REPORT ON THE SITUATION OF HUMAN RIGHTS IN VENEZUELA

INTRODUCTION

1.         The Inter-American Commission on Human Rights (IACHR) is a principal organ of the Organization of American States (OAS) whose mandate is to promote the observance and defense of human rights and to act as the consultative organ of the Organization in this regard.  The powers of the IACHR derive from the American Convention on Human Rights and the Charter of the OAS, both of which have been ratified by the Bolivarian Republic of Venezuela.

2.         The Commission, whose headquarters are located in Washington, D.C., U.S.A., is composed of seven members nominated by member states of the OAS and individually elected by the General Assembly of the Organization.  Members serve four-year terms which can be renewed once.  On a yearly basis, the Commission selects from among its members a board of officers consisting of a President and two Vice-Presidents.  Also part of the Commission is its Executive Secretariat, which comprises an Executive Secretary and the legal and administrative staff necessary for the performance of its functions.  The Executive Secretariat is permanently housed at the headquarters of the IACHR. 

3.         In fulfilling its mandate to promote and protect human rights, the IACHR performs several functions within the framework of the American Convention on Human Rights (“American Convention” or “Convention”), the American Declaration on the Rights and Duties of Man, other international treaties, and its Statute and Rules of Procedure.  Among these functions are the hearing of petitions and individual cases of human rights violations; precautionary measures aimed at preventing irreparable damage to persons; on-site visits to member countries of the OAS made with respect to a specific case under review by the Commission, [1] to conduct a general observation of the human rights situation in the country or to look at a specific issue or particular situation[2]; production of various types of reports, be they general or specific; and work through “Special Rapporteurs” on specific issues related to human rights.

I.         BACKGROUND OF THE REPORT

4.         In the context of the functions noted above, the IACHR regularly monitors THE human rights situation in OAS member states.  From 2000 to the present, the Inter-American Commission has been closely following events in the Bolivarian Republic of Venezuela and has acted within the bounds of its mandate to ensure the observance of human rights in that country.  In this respect, the Commission has employed the various mechanisms envisaged by the American Convention for the protection of human rights, namely the case system, adoption of precautionary measures, request for provisional measures from the Inter-American Court of Human Rights, on-site visits to the country and press releases.  The following is a brief outline of these undertakings.

5.         In 2000, the Commission, through its Office of the Special Rapporteur for Freedom of Expression, observed the development of an atmosphere of hostility at the highest levels of government as a mechanism of direct and indirect pressure on the media and social activists.[3]

6.         Following this, the Executive Secretary of the IACHR and then Rapporteur for Freedom of Expression, Dr. Santiago A. Canton, at the invitation of the Government of Venezuela, visited the Bolivarian Republic of Venezuela on February 5 to 8, 2002.  The objective of this visit was to collect information on freedom of expression in Venezuela and to perform a preliminary evaluation in aid of an IACHR on-site visit scheduled for May 2002.[4]   In addition, Dr. Canton’s visit represented a response to concerns expressed by several sectors of civil society regarding recent developments related to freedom of expression in the country.

7.         During the serious events of April 11, 2002, the Commission condemned the coup d’état against the constitutional order[5]. The Commission issued a press release to this effect on April 13, 2002 in which it expressed, inter alia, its strong condemnation of the acts of violence and its regret that the most senior authorities were removed from public office, and cautioned that these acts represented a breach of constitutional order. Moreover, the Commission noted that, from April 12 to 13, arbitrary arrests and other violations of human rights claimed the lives of more than 40 persons and caused injury to one hundred others.

