CHAPTER I

 

THE ADMINISTRATION OF JUSTICE AND HUMAN RIGHTS

 

            A.         Introduction

 

150.     The observance of rights and freedoms in a democracy requires a legal and institutional order in which the laws prevail over the will of the rulers, and in which there is judicial review of the constitutionality and legality of the acts of public power, i.e., it presupposes respect for the rule of law.[82]

 

151.     Judiciaries are established to ensure compliance with laws; they are clearly the fundamental organs for protecting human rights. In the inter-American human rights system, designed for a hemisphere of democratic countries, the adequate operation of the judiciary is essential for preventing the abuse of power by another State organ, and, consequently, for protecting human rights. Thus, the fundamental corollary of human rights is the possibility of access to judicial organs to see that rights are upheld.

 

152.     This section focuses on certain issues that impact the administration of justice in Venezuela. In light of the autonomy and independence that the judiciary should enjoy, the Commission will analyze the temporary status of most of Venezuela’s judges and the composition of several institutions. It will also analyze the problem of impunity in Venezuela as a determining factor behind the public’s dwindling trust in its institutions and as a motive for increasing crime and violence. Finally, the IACHR will analyze a number of issues related to the inter-American system and the administration of justice in the country.

 

B.         The Right to an Independent and Impartial Judiciary

 

153.     To enable the judicial branch of government to serve as an effective body for overseeing, guaranteeing, and protecting human rights, it is not enough for it to formally exist; the judiciary must also be independent and impartial.

 

154.     Thus, Article 8 of the American Convention provides that:

 

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of (...) any other nature.

 

155.     In order to define the meaning and scope of the twin concepts of independence and impartiality, the United Nations (UN) has drawn up a series of “basic principles” on the independence of the judiciary. Of these, the Commission believes the following to be of particular importance:

 

2.         The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law (...)

 

10.       Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. (...)

 

11.       The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.

 

12.       Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the conclusion of their term of office, where such exists.[83]

 

156.     The Commission has received a series of communications relating to the Supreme Court of Justice’s exercise of its jurisdictional powers without due independence and impartiality, alleging that on different occasions, it has adopted decisions intended to favor the interests of the executive branch. Specific mention was made of its decisions regarding the Special Law on the Ratification or Designation of Officials of the Citizens’ Branch and the Magistrates of the Supreme Court of Justice, and its decision on the duration of the presidential mandate. In this regard, the Commission believes that it cannot determine whether the Supreme Court of Justice did in fact act without independence and impartiality. This is because, first of all, some rulings that are contrary to the presumed interests of the executive do exist, such as the ruling that held there were no grounds for prosecuting the officers suspected of being behind the coup d’état; secondly, such a determination would require not only a statistical review of the jurisprudence, but also an analysis of the judgments, with criteria that would be very difficult to define juridically and that could given rise to ambiguous interpretations.

 

157.     In accordance with the foregoing considerations, this section will address two issues of great importance with respect to the independence of the judiciary: the temporary status of judges, and the failure to abide by the constitutional provisions that uphold impartiality and independence in the appointment of judges. This final section will also include details regarding the composition of other institutions, which serves as a factor in weakening their independence and autonomy to the detriment of the rule of law.

 

158.     Prior to this analysis, the Commission would like to note its concern regarding certain provisions set forth in the draft Organic Law of the Supreme Court of Justice; these, were they to become positive law, could have a negative impact on the independence of the Venezuelan judiciary. These provisions entail several innovations: the increase in the number of Supreme Court justices; the granting of powers to the National Assembly whereby it can increase or decrease, by an absolute majority vote, the number of judges in the different chambers of the Supreme Court; and the empowerment of the Assembly to decree, by a simple majority vote, the revocation of Supreme Court justices’ appointments.

 

1.         Provisional Judges

 

159.     “Provisional” judges are those who do not enjoy security of tenure in their positions and can be freely removed or suspended; this implies that their actions are subject to conditions, and that they cannot feel legally protected from undue interference or pressure from other parts of judiciary or from external sources.

 

160.     The Commission has previously ruled on this matter,[84] stating that having a high percentage of provisional judges has a serious detrimental impact on citizens’ right to proper justice and on the judges’ right to stability in their positions as a guarantee of judicial independence and autonomy.

 

161.     Consequently, as indicated above, one issue with an impact on the autonomy and independence of the judiciary is the provisional nature of judges within the Venezuelan legal system. Information from different sources indicates that at present, more than 80% of Venezuela’s judges are “provisional.”[85] The Commission has also received information claiming that the appointments of certain judges – specifically, those who have issued rulings unfavorable to government interests – have been revoked. Reference was made to the cases of Doménico Di Gregorio, David Manrique, and Mercedes Chocrón.[86] The first of these judges had refused to admit the prosecution service’s charges against officials of the Metropolitan Police; the second ordered the release of Gen. Carlos Alfonso Martínez, a dissident army officer; and the third had ordered a search at that same general’s home.[87] In addition, the Commission was told about a search carried out by members of the DISIP on September 23, 2003, at the premises of the First Administrative Court. The search lasted more than six hours and, subsequently, the Judicial Commission of the Supreme Court issued an order for its dissolution and replacement by two new bodes: the First and Second Administrative Courts. Although this decision was based on “the significant increase” in the need for administrative justice, “the result of the more than 20 years that have passed since the Court was established,” the measure was questioned because of suspicions that it arose from the Court’s having issued a number of rulings that went against government interests.[88] The IACHR was also told about the dismissal of the president and two magistrates attached to the former First Administrative Court, Juan Carlos Apitz, Perkins Rocha, and Ana María Ruggieri.

