CHAPTER V

 

THE RIGHT TO HUMANE TREATMENT

 

 

A.         Introduction

 

348.     Article 5 of the American Convention on Human Rights recognizes the right of all persons “to have his physical, mental, and moral integrity respected”; it also expressly prohibits the use of torture or “cruel, inhuman, or degrading punishment or treatment” against persons.

 

349.     With respect to the right to humane treatment, the Commission observes that the worsening of the institutional conflict in Venezuela has spilled over into acts of violence that have led to violations both of the right to life, as described, and of the right to humane treatment.  As regards the latter right, the Commission notes a series of aspects of particular concern. First, the high number of cases of torture and of cruel, inhuman and degrading treatment practiced by the state security forces. Second, the failure of the competent state organs to do their duty to investigate complaints on these cases and to punish those responsible, who usually remain unpunished. The latter encourages the reiteration of such conduct and the absence of effective procedures to monitor respect for the physical integrity of persons detained at civilian and military detention centers.

 

350.     Furthermore, civil society organizations reported that the National Guard and local police forces frequently used excessive force to break up demonstrations or when detaining criminal suspects, in particular during the events of April 2002 and in later political rallies.[157] During the events of April the organization Provea counted 82 complaints of cases of violation of the right to humane treatment.[158] For its part, the Preliminary Report of the Ombudsman on the events of April mentions 24 complaints of violation of the right to humane treatment, 10 of which involved torture and nine illegal entry. The report mentions that at least 398 people were wounded by firearms, buckshot and other objects on April 11, 12, 13, and 14.[159] Although there were complaints of excessive use of force by security forces personnel in these instances, none of the complaints made by civil society organizations or by victims had been resolved at the time of this writing. As a result, they remain unpunished and neither judicial nor administrative responsibility has been apportioned to the state officials concerned.

 

B.         Torture and Cruel, Inhuman and Degrading Treatment

 

351.     Venezuela has ratified the Inter-American Convention to Prevent and Punish Torture and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Under these instruments, Venezuela adopted the international duty, inter alia, to prevent and punish torture and to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. The Inter-American Convention to Prevent and Punish Torture defines torture in the following terms:

 

...any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

 

The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.[160] 

 

352.     The Commission had occasion to analyze information from numerous sources on the practice of torture in Venezuela. In light of the gravity of such acts, the IACHR deems it appropriate in this report to exam the situation of the right to humane treatment in Venezuela in relation to the practice of torture.

 

353.     First, the Commission notes that one aspect of this issue of particular concern has to do with the fact that to date there is still no law that punishes torture in Venezuela, something that the IACHR regards as a legislative tardiness with serious consequences in this area. On the question of domestic legislation on torture, the fourth transitory provision of the Constitution of the Bolivarian Republic of Venezuela provides that the National Assembly should have passed within a year of its installation legislation punishing torture, either through the adoption of a law or through the reform of the Criminal Code. The Commission has informed that, while such a law was on the legislative agenda for 2002, no progress has been made in its drafting or discussion.

 

354.     The Commission considers it urgent to draft and enact the aforementioned legislation. Without prejudice to the foregoing, the IACHR values as positive the inclusion in the Constitution of a provision that accords constitutional rank to the human rights treaties ratified by the state, and also that the new Constitution has strengthened and widened the legal provisions on protection of the right to personal security and humane treatment, and prevention of practices that violate that rights.

 

355.     In this respect, Article 46 of the new Constitution provides:

 

Everyone is entitled to respect for his or her physical, mental and moral integrity, therefore:

 

1.         No person shall be subjected to cruel, inhuman or degrading punishment, torture or treatment.  Any victim of torture or cruel, inhumane or degrading treatment practiced or tolerated by agents of the State has the right to rehabilitation.

 

2.         Any person deprived of liberty shall be treated with the respect due to the inherent dignity of the human being.

 

3.         No person shall be subjected without his or her freely given consent to scientific experiments or medical or laboratory examinations, except when such person's life is in danger, or in other circumstances determined by the law.

 

4.         Any public official who, on the basis of his official position, mistreats or inflicts physical or mental suffering on any person or instigates or tolerates such treatment, shall be punished in accordance to law.

 

356.     Numerous complaints have been submitted by nongovernmental organizations and private individuals to the effect that torture continues to be practiced at police agencies and even in the framework of judicial investigations, in order to intimidate detainees and extract confessions from them.[161] This situation has also been noted by other international organizations.[162] All the information collected indicates that acts of torture and mistreatment occur in the framework of operations to curb “crime” or to maintain order at demonstrations, protests, and, in particular, during periods of preventive detention at police and military facilities, in order extract confessions from people.

 

357.     The national NGO, Red de Apoyo por la Justicia y la Paz [Peace and Justice Support Network] documented 145 cases of torture and cruel, inhuman or degrading treatment, perpetrated by officials of the state security services between 1999 and the first half of 2003.[163] According to the General Coordinator of the organization, Mr. Alfredo Ruiz, the figures given in the report show that during the period documented there was a large number of violations of the right to humane treatment, the vast majority of which remain unpunished.[164]

 

358.     According to a report by the same organization, the methods of torture and other inhuman and degrading treatment used in all of these cases are both physical and psychological. The most common are to threaten to kill both the victim and his or her relatives; verbal aggression; blows and kicks; to throw them down stairs or against the floor and walls; to move them blindfolded and with hands and feet bound; isolation without food; and to leave them naked. Other methods employed are immersion of the head in clean or dirty water, burns and sexual torture. Furthermore, mistreated people are normally held incommunicado for almost a week and denied access to medical and legal services during that time. The report mentions that, according to the statistics analyzed, the populations worst affected are males aged 14 to 24 and 25 to 34.[165]