8.         The Commission later conducted an on-site visit to the Bolivarian Republic of Venezuela from May 6 to 10, 2002. Held within the framework of the American Convention to which Venezuela is a signatory, and the governing Statute and Rules of Procedure of the IACHR, the visiting party comprised the President of the Commission and Rapporteur for Venezuela, Dr.  Juan E. Méndez; First Vice-President, Dr. Marta Altoguirre, and Commissioners Professor Robert K. Goldman, Dr. Julio Prado Vallejo and Ms. Susana Villarán.  Also participating were the Executive Secretary of the IACHR, Dr. Santiago A. Canton, Special Rapporteur for Freedom of Expression, Eduardo Bertoni, and staff from the Executive Secretariat.[6]

9.         Upon completion of this on-site visit, the Commission issued a press release presenting preliminary comments based on its observation of the general human rights situation in the country and offering certain recommendations that in its opinion would serve to mitigate some of the serious problems identified.[7]

          10.       On December 12, 2002, the Commission issued a press release in which it expressed serious concern over the deepening crisis in Venezuela and urged member states of the OAS to take immediate steps to “work with Venezuelans in seeking an urgent solution that will prevent further loss of human life and ensure Venezuelans that the rule of law will remain fully in force.”[8]

11.       During the 117th Regular Session of the Commission, held between February 20 and March 7, 2003, the IACHR continued inquiries into the status of the rule of law in Venezuela. On March 10, 2003, the IACHR issued a press release reiterating its concern about the continuing deterioration of the rule of law in Venezuela.

12.       In response to wishes expressed by the Government of Venezuela during the on-site visit, the Commission had planned to carry out a series of follow-up visits.  To date, these visits have not been conducted due to the failure on the part of the Venezuelan State to establish the dates.  It is the view of the IACHR that the presence of the Commission in the country will help significantly to bolster the defense and protection of human rights in a context of democracy and institutional legality.  In this light, the Commission requests that a date be set for an on-site visit.

13.       In relation to this matter, the General Assembly of the Organization of the American States (OAS) in Resolution AG/1917 (XXXIII-O/03), with respect to the Annual Report of the IACHR, resolved the following:

To note with satisfaction the decisions taken by governments of member states to invite the Inter-American Commission on Human Rights to visit their respective countries and to encourage all member states to continue this practice.[9]

II.         SCOPE OF THE PRESENT REPORT, ITS APPROVAL AND FOLLOW-UP

14.       This report will analyze the present situation in Venezuela, with specific reference to the various aspects of the current status of the rule of law in the country.

15.       As noted above, by virtue of its competence as a key organ of the Organization of the American States charged with the protection and promotion of human rights in the Americas and in accordance with its mandate, as stipulated in the American Convention on Human Rights and more specifically defined in its Statute and Rules of Procedure, the Inter-American Commission monitors human rights developments in each member state of the OAS.

16.       The present report was prepared on the basis of a diverse array of information and materials compiled and analyzed by the Commission, including those collected during its on-site visit to Venezuela in May, 2002.  In addition to reflecting insights gathered on that occasion, the report refers to information compiled prior to and in preparation for the visit.  Material referred to in the report also includes updated information provided by governmental, intergovernmental, non-governmental, academic and media sources through the Commission’s normal monitoring procedures, as well as through the processing of individual petitions.  The report was prepared on the basis of this information with a closing date of November 4, 2003.

         17.       The draft “Report on the Situation of Human Rights in Venezuela” was approved by the Commission during its 118^th Regular Session.

18.       The report was transmitted to the State by the Executive Secretary on November 13, 2003, with the request that the former present any observations it deemed pertinent within the fix dead line of a month.  On December 12, 2003 the Government requested an extension of the due date to present its observations.  On December 16, 2003 the IACHR informed the Government that an extension could not be granted while indicating that the Commission would await a reasonable time before publishing the report approved by the IACHR, so as to allow the Government to submit its observations which would be publish in the IACRH web page.  On December 29, 2003 the IACHR ultimatelly approved the report and the publication without having received the observation of the Government.

19.       Finally, it should be reiterated that the present report was prepared in a context of political and institutional instability.  In so doing, the IACHR takes note of the efforts made in negotiations between the Government of President Chávez and representatives of Coordinadora Democrática [Democratic Focal Point], the conduct of which was supported and facilitated by the Secretary General of the OAS, César Gaviria, with technical support of the United Nations Development Programme and the Carter Center, and also benefiting from the support of the Group of Friends of Venezuela.  Among its activities, the Commission takes note of the first formal agreement reached between the Government and the Opposition in approving a seven-point document entitled "Declaration against Violence, and in support of Peace and Democracy" signed by the parties on Monday, February 17, 2003, one hundred days after its  establishment.  The IACHR also considers a significant advance the Agreement recently signed by representatives of the Government and the Opposition, on May 29, 2003, in which negotiations were brought to a close and both parties indicated that the electoral resolution of the country’s crisis would be achieved through the application of Venezuela’s constitutional provisions.