 

162.     This situation has also been a source of concern for the Human Rights Committee of the International Covenant on Civil and Political Rights. On April 26, 2001, the Committee stated it was particularly worried about the situation of the judiciary in Venezuela, which is still undergoing reorganization. It added that it was also concerned about the lack of information on the consequences this process has had and the failure to set a date for its conclusion.

 

163.     The Commission is not unaware that the problem of provisional status for judges dates back many years prior to the current administration. However, the IACHR notes that these problems have deepened and expanded since the present government embarked on a process of judicial restructuring.

 

164.     The process of restructuring the judicial branch began on August 12, 1999, when the National Constitutional Assembly issued a decree for the reorganization of all government agencies.[89] Later, on August 19, the Constitutional Assembly declared the judiciary to be in a state of emergency and reorganization; it created a body styled the Judicial Emergency Commission, to which it gave a series of powers that previously belonged to the Judicature Council.[90] This Commission’s mandate was to be for a limited time. Under the decree that created it, it was to cease operations once the new Constitution was enacted; however, it continued to operate for a year after its adoption. Subsequently, in the decree on “urgent precautionary measures to protect the judicial system,”[91] the Commission was empowered to suspend the duties of any judge facing seven or more complaints or any type of criminal investigation and, in a later decree, it was authorized to regulate the evaluation plan for judges and to rule to on their continued employment or removal and on the competitive selection system.

 

165.     In December 1999, following the adoption of the new Constitution, the National Constitutional Assembly decreed the “Transitional Government Regime.”[92] The transitional regime established rules for the restructuring of the government in order to achieve full implementation of the new Constitution. This process entailed the implementation of the Transitory Provisions contained in the Constitution, which were to remain in force until the institutions described in the new Constitution could be organized and brought on line.

 

166.     Although all constitutional drafting processes involve such transitional regimes, the IACHR notes with concern that Venezuela’s regime went beyond the normal and due temporal limits and included provisions with a legislative content that went beyond the scope of a transitory regime. Indeed, at the time of writing this report, the regime has exceeded its transitory nature, after remaining in effect for more than three years and establishing a set of rules that regulate several aspects of Venezuela’s institutional life.

 

167.     Under the terms of the transitional regime, a “Commission for Restructuring the Judiciary” was established. This body was to perform functions previously carried out by the Judicial Emergency Commission, the principal task of which was to straighten out the situation of tenured and provisional judges by organizing a competitive examination for the awarding of positions. Thus, the Commission for the Functioning and Restructuring of the Judicial System was ordered to direct, carry out, and supervise all activities related to evaluations of judges and judicial officials and to the competitive examinations for entry into and promotion within the judiciary; this was to be the case until such time as the Supreme Court of Justice could organize the Executive Directorate of the Magistrature, the body provided for in the Constitution for the governance and administration of the judiciary.[93]

 

168.     A number of questions have been asked regarding the actions of the Judicial Emergency Commission and, later, of the Commission for the Restructuring and Functioning of the Judicial System. Essentially, the criticisms focus on whether or not guarantees of due process were maintained in the appointment and dismissal of magistrates. Specifically, the claims maintain that on several occasions, provisional judges were appointed even though they did not meet the requirements set for those positions; moreover, irrespective of the possible grounds for suspending or dismissing certain judges, the allegations claim that the Commissions acted in haste and were guided by inadequate criteria – such as the net worth of judges or the number of complaints they had accumulated – in deciding whether they should be removed or suspended.[94]

169.     With respect to the appointments, the mechanism set forth in the Constitution – that is, competitive public examinations – was not followed. Article 255 of the Constitution of Venezuela states that:

 

Appointment to a judicial position and the promotion of judges shall be carried out by means of public competitions, to ensure the capability and excellence of the participants and those selected by the juries of the judicial circuits, in such manner and on such terms as may be established by law. The appointment and swearing in of judges shall be the responsibility of the Supreme Court of Justice. Citizen participation in the process of selecting and designating judges shall be guaranteed by law. Judges may only be removed or suspended from office through the procedures expressly provided for by law. Measures shall be taken by law to promote the professionalization of judges, and the universities shall cooperate to this end by organizing their law schools’ curricula toward the corresponding legal specializations. Judges are personally liable, on such terms as may be determined by law, for errors, delays, and unjustified omissions, for substantial failures to observe the rules of procedure, for denial of justice, for partiality and for the criminal offenses of bribery and prevarication in office.

 

170.     In this connection, the IACHR has received information indicating that the Functioning and Restructuring Commission appointed 995 provisional judges by means of a credentials-based process, which basically means that they were selected and appointed without undergoing the competitive exams. This procedure failed to abide by the terms of the new Constitution as set forth in the article transcribed above.

