respect for the human and constitutional rights of all inmates.

3.3. Monitor and take appropriate action to ensure proper conditions for inmates, in particular everything pertaining to their classification and grouping for penitentiary labor; education; environmental health; personal cleanliness; nutrition; the civility of the establishments; comprehensive medical care; and respect for human rights in the imposition of disciplinary measures, etc.

3.4. Take appropriate administrative and legal actions with the competent authorities to preserve the exercise of human rights when these are found to have been impaired or violated.

3.5. Urge executing tribunals to guarantee the protection of every inmate in the enjoyment and exercise of individual, collective, and general rights mentioned in this resolution.”

[…]

[517] See; IACHR, Annual Report 2007. OEA/Ser.L/V/II.130, Doc. 22 rev. 1, December 29, 2007, para. 310.

[518] I/A Court H.R., Case of the Juvenile Reeducation Institute. Judgment of September 2, 2004. Series C N° 112, para. 153.