III.        RELEVANT BACKGROUND

20.       The Commission considers it appropriate to present certain normative and factual antecedents as a context for the analysis of the human rights situation in the country.  As follows, the IACHR will present a brief outline of the legal system created by the Constitution of the Bolivarian Republic of Venezuela, placing special emphasis on the constitutional structure of government and to the regulatory framework for the protection of the human rights in Venezuela.  In addition, certain historical and factual aspects of the present political situation will be briefly discussed.

            A.         The Judicial System and the Protection of Human Rights

1.         The new Constitution of the Bolivarian Republic of Venezuela

21.       The constitutional process in Venezuela had its origin in the manifesto of current President, Hugo Chávez Frías, for the elections of December 1998.  Chávez, the candidate of the Polo Patriótico party at the time, undertook to convene a National Constituent Assembly in the event of his victory in the presidential elections.  His proposal, entitled "the Hugo Chávez Proposal for the Transformation of Venezuela" articulated the concept of a new social pact to bolster the country’s democratic foundations.

22.       Following the election of Hugo Chávez to office, the focus of national politics became the realization of the constitutional process. With respect to the institutional mechanisms for convening a National Constituent Assembly, the option of calling a consultative referendum was proposed, however some political sectors considered it necessary to reform the Constitution to include a standard for convening the Assembly and indicating the mechanism for so doing. As a result of these differences of opinion, an appeal was made to the Supreme Court—the supreme judicial organ at that time—to rule on the feasibility of convening the Constituent Assembly via consultative referendum without prior reform of the Constitution.  With respect to this issue, the Court resolved that:

…it is indeed permissible to convene a referendum, in the form envisaged in Article 181 of the Suffrage and Political Participation Act, to consult the opinion of the majority regarding the possible convening of a Constituent Assembly, in the terms expressed in this ruling.[10]

23.       Consequently, on April 25, 1999, a consultative referendum was held though which the decision to call a Constitutional Process was submitted to the will of the majority.  The consultation produced a positive response: 85% of the participating electorate expressed their consent to hold elections for the purpose of forming a Constituent Assembly.[11]  In light of this, the election of members that would comprise the National Constituent Assembly was conducted in Venezuela on July 25 of that year; 104 regional candidates, 24 national and 3 indigenous representatives were elected. This Assembly was responsible for the drafting of the new Constitution. Constitutional representatives met from August 3 to November 15, 1999 and, in the course of their deliberations, established and drafted a new Constitution that changed Venezuela’s institutional structure.

24.       On December 15 of the same year, the referendum on the approval of the Constitution of the Bolivarian Republic of Venezuela drafted by the National Constituent Assembly was conducted.[12]

25.       Article 2 of the new constitution reaffirms democratic Government, stipulating that:

Venezuela is constituted as a democratic and social state subject to the rule of law and justice, and holds up as supreme guiding principles of its legal system and its actions the values of life, liberty, justice, equality, solidarity, democracy, social responsibility and, in general, the preeminence of human rights, ethics and political pluralism.

26.       The standards introduced into the new National Constitution required the restructuring of the branches of government in Venezuela.  Once the basic text was approved, it became necessary to re-legitimize some branches and to elect others, for which new elections were held on July 30, 2000.  Elections to the national, state and local executive authorities (President, governors, and mayors) were held on that day. In these polls, President Hugo Chávez was returned to office by a majority of 58 percent of the voters. In the case of those branches to which re-legitimization did not apply, such as the Supreme Court, electoral branch and citizens’ branch [poder ciudadano], a special regime was used to elect their members, as will be described in the section on the judicial branch.[13]