 

171.     It was not until November 2000 that the competitive examinations began to be held, beginning in the states of Vargas and Miranda. However, a March 2001 report by the Network of Juridical Overseers of Venezuela indicates that the failure of some jury members to attend, together with the discretional decisions taken in applying the evaluation guidelines, undermined the transparency of the competitions.

 

172.     Faced with this situation, on August 14, 2001, the Supreme Court of Justice declared the competitions to be in a state of emergency in light of the extremely high levels of provisional appointments then found within the judiciary.

 

173.     At present, the judicial branch is under the supervision of the Executive Directorate of the Magistrature (DEM). This body, established in August 2000, took over the tasks of judicial administration from the earlier Judicature Council and the Commission for Restructuring the Judiciary. One of its main achievements was to conclude the criticized process of judicial appointments described above. However, it was also the target of considerable criticism. Firstly, questions have been asked about its composition, in that it is made up of officials who were appointed without any procedures to ensure their impartiality. In addition, the Evaluation and Competition Commission of the Executive Directorate of the Magistrature, a body comprising six magistrates and charged with running the competitive exams and overseeing the reform of the judiciary, has been criticized in that both the competitions and the appointments and dismissals of judges that it has carried out do not observe the precepts of the Venezuelan Constitution and the American Convention for guaranteeing due process. While the competitive examinations have to be repeated because of the high failure rate, no information has been released about the mechanisms followed by the Commission’s magistrates in assessing credentials and selecting the lawyers who are to serve as provisional judges. It has also been claimed that those judges who have issued judgments contrary to the interests of the government have had their appointments revoked, without any explanation being provided.

 

174.     The Commission has to date been informed that only 250 judges have been appointed through competitive professional examinations as provided for in the Constitution. Of a total of 1,772 judges in Venezuela, the Supreme Court of Justice reports that only 183 are tenured, 1,331 are provisional, and 258 are temporary. This means that 84% of magistrates are still provisional or temporary and thus lack any stability in their appointments.[95]

 

175.     The Commission also believes that the legislative delay in issuing the legal instruments necessary to resolve their provisional status has worsened the situation. This legislative delay applies both to the Judiciary Law and to the Supreme Court Law; both laws are waiting to be amended in order to bring them into line with the Constitution. The Commission notes that several years have gone by since the new Constitution was enacted and these laws have still not come into effect; that indicates a desire to govern in a provisional state and not in full compliance with the Constitution. The Commission therefore holds that the enactment of those laws is a priority in order to regulate the provisions and procedures necessary to appoint, dismiss, and discipline the magistrates of the judicial branch.

 

176.     The Commission has also been told that the plenary chamber of the Supreme Court ordered the suspension of all competitive exams for judges until the list of examiners responsible for evaluating the participants could be expanded. The President of the Supreme Court, Dr. Iván Rincón, reported that a process of invitations to serve as examiners would commence, with notice being sent to all the country’s public and private universities, bar associations, nongovernmental agencies, and professional, business, and trade-union organizations, inviting them to submit lists of candidates. Applicants must be lawyers with an established reputation, having graduated at least 10 years earlier and possessing postgraduate qualifications. Lists of candidates’ names are to be published in the press to enable the citizenry to lodge objections within a period of one week. The Commission was also told of a special plan that would optimize the competitive exams in order to improve the process in qualitative terms and increase in quantitative terms the productivity of the selection mechanism, thereby maximizing the results obtained with the resources available.

 

177.     The Commission values the Supreme Court’s interest in dedicating its efforts to improving the organization of these professional examinations; however, it notes its concern regarding their suspension, because that measure would indicate a further delay in the process of resolving the provisional status of Venezuela’s judges.

 

2.         The Composition of the Supreme Court of Justice and the Citizen’s Branch

 

178.     Another issue of concern to the Commission with respect to the guarantees of judicial independence and impartiality in Venezuela is the failure to follow the mechanisms set forth in the new Constitution for the election of its top authorities. The Commission believes that this failure to apply the procedures established by the Constitution as the guarantees of domestic law for ensuring the independence of the members of the judiciary means that the institutional legitimacy of that branch of government is undermined and the rule of law is weakened. Also in this section, the IACHR will analyze the controversial composition of the “citizens’ branch of government,” which was determined in a similar fashion and under the same legislation.

 

179.     The Constitution establishes mechanisms and guidelines for the appointment of the top authorities of the judiciary[96] and the citizens’ branch, involving a process of nominations that are to be submitted to the National Assembly with the participation of civil society. The new Constitution created a “Committee of Judicial Candidacies” and a “Committee for Evaluating Citizens’ Branch Candidacies,” both comprising different sectors of society. These provisions were aimed at restricting undue interference, ensuring greater independence and impartiality, and allowing voices from society to be heard in the election of those officials. The National Assembly, however, did not abide by the constitutionally approved mechanism for the appointment of the authorities of the judicial branch and the citizens’ branch (which covers the Office of the People’s Defender, the Public Prosecution Service, and the Office of the Comptroller General of the Republic.