 

359.     This report also questions the procedures used by medical examiners to determine and verify the sequelae of torture. It mentions that these forensic professionals conduct very superficial examinations to check for physical signs of torture (bruises, abrasions, etc.), which do not allow them properly to diagnose the gravity and extent of injuries. Furthermore, on occasion, the examination is carried out after the sequelae have disappeared, which makes it impossible to use them as evidence, with the resulting impunity for the perpetrators.  It is also reported that the Office of the Medical Examiner [Medicatura Forense] is under the supervision of the Scientific, Criminal, and Criminalistic Investigations Force (CICPC), attached, in turn, to the Ministry of the Interior and Justice. This compromises its impartiality and autonomy in the sense that when the persons implicated in acts of torture are officials of the Scientific, Criminal, and Criminalistic Investigations Force, they are unlikely to be harmed by the reports issued, since the doctors that issue them belong to the same agency.[166] Furthermore, certain deficiencies are reported in prosecutorial procedures, in that officials of the Attorney General’s Office do not act with the appropriate dispatch in torture cases by failing to request medical examinations immediately; in other words, before the sequelae can disappear.

 

360.     In sum, according to the information collected, police agents are the main perpetrators of torture, and that torture is usually inflicted in police stations. Torture is basically used on persons who are detained or under investigation. Among the torture cases that have been reported in the Venezuelan press is that of the youth Jesús Soriano, who was arbitrarily detained on January 16, 2003 during a march at the Universidad Central de Venezuela by officials who reportedly belong to the Directorate of Intelligence and Prevention Services (DISIP), attached to the Ministry of the Interior and Justice of the Bolivarian Republic of Venezuela. The Soriano youth publicly denounced that he had been the victim of extremely serious torture at that police agency. Carlos Roa Roa, the young man’s attorney, reported that his client had had his fingernails torn out and that he was not permitted to receive medical attention or to have contact with his lawyers.[167]

361.     One can also cite the case that occurred on August 17, 2002 in Ciudad Bolívar, involving Mr. Ángel Aurelio Da Silva, who reported that he was tortured by officials attached to Raúl Leoni Police Station, in order to force him to confess to the crime of theft.[168] There is also the case of Mr. Franklin Soto, one of those accused in the events of December 6, 2002, at Plaza Francia in Altamira. Mr. Soto reported that he was arrested along with a group of other people at Torre Británica also in Altamira. He says that non uniformed police officers took them in civilian cars to the Chacao Police Station, where they were threatened, stripped naked, handcuffed, and made to kneel on the wet floor while they were beaten about the head. He said that they were later taken to headquarters of the Scientific, Criminal, and Criminalistic Investigations Force, where they were processed by prosecutors with the Attorney General’s Office.

 

362.     With regard to all of these cases, the IACHR was informed that no investigation whatever was carried out that resulted in the adoption of disciplinary measures for those responsible or their prosecution. In this connection, the Commission notes a clear link between the impunity of these cases and their constant repetition at police facilities. The Peace and Justice Support Network said that officials implicated in torture and ill-treatment have enjoyed impunity and in none of the cases recorded have the persons responsible been convicted or punished.[169]  It was also mentioned that the Office of the Medical Examiner is part of the CICPC and therefore it impartiality is in doubt, to the extent that there is scant probability that its doctors were impartial in the examination of cases that involved torture by members of the CICPC.

 

363.     The Commission wishes to note in this respect that the effective observance of human rights requires a system in which all members are trained in the principles of a participatory and well-informed democracy.  In this regard, a thoroughgoing reform is needed of the police in Venezuela that includes instruction in the principles related to democracy and the observance of human rights.

 

 

C.         Recommendations

 

364.     Given the seriousness of the situation, the Inter-American Commission recommends that the State:

 

1.          Take the necessary steps to ensure that acts of torture are categorized and punished as such by the courts.

 

2.           Conduct meaningful, thorough and impartial investigations into acts of torture and other cruel, inhuman or degrading treatment.

 

3.          Initiate, through the Office of the Prosecutor General of the Republic, a thorough investigation of all complaints of abuses of physical integrity, in particular concerning persons deprived of liberty by members of the National Guard, and guards attached to the Prisons Directorate of the Ministry of the Interior and Justice.

 

4.           Adopt the measures necessary to exercise effective judicial oversight of detention and the organs charged with its enforcement.

 

5.          Set up training campaigns for officials of security bodies, in order to instruct in matters concerning human rights and strict compliance with the law in cases of detention and maintenance of public order.

 

6.         Adopt the measures necessary to rehabilitate and provide fair and adequate compensation to victims of torture.

 

7.         To prepare and promulgate at the earliest convenience the necessary laws to punish torture in accordance with the Fourth Transitory Provision of the new Constitution, either through the enactment of a law or reform of the Criminal Code.

 

8.         To include in the domestic law, either through legislation or jurisprudence, the exclusion of any evidence obtained under torture or other cruel, inhuman or degrading treatment, in accordance with the Inter-American Convention to Prevent and Punish Torture. Furthermore, this exclusion rule should be extended to apply to any evidence arising from procedures that are irregular or in violation of due process guarantees, in keeping with the “fruit of the poison tree” doctrine.