2.         The Constitutional Structure of the Bolivarian Republic of Venezuela

27.       The constitutional text of the Bolivarian Republic of Venezuela regulates the organization of the State by means of systems of distribution and division of public power.  In accordance with constitutional standards, government in Venezuela is structured vertically in terms of National, State and Municipal Authorities, and horizontally, in terms of Legislative, Executive, Judicial, Citizens’ and Electoral Branches.  The Constitution incorporated to the institutional life of the State two new independent branches of government: the Electoral Branch and the Citizens’ Branch, with ample authority in the exercise of their powers, as outlined below.

a.         The National Legislative Branch

28.       The Venezuelan Constitution envisages unicameral legislative power exercised by the National Assembly comprising deputies chosen in each federal entity by universal, direct, individual suffrage by secret ballot with proportional representation for a period of five years.  In addition, indigenous peoples are represented by three elected deputies. Article 200 of the aforementioned constitution stipulates that:

Deputies of the National Assembly shall enjoy immunity in the exercise of their functions from the date of their proclamation until the completion or termination of their mandate. Alleged crimes committed by members of the National Assembly will be heard privately by the Supreme Court of Justice, the sole authority capable of ordering, with the authorization of the National Assembly, their arrest and the continuation of legal proceedings.  In case of flagrant violations of the law committed by a parliamentarian, the competent authority shall put him or her under house arrest and immediately inform the Supreme Court of Justice of this fact.

Government officials who violate the immunity of members of the National Assembly, will be held criminally responsible and be punished in accordance with the law.

29.       The National Assembly has broad powers, including the power to legislate on matters of national competence, as well as the operation of the different branches of the national government, to propose amendments to and reforms of the Constitution, to exert some measure of control over the Government and the National Public Administration, within the bounds established by the Constitution itself, to debate and to approve the national budget.  Without diminishing any of these standard functions, the new constitutional text confers other powers such as that of the promotion of citizen participation and veto powers to the Vice-President and the Ministers.[14]

b.         The Executive Branch

30.       National executive power is exercised by the President of the Republic, whose mandate is for a period of six (6) years.  According to the standards introduced in the new Constitution, the President runs for re-election for only one successive term.[15]   The Executive Branch also comprises the Vice-President, Ministers and other officials as determined by the respective Constitutional standards and the law.

31.       Among the duties and powers to be exercised by the presidency of the Republic under the constitution, is that of complying and enforcing compliance with the law and the Constitution itself, directing Government activity, directing the external relations of the Republic, signing and ratifying international treaties, directing and acting as commander in chief of the National Armed Forces and promoting and appointing officials starting from the rank of Colonel or Ship’s Captain, and issuing legally-binding decrees after authorization by means of an implementing law, convening special sessions of the National Assembly, regulating laws, managing the treasury, negotiating national loans, decreeing additional budget appropriations, signing contracts of national interest, appointing, with the prior authorization of the National Assembly, the Attorney General and heads of permanent diplomatic missions, and leading the National Assembly.[16]

32.       Other functions of the President of the Republic are to declare states of emergency and the restriction of constitutional guarantees in the cases envisaged in the Constitution, to formulate development plans, to grant pardons, to establish the number, organization and competence of ministers and other national government bodies, to dissolve the National Assembly and to call referenda in cases envisaged by the Constitution, and to convene and preside over the National Defense Council as well as the other functions that may be attributed by the Constitution or law.[17]

c.         The Judicial Branch

33.       Article 253 of the Venezuelan Constitution stipulates that "the power to administer justice emanates from the citizens and is exercised in the name of the Republic by authority of law...." The Judicial Branch consists of the Supreme Court of Justice and such other courts as may be determined by law, the public Ministry, Office of the Human Rights Ombudsman, criminal investigation agencies, justice system officials and auxiliary staff, citizens participating in the administration of justice, the penitentiary system, alternative means for the administration of justice and the lawyers authorized for its exercise.  Justice is administered in the communities by justices of the peace, who are elected by universal, direct suffrage by secret ballot.

34.       The Constitution also stipulates that "the Judicial Branch is autonomous” and establishes the “operating, financial and administrative autonomy of the Supreme Court of Justice."[18]  "In order to guarantee impartiality and independence in the exercise of their official functions, magistrates, judges, prosecutors in the Public Ministry and ombudsmen, from the date of their appointment and until they leave office, shall not be permitted, otherwise than by exercising their right to vote, to engage in partisan political, professional association, trade union, or similar activism; nor to engage in private activities for profit, which are incompatible with their official functions, either directly or through any interposed person; nor to perform any other public functions, with the exception of educational activities.”[19]

35.       In accordance with Article 255, 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, with selection by the juries of the judicial circuits, in such manner and on such terms as may be established by law.