 

180.     In particular, as regards the appointment of Supreme Court justices, Article 264 of the Constitution states that “the law shall determine the procedure for their election.” However, the Constitution also sets down a series of guidelines that should be incorporated into those rules. It states that: “candidates may be presented to the Committee of Judicial Candidacies at their own initiative or through organizations related to legal functions. The Committee, after hearing the community’s views, will carry out a preliminary selection for presentation to the citizens’ branch, which shall then conduct a second preselection for submission to the National Assembly, which shall then make the final selection.”

 

181.     For electing the members of the citizens’ branch, the Constitution provides two procedures: one involving direct actions by the Moral Council and civil society, and an electoral procedure governed by the National Assembly. The main procedure for the election of the members of the citizens’ branch entails convening the Committee for Citizens’ Branch Candidacies, which is to comprise representatives of different sectors of society, and which will then carry out a public consultation process in order to arrive at a three-name list of candidates for each available position. The three-name list is then to be submitted to the National Assembly for approval: with the favorable vote of two-thirds of its members, and within a period of no more than 30 days, the Assembly then elects the heads of the different agencies that make up the citizens’ branch. If the Assembly has not reached an agreement by the end of that timeframe, the electoral authorities are to submit the three-name list to a popular vote.

 

182.     Should the Candidacies Committee not be convened, within a period of 60 days following the end of the period for which they were elected, the National Assembly shall proceed to appoint, within no more than the following 30 days, the representatives of the agencies of the citizens’ branch.

 

183.     The current justices of the Supreme Court, the People’s Defender, the Prosecutor General of the Nation, and the Comptroller General of the Republic were not proposed by the committees in the fashion described in the Constitution. Specifically, the Commission was told that after the enactment of the Constitution, the authorities of the Supreme Court and the citizens’ branch were appointed, on a provisional basis, by the National Constitutional Assembly in a decree dated March 28, 2000, whereby the Transitional Government Regime was established. Later, on November 14 of that year, the National Assembly established the procedures for the definitive appointment of those officials in a piece of legislation styled the Special Law on the Ratification or Appointment of Officials of the Citizens’ Branch and Justices of the Supreme Court of Justice for the first Constitutional Period.

 

184.     These provisions rule that the National Assembly will appoint, by an absolute majority, a commission comprising 15 deputies, to serve as the candidacy assessment commission. One the Commission is established, its members are to select a list of 12 representatives from different sectors of society, for presentation to the National Assembly’s plenary so it can select those who are to be voting members of the Commission. The Commission is also to establish dialogue panels, on which the different sectors of society are to be represented. With respect to the procedure for selecting the authorities, the rules state that the candidacies received must be publicly processed and published, so members of society can submit comments on any candidate to the Evaluation Commission. Based on the results of this process, a list is drawn up and presented to the National Assembly for consideration. Then, within a period of no more than 30 calendar days, the Assembly selects the officers of the citizens’ branch and the justices of the Supreme Court.

 

185.     The Commission notes that under these rules, the Candidacy Evaluation Commission was responsible for the selection processes for both branches, whereas the Venezuelan Constitution states that the committee that is to assess the candidacies for the citizens’ branch is to be a separate body from the Committee of Judicial Candidacies. Neither did the composition of the Evaluation Commission – 15 deputies from the National Assembly – abide by the provisions of the Constitution, which states that the Candidacies Committee is to be made up from different sectors of society.

 

186.     The IACHR thus notes that the constitutional amendments introduced for the election of these authorities as guarantees of their independence and impartiality were not put into practice in this instance.

 

187.     The Commission also notes with concern that the Supreme Court of Justice itself justified the mechanism imposed by this law, by upholding the legality of the transition process. Specifically, the Supreme Court’s Constitutional Chamber, in response to an annulment motion on grounds of unconstitutionality lodged against the special law, dated November 20, 2000, offered the following comments:

 

To avoid an institutional vacuum while laws were being enacted, the National Constitutional Assembly decreed the Transitional Government Regime so that the institutions described in the 1999 Constitution, although not yet developed by law, could operate, thereby preventing the constitutional provisions from being void of effect. This transitional regime, supplemented with other provisions enacted by the constitutional assembly, is necessarily constitutional in nature, in that it serves as the Constitution in force while the country’s institutions are established; consequently, its current powers cannot be judged illegitimate or unconstitutional if they are based on the Transitional Government Regime (...) The Transitional Government Regime, decreed by the National Constitutional Assembly (...) stipulated, in Article 21, that the National Assembly would effect the definitive appointments or confirmations, in compliance with the Constitution, of the justices of the Supreme Court of Justice and their substitutes, since the justices appointed under Articles 19 and 20 of the Transitional Government Regime were to hold those positions on a provisional basis.

 

The mechanism of confirmation is not provided for in the current Constitution, but rather in the Transitional Government Regime; and it was taken into account only with relation to the magistrates of the government, with no provisions for the confirmation of those persons provisionally serving in the positions of the citizens’ branch (...) Consequently, the ratification regime must be special, directed at the performance of the magistrates who are to be confirmed and the quality of their arguments, since these are the parameters that indicate the quality of those who, as judges, have already imparted justice from the highest benches and who, as a result, have or have not earned confirmation.

 

To demand of those magistrates other requirements that neither the Constitution (which did not provide for the mechanism) nor any other law contemplates is to create discrimination against those who can be ratified with respect to those who have not served as magistrates and aspire to serve within the chambers of the Supreme Court of Justice.