36.       The duties and powers of the Supreme Court of Justice enshrined in Article 266 of the Constitution include the exercise of constitutional jurisdiction, ruling as to whether or not there are grounds for impeachment of the President, Vice-President, members of the National Assembly or the Supreme Court itself, Ministers, the Public Prosecutor, Attorney General, Comptroller General, Human Rights Ombudsman, Governors, officers, generals and admirals of the National Armed Forces and heads of the Republic’s diplomatic missions.  The Supreme Court is also charged with resolving administrative disputes arising between the Republic, any state, municipality or other public entity where the other party is one of these entities; declaring the invalidity of regulations, hearing appeals regarding interpretation of the content and scope of the laws; resolving conflicts of jurisdiction between the courts and hearing final appeals in law.  Moreover, Article 267 stipulates that it is the responsibility of the Supreme Court to direct, govern and administer judicial power, as well as to inspect and oversee the country’s courts and ombudsman’s offices, in addition to presenting and administering its own budget and the budget of the Judicial Branch.

d.         The Citizen Power branch [Poder Ciudadano]

37.       The Citizen Power branch comprises the Office of the Attorney General, the Office of the Ombudsman and the Office of the Comptroller General, whose holders together comprise the Republican Morals Council, the direct action arm of the Citizen Power branch. [20]

38.       The fundamental characteristic of this Branch is its independence from the other branches of government, and its organs enjoy functional and administrative autonomy.  Under the Constitution, it is assigned powers to prevent, punish and investigate acts which contravene public ethics and the administrative morals.  In addition, it is empowered to ensure the proper management and legitimate use of public assets, as well as compliance with and the application of the principle of legality in all administrative activities of the State.[21]

39.       Another of the specific powers of this authority involves the formulation of warnings regarding the failure of relevant authorities to fulfill their obligations.[22]  To this end, all organizations are expected to co-operate with the Republican Morals Council in carrying out their functions and investigations.[23]

i.          Office of the Ombudsman

40.       This organ of the State is directed by the Human Rights Ombudsman.  The Ombudsman is responsible for the defense and oversight of the rights and guarantees established in the Constitution and international treaties on human rights, in addition to the legitimate, joint and several interests of the citizens.[24]

41.       The Office of the Human Rights Ombudsman is an official unit that addresses demands and complaints by the public regarding the actions of the administration and government officials. In performing this role, the Office has the following functions: the protection of human rights, control of the government bureaucracy, contribution to the correction or redress of administrative injustices, informing the Government of inconsistencies in its administration.[25]

ii.          The Public Ministry [Ministerio Público]

42.       The Public Ministry is under the direction and responsibility of the Attorney General of the Republic. Its principal responsibilities include ensuring the observance of constitutional rights and guarantees in judicial process, and of treaties signed by the Republic, safeguarding due process and the right to trial in a timely manner; ordering and directing criminal investigations, a power exclusive to the Public Ministry, and carrying out the legal actions required to establish any liability incurred by government officials in the exercise of their functions.[26]

iii.         The Office of the Comptroller General of the Republic

43.       The Office of the Comptroller General of the Republic is under the direction of the Comptroller General. It is the agency responsible for controlling, monitoring, and auditing revenue, expenditure, public property and national assets, and any related operations.  It enjoys functional, administrative and organizational autonomy.[27]

44.       Its functions involve controlling, monitoring and auditing government revenue, expenditure, and assets and any related transactions, overseeing the national debt, instructing the Attorney General of the Republic to take pertinent legal action in the case of infractions and crimes against the public interest, exercising effective management control over the public policies of the public sector agencies, institutions, and legal entities subject to its oversight.[28]

e.         The Electoral Branch

45.       Electoral power is exercised by the National Electoral Council. The agencies that are constitutionally subordinate to the Council are the National Electoral Board, the Vital Statistics and Voter Registration Commission and the Commission on Political Participation and Financing.[29]