 

188.     In connection with the above considerations, the Commission reiterates its concern regarding what has been called the “Transitional Regime,” which, in its opinion, undermines the full currency of the Constitution. The aforesaid Transitional Government Regime was enacted by the National Assembly as a mechanism intended to ensure the survival of provisions that would have been tacitly repealed under the new Constitution until such time as the corresponding legislation could be enacted. The implementation of this regime, as explained above, led to the failure to implement the mechanisms enshrined in the Constitution for the appointment of Supreme Court justices, the People’s Defender, the Prosecutor General, and Comptroller General of the Republic. This is all because the Supreme Court of Justice has maintained that the full currency of the Constitution requires the adoption of a set of specific laws that, to date, have not yet been enacted.

 

189.     In this regard, although all constitution-drafting processes involve such transitional regimes, the Commission believes that in the Venezuelan case the regime lasted for longer than is normal and appropriate; in addition, from the point of view of substantive law, it included legislative guidelines that went further than the constraints of a transitional regime. The IACHR notes with concern that as of the date of this report, the laws to regulate the constitutional bodies have not yet been enacted.

 

190.     The Commission repeats what it said at the conclusion of its on-site visit: the failure of the Constitution to come fully into force creates a situation of juridical insecurity that makes it difficult to fully consolidate the rule of law. Accordingly, the Commission believes it is urgent that organic laws be enacted, as the best way to establish the mechanisms enshrined in the Constitution of the Bolivarian Republic of Venezuela for the selection of its Supreme Court justices, the People’s Defender, the Prosecutor General, and the Comptroller General.

 

C.         Impunity

 

191.     The rule of law is largely upheld by ensuring that the justice system has no tolerance for impunity. As the Inter-American Commission has said: “impunity is one of the serious problems in the administration of justice in the hemisphere.”[97] The Inter-American Court has defined impunity as “the total lack of investigation, prosecution, capture, trial and conviction of those responsible for violations of the rights protected by the American Convention.”[98]

 

192.     Most of the human rights violations described in this report involve the Venezuelan State’s failure to observe its obligation of preventing and investigating crimes and punishing the guilty, which gives rise to impunity. The impunity that exists in a large number of cases involving human rights violations undermines Venezuelan society’s confidence in the justice system and leads to an intensification of violence, fueling a vicious circle of impunity and violence.

 

193.     In this regard, the Commission notes that no significant progress has been made with the exhaustive investigation into the coup d’état, killings, and other human rights violations that took place between April 11 and 14, 2002. Although eight officers of the Metropolitan Police were charged with the deaths of Ruddy Alfonso Urban and Erasmo Sánchez, the investigations carried out by the Public Prosecution Service into most of these cases are still in the preliminary stages. Once exception is the Puente Llaguno case, in which the accused were acquitted on September 30, 2003, in a judgment handed down by the Fourth Court of Maracay in Aragua State. More than a year and a half after the incidents took place, nobody has been sentenced for the deaths and injuries inflicted. With particular reference to the cases of Alexis Bordones, Jesús Mohammad Capote, Jorge Tortoza, and Jesús Arellano, who were killed by individuals firing at them from Avenida Baralt, no effective steps have been taken toward identifying and arresting the perpetrators, even though the suspected perpetrators were filmed and photographed while discharging their weapons.

 

194.     In addition, it has been pointed out that there are mechanisms in place that ensure impunity in the cases arising from the events of April; it is thus noted that the prosecutors who began the investigation were removed and replaced by officials with less experience in criminal prosecutions and in the realm of human rights. Specific mention is made of the Special Commission established by the Public Prosecution Service to investigate the April 11 killings, which was dismantled with the exclusion of prosecutors Alfonso López, César Mirabal, Héctor Villalobos, and José Ernesto Graterol. Also, more than a year after the incidents, the case files for most of the incidents still only contain the victims’ autopsy reports and statements taken from their relatives. With specific reference to the cases that took place on April 12, 13, and 14, not even the most basic criminal investigation formalities have been pursued, such as mapping, calculating ballistic trajectories, conducting on-site inspections, etc.[99]

 

195.     The State has therefore tarried in its duty of investigating those crimes and punishing the guilty. The IACHR is concerned that more than a year and a half after the incidents, the investigation of the killings and injuries that took place between April 11 and 14, 2002, have not progressed further than the very first stages; the only exception to this being the case of the shots fired from atop Llaguno Bridge, the result of which was the acquittal of the accused. It is also a source for concern that the prosecutors who began the investigation were removed and replaced by officials with less experience in criminal prosecutions and in the realm of human rights.

 

196.     In connection with this, the Commission has received information indicating that in recent years Venezuela has seen a significant increase in the impunity surrounding acts of violence. According to this information, 90% of investigations into human rights violations go no further than the preliminary stages of the process.[100] Specifically, the Commission was told that during the first quarter of 2003, the Judicial Police referred 3,892 cases to the courts; nevertheless, the judges had only resolved 19% of these submissions: in other words, they handed down rulings in 772 cases. These figures are similar to those gathered during 2002, when, of 9,529 homicide cases, final judgments were given in only 667. The Commission believes that these figures are a source for particular concern: impunity represents a serious violation of a State’s obligations and entails a kind of vicious circle, repeating and perpetuating itself, and thereby increasing the numbers of crimes that are committed, particularly violent ones.[101] Impunity generates a situation of injustice wherein many people decide to take justice into their own hands, giving rise to incidents that constitute further violations of basic human rights, such as killings.