46.       The main functions of electoral branch are the regulation of electoral laws and the clarification of any doubts and loopholes these may contain; total or partial invalidation of elections; organization, administration and monitoring of all acts related to elected government office representing the people, and referendums.[30]  Furthermore, the agencies of the electoral branch are obliged to guarantee the equality, reliability, impartiality, transparency and efficiency of the electoral processes. Moreover, these agencies are governed by the principles of organizational transparency, functional and budgetary autonomy, non-partisanship regarding electoral organizations, impartiality and citizen participation.

47.       In relation to the composition of the Board of Directors of this agency, the failure to appoint the fifth and final member produced a vacancy that prevented the Board from performing its tasks normally for several months. In light of the delay by the National Assembly in proceeding to appoint electoral directors in accordance with its constitutional mandate, the Supreme Court of Justice established a deadline for completion of this exercise.

48.       In response to the failure of the legislature to reach an agreement, the judges of the Constitutional Division of the Supreme Court proceeded to appoint the members of the Board of Directors of the electoral entity and its subordinate agencies by a ruling dated August 25, 2003. The pertinent part of that ruling provides that:

6)         In accordance with the foregoing, the Court appoints as First Principal Director Oscar Battaglini González, whose alternates 1 and 2 shall be Germán Yépez and Orietta Caponi, respectively; as Second Principal Director Jorge Rodríguez Gómez, with Estefanía de Talavera and Esther Gauthier Torres as alternates 3 and 4, respectively; as Third Principal Director Francisco Carrasquero López, whose alternates 5 and 6 shall be Tibisay Lucena and Manuel Rachadell, respectively..

All these appointments are made in accordance with Article 13 of the Electoral Branch Act.

Sobella Mejías and Ezequiel Zamora are appointed as Fourth and Fifth Principal Directors, respectively; with their alternates being Carlos Aguilar and Carlos Castillo in the first instance; and Miriam Kornblith Sonnenschein and Carolina Jaimes in the second. 

Dr. Francisco Carrasquero López is named President of the National Electoral Council, and Ezequiel Zamora Vice-President.

Dr. William Pacheco is appointed Secretary of the National Electoral Council.

Dr. Andrés Brito is appointed Legal Counsel to the National Electoral Council.

7) Members of the subordinate agencies are appointed as follows: to the National Electoral Board, Jorge Rodríguez, Tibisay Lucena and Ezequiel Zamora; to the Vital Statistics and Voter Registration Commission, Sobella Mejías, Carlos Aguilar and Oscar Battaglini G; to the Commission on Political Participation and Financing, Francisco Carrasquero López, Carlos Castillo and Oscar Battaglini.

8) Carlos Delgado Chapellín, Teodoro Petkof Malek, Hernando Grisanti Aveledo and Guillermo García Ponce are appointed members of the Council for Political Participation.[31]

49.       The Commission took note of these appointments that permitted the resolution of the vacancy which had arisen.

3.         The new Constitution and Human Rights

a.         Rights directly established in the Constitution

50.       The new Constitution of the Bolivarian Republic of Venezuela establishes the principle of Constitutional Supremacy in Article 7, which states that the Constitution is the foundation of the legal system and the highest legal standard of the Republic. In addition, Article 19 of the Constitution provides that the State must guarantee to all persons, in accordance with the principle of progressivity and without discrimination, the enjoyment and exercise of inalienable, indivisible and interdependent human rights.  Title III also presents a detailed series of civil, political, economic, social and cultural rights, notably the right to life, personal freedom, due process, property, freedom of expression, freedom of assembly and association, equality, protection of children, indigenous rights, health, education, freedom of religion and conscience, environmental rights and the right to the work. The Constitution also establishes a series of guarantees, such as habeas corpus, constitutional protection [amparo], and habeas data.

51.       The entry into force of the new Constitution involved the introduction into the national legal system of a number of institutions that are of great value in terms of the defense and protection of human rights in a democratic society.  Very important rules were introduced to more soundly shape the Venezuelan State as a democratic state centered on the dignity of human beings. However, some of the changes are in fact a regression.  