 

197.     An illustrative case is provided by executions carried out by death squads, an aspect of the phenomenon known as social cleansing. These are particularly common in the states of the interior, such as Anzóategui, Falcón, Portuguesa, Yaracuy, and others, and will be dealt with in full in the chapter on the Right to Life. The information received indicates that impunity still prevails in the cases that were reported; specifically, the investigations begun by the Public Prosecution Service have not advanced beyond the preliminary stages[102] and the victims or their relatives are continually harassed after reporting the incidents. In addition, the investigations carried out into these groups’ crimes reveal that factors such as informal attitudes to internal regulations, the discretionary use of uniforms and credentials during security operations, and the use of unregistered private citizens for police operations all combine to consolidate impunity.

 

198.     At the same time, the Commission has been watching with concern the Venezuelan State’s failure to comply with the international commitments it assumed in cases brought before the inter-American system. In several of these – such as the case of Ramón Eleazar Mavares or the El Amparo killings – the State complied partially by compensating the victims, but it failed to meet its obligation of establishing due responsibility for the incidents by punishing the perpetrators. The State has also failed to abide by the Inter-American Court’s reparations judgment of August 29, 2002, in the El Caracazo case. Mention could also be made of the Catia Checkpoint case, where the State has still not punished those responsible for the deaths of 63 prison inmates on February 27, 1992. The Commission has also received information about other serious human rights violations in Venezuelan prisons, incidents that remain unpunished. In January 1994 a massacre at Sabaneta Prison in Maracaibo led to the deaths of about a hundred inmates; in October 1996, 25 inmates burned to death at the El Paraíso Reeducation and Artisan Work Center. In August 1997, 29 inmates died inside the El Dorado Judicial Jail. In addition, as stated above, the Commission has been able to note failures to investigate in cases covered by precautionary and provisional measures, as was noted by the Inter-American Court in the aforesaid Resolution of November 27, 2002.

 

199.     The Commission believes that several factors exist that are encouraging increased levels of impunity in Venezuela. A report by COFAVIC into the state of democracy in Venezuela identifies the following as the chief causes of this impunity: the politicization of agencies in the justice system; legal insecurity because of uncertainty surrounding the State’s rules and laws; legislative delays; the provisional status of most judges; and the restricted access available to excluded and marginalized groups lacking the economic resources to hire legal counsel.[103]

 

200.     One aspect that the Commission believes it should emphasize on account of its negative impact is the existence of certain constitutional and legal provisions that in some way encourage impunity. One illustration of this is the establishment of Preliminary Merit Trials for Generals and Admirals of the National Armed Forces, set forth in Article 266(3) of the Constitution; one example of the precept’s implementation was the preliminary merit trial held at the request of the Prosecutor General of the Republic, Mr. Julián Isaías Rodríguez Días, to determine whether there were indications of responsibility on the part of four officers – Rear Admirals Héctor Ramírez Pérez and Daniel Comisso Urdaneta, and Generals Efraín Velasco and Pedro Antonio Pereira – in connection with the events of April 11, 12, and 13, 2002. Those proceedings ruled that sufficient merits to prosecute those officers did not exist.

 

201.     Similarly, the IACHR has received a series of comments with respect to the actions of the state bodies charged with the administration of justice. In connection with the Criminal, Scientific, and Criminalistic Investigations Corps, the Commission has received claims indicating that this agency’s hierarchical and administrative dependence on the Ministry of the Interior and Justice – an eminently political executive office that also oversees the General Sectoral Directorate of the Intelligence and Prevention Services – does little to help ensure the minimal standards of impartiality and respect for judicial guarantees.

 

202.     The Commission notes that the actions of this agency, responsible for carrying out important expert examinations, could compromise the guarantee of independence, impartiality, and competence set forth in the Convention and fuel impunity. Vital expert testing in the investigations of major crimes such as those committed during the events of April 2002 and the deaths attributable to the death squads was carried out by this agency that is administratively dependent on the executive branch of government, a body that has in both cases made public statements regarding the alleged facts. The Commission believes that in light of the powers and authorities vested in the Criminal, Scientific, and Criminalistic Investigations Corps, and to guarantee the independence of its actions, the agency should either be attached to the Public Prosecution Service or be set up as an autonomous body.

 

203.     The agency also acts with a high level of discretionary powers, even in cases in which its own officials could be involved. In addition, prosecutors have been replaced in high-profile cases, such as those dealing with the events of April, without reasonable explanations being offered. This has fueled fears about the level of institutional commitment within the Public Prosecution Service, and about that agency’s effective independence. The Commission believes that this situation could foster impunity and constitute an affront to the guarantees of independence and impartiality.

 

204.     The Commission understands that impunity is upheld on both a de jure basis (through amnesty laws, for example) and a de facto basis, through the failure to investigate and punish the perpetrators of human rights violations. De facto impunity can also arise for structural reasons, such as excessive formalism on the part of judges or a shortage of resources for tackling the number of crimes reported, or it can be caused by factual situations, such as interference in investigations or proceedings driven by political imperatives. In all these cases, be they de jure or de facto, the State fails to comply with its obligations set by the Convention in Articles 8, 25, and 1(1), whereby it is required to prosecute and punish the perpetrators of human rights violations.

 

205.     Impunity gives rise to international responsibility on the part of the State; this applies even to crimes committed by common criminals who are not state agents when the State does not meet its international obligation of pursuing a serious, impartial, and effective investigation into the incident with the aim of punishing the guilty. This omission also places the State under the obligation of indemnifying the victims or their next-of-kin for the violation of their human rights implied by the State’s failure to provide a proper investigation of the incident, irrespective of whether or not the perpetrators were state agents.

 

206.     Article 1(1) of the American Convention provides that: “The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.” The Inter-American Court has ruled that the obligation of guaranteeing the free and full exercise of the human rights enshrined in that article:

 

Implies the duty of States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation. (…)

 

If the State apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.

 

 In certain circumstances, it may be difficult to investigate acts that violate an individual’s rights. The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government. This is true regardless of what agent is eventually found responsible for the violation. Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.[104]

 

207.     In light of the above comments, the Commission believes that the State serves as the guarantor of the human rights of all individuals; as a result, its duty is to prevent illegal acts and, when appropriate, to respond thereto by condemning them by investigating and prosecuting the guilty and compensating the victims, thereby working to prevent situations of impunity. Thus, to create within society a perception of credibility and trust toward the state agencies charged with administering justice as regards that guarantee, the State must dedicate all its efforts to preventing and eliminating impunity, which acts as a breeding ground for future human rights violations.

 

208.     The above analysis leads to the conclusion that the alarming levels of impunity in Venezuela arise chiefly from factors that affect the human rights of the Venezuelan people, thereby seriously endangering democratic institutionality in the country. The Commission exhorts the State to devote priority attention and political will to overcoming the impunity that still persists, and it reminds the State of its obligation of taking the steps necessary to ensure that justice is administered independently, impartially, and effectively.

 

 

D.         The Administration of Justice and the Inter-American System

 

209.     The Commission must note its concern regarding Judgment No. 1,942, issued by Venezuela’s Supreme Court of Justice on July 15, 2003.[105] The Commission believes that this judgment, issued by the country’s highest court of law, could represent a step backward with respect to human rights in Venezuela. This is because the opinions it contains seriously restrict the State’s compliance with the recommendations and precautionary measures issued by the Inter-American Commission and other international agencies.[106]

 

210.     The IACHR believes that this line of legal reasoning by Venezuela’s highest court could have a negative impact on the inter-American system for the protection of human rights. The decision is tantamount to ignoring the international obligations assumed by Venezuela as a state party to the American Convention and its duty of acting in good faith regarding the recommendations and decisions of international agencies, particularly those involving human rights.

 

211.     A comprehensive analysis of the judgment reveals that it ignores the obligatory nature of the decisions handed down by international human rights bodies, requiring for those rulings to be executed in Venezuela that they not contradict the Constitution – a decision to be taken, in the final instance, by the Constitutional Chamber of the Supreme Court of Justice itself. The IACHR therefore believes that this judgment is incompatible with the intrinsic goals of the inter-American human rights system, in that it enthrones the State itself as the final guarantor of human rights and their currency, thereby clearly eliminating any possibility of controlling state actions in this field.

 

212.     The statements made by the Inter-American Court in its jurisprudence are of relevance here:

 

Moreover, accepting the said declaration in the manner proposed by the State would lead to a situation in which the Court would have the State’s Constitution as its first point of reference, and the American Convention only as a subsidiary parameter, a situation which would cause a fragmentation of the international legal order for the protection of human rights, and which would render illusory the object and purpose of the Convention .

 

213.     With specific reference to the recommendations issued by the IACHR, the Court has ruled as follows:

 

However, in accordance with the principle of good faith, embodied in the aforesaid Article 31(1) of the Vienna Convention, if a State signs and ratifies an international treaty, especially one concerning human rights, such as the American Convention, it has the obligation to make every effort to apply with the recommendations of a protection organ such as the Inter-American Commission, which is, indeed, one of the principal organs of the Organization of American States, whose function is to promote the observance and defense of human rights in the hemisphere (OAS Charter, Articles 52 and 111 ).

 

Likewise, Article 33 of the American Convention states that the Inter-American Commission is, as the Court, competent with respect to matters relating to the fulfillment of the commitments made by the State Parties, which means that by ratifying said Convention, States Parties engage themselves to apply the recommendations made by the Commission in its reports .[107]

 

214.     Accordingly, the Commission holds that this judgment by Venezuela’s Supreme Court of Justice ignores the provisions of the Constitution and constitutes a flouting by the State of the commitments it assumed by ratifying the American Convention in pursuit of proper protection for the human rights of the inhabitants of Venezuela.