52.       Among the most innovative aspects are the inclusion in the Constitution of treaties on human rights,[32] the obligation of the State to legally investigate and punish crimes against human rights,[33] the limitation of military justice, the imprescriptibility of crimes against human rights, the exclusion of serious human rights violations from acts of pardon and amnesty,[34] the right to address petitions or complaints to international agencies created for such purposes,[35] the obligation to indemnify victims of human rights violations,[36] the requirement that the Venezuelan State adopt, in accordance with the procedures established in the Constitution and laws, the measures necessary to comply with decisions handed down by the international organizations.[37]

53.       The new Constitution also establishes important special rules on human rights, such as Chapter VIII on the rights of the Indigenous Peoples, Chapter IX on Environmental Rights and Chapters VI and VII on Social, Economic and Cultural rights, the prohibition stated in Article 45 in relation to the forced disappearance of persons,[38] as well as the creation of new institutions dedicated to the protection of human rights such as the Human Rights Ombudsman and the Constitutional Division of the Supreme Court of Justice.

54.       In the normative sense, the Commission views as positive the above-mentioned constitutional reforms and considers them an important advance in the protection of the human rights in the country.

55.       However, it is the view of the Commission that the new constitutional text also includes some loss of ground in the area of human rights, which may pose problems for the rule of law. One such step backward is the required pre-trial of the merits prior to the investigation of crime involving senior officials of the Armed Forces, which could represent a weakening of the standards of due process regarding the guarantee of equal treatment.

56.       The creation of the Office of the Comptroller General of the National Armed Forces without proper clarification of its relationship with the Office of the Comptroller General of the Republic is a constitutional regulation that does not ensure the required independence and autonomy of such organizations and, in addition, may make the monitoring of the military by civilian authorities more difficult (Article 291). Also, the participation of the National Electoral Council in union elections is a clear violation of the right to union freedom.  One can also point to the establishment of the right to timely, truthful and impartial information (Article 58) which has been the object of criticism, including from this Commission, as will be discussed later on with reference to issues of freedom of expression.

57.       Article 203 of the Constitution includes the concept of enabling laws and provides for the delegation of legislative powers to the President of the Republic, without establishing clear and defined limits on the nature of this delegation.[39]  Such regulation tacitly allows for the creation of criminal law by rulings from the Executive and not the National Assembly, in contradiction with the requirements of the American Convention on Human Rights.  Such action represents an erosion of the guaranteed "requirement of law" [reserva legal] developed by the Inter-American system.[40]

58.       Furthermore, the new text of the Constitution does provide, in certain specific cases, checks and balances to control the exercise of public power that ensure balanced power sharing to guarantee the observance of human rights. For example, there is a notable lack of control and limits on the exercise of the legislative power by the Executive.

b.         The Incorporation of International Protection in Domestic Law

59.       An aspect of singular importance in the new Venezuelan Constitution is the attribution of constitutional ranking to international treaties on human rights.  The Constitution establishes in Article 23 that ”Treaties, pacts and conventions relating to human rights, signed and ratified by Venezuela have constitutional rank and prevail over domestic legislation, insofar as they contain provisions for the enjoyment and exercise of such rights that are more favorable than those established by this Constitution and the laws of the Republic, and shall be immediately and directly applied by courts and the organs of public power. ". The Commission considers it pertinent to indicate that this standard establishes the precedence of treaties, pacts and conventions on human rights and their immediate and direct application by the organs that exercise public power.

60.       According to Article 22 of the Constitution, "The articulation of the rights enshrined in this Constitution and in human rights instruments shall not be taken to negate ant rights inherent to individuals, which are expressly stated in such texts.  The absence of a law regulating these rights shall not impinge on their exercise". Article 25 of this instrument also indicates that any act taken in the exercise of public authority that violates or impinges on the rights guaranteed by the Constitution and the law is null and void, and that the government officials who order or carry out such acts shall incur criminal, civil and administrative liability.

61.       Article 31 of the Constitution states that “All persons have the right, under the terms established by human rights treaties, pacts and conventions ratified by the Republic, to submit petitions or