 

215.    Secondly, the Commission notes the Venezuelan State’s repeated failure to observe the precautionary measures extended by the IACHR and the provisional measures ordered by the Inter-American Court. During 2002, the IACHR asked the Venezuelan State to adopt precautionary measures to protect various individuals’ personal and physical integrity on 13 occasions. The IACHR registers its concern at the failure to comply in full with the protective measures that were requested. The IACHR has received information indicating that most people covered by the protective measures established by these precautionary measures have continued subsequently to suffer harassment, threats, and physical violence. Since the aggression against them continued, the IACHR duly extended the duration of many of the precautionary measures it had asked for and, in some particularly serious cases, it petitioned the Inter-American Court to grant provisional measures, as described below.

 

216.     The IACHR notes that although in most cases months have gone by – or, in some instances, more than a year – since the original request, the Public Prosecution Service has formally complied with the Commission’s requests but has not proceeded, in any of these cases, to carry out the investigations necessary to identify responsibilities and punish the perpetrators of the acts of violence and aggression in question.

 

217.     Given the ineffectiveness of precautionary measures in three specific cases in which the threats and attacks continued and increased, the Commission decided to send the Inter-American Court of Human Rights a request for provisional measures to protect the life and personal integrity of Luisiana Ríos, Luis Augusto Contreras Alvarado, Armando Amaya, and Eduardo Sapene Granier of Radio Caracas Televisión, Liliana Ortega, Yris Medina Cova, Hilda Páez, Maritza Romero, Aura Liscano, Alicia de González, and Carmen Alicia Mendoza, all members of the nongovernmental human rights organization called the Committee of Relatives of the Victims of the Events of February-March 1989 (COFAVIC), and of Mr. Luis Enrique Uzcátegui Jiménez. The three sets of provisional measures sought were granted by the Court on November 27, 2002, ruling that the necessary conditions of gravity and urgency had been met. Later, the Commission asked the Court for provisional measures to protect the life, personal integrity, and freedom of expression of the journalists Marta Colomina and Liliana Velásquez, who endured an attack on their lives in the early hours of June 27, 2003, while on their way to the premises of the Televen television station. The Court granted these provisional measures by means of a Resolution dated July 30, 2003.[108]

 

218.     In connection with this, the Commission notes that the State has not replied to any of the precautionary measures requested by the Commission and that this failure was later repeated with respect to the provisional measures ordered by the Inter-American Court. Thus, in resolutions dated February 20, 2003, the Court reported that the State had not complied. Specifically, in the three resolutions issued on that date, the Inter-American Court resolved as follows:

 

1.         To declare that the State has not effectively implemented the provisional measures ordered by the Inter-American Court of Human Rights in its [Resolutions] of November 27, 2002.[109]

 

219.     In light of these considerations, the Commission expresses its concern at the failure to comply with the Court’s provisional measures and the Commission’s precautionary measures. Complying with the decisions of the Commission and the Court is essential in guaranteeing protection for the human rights of the inhabitants of Venezuela.

 

E.         Recommendations

 

220.     The Commission extends the following recommendations to the Venezuelan State:

 

1.         Immediately, and in compliance with its domestic law and its international obligations under the American Convention, further and hasten the process aimed at terminating the provisional status of most of its judges, thus guaranteeing their tenure in their positions, which is a necessary condition for ensuring judicial independence.

 

2.         Take the steps necessary to guarantee the autonomy and independence of the different branches of government. In particular, the Commission recommends appointing the top authorities of the judicial and citizens’ branches, closely following the procedure set forth in the Constitution and adapting to that end the provisions of domestic law to the precepts contained in the new Constitution.

 

3.         Adopt planned policies in the short, medium, and long terms in order to eliminate or minimize situations of impunity, which constitute violations of various human rights and can trigger the international responsibility of the State. In connection with this, the Inter-American Commission reiterates its concern regarding the impunity that exists in Venezuela. The IACHR again states that leaving numerous individual crimes unpunished has an impact on the nation and its culture, affecting not only the victims of human rights violations or other crimes, but also society in general.[110]

 

4.         With reference to the events of April 2002, and also with regard to the actions of the death squads, the Inter-American Commission emphatically reminds the State that it is obliged to conduct a serious investigation of those incidents, to punish the guilty in firm and final judgments, to indemnify the victims of those violations, and in so doing to provide the witnesses and the victims relatives with all due protection.

 

5.         Organize and immediately grant sufficient resources to the Public Prosecution Service, in order to implement, at the national level, a program for the protection of victims, witnesses, and prosecutors of the Public Prosecution Service. Modify the institutional structure of the Criminal, Scientific, and Criminalistic Investigations Corps in order to guarantee the independence of its actions.

 

6.         As regards the cases on which the inter-American system has ruled, the IACHR urges the Venezuelan State to implement, clearly, seriously, and effectively, the recommendations served by the Inter-American Commission on Human Rights in the cases decided and to comply immediately with the judgments of the Inter-American Court of Human Rights in the Caracazo and El Amparo cases. With specific reference to the Caracazo case, the Venezuelan State must comply with the provisions of the finalized reparations judgment issued by the Court on August 29, 2002, as regards the monetary and nonmonetary indemnification of the victims and bringing its law-and-order plans into line with international human rights law.[111] The IACHR also reiterates that the Venezuelan State must comply with its precautionary measures and with the provisional measures granted by the Inter-American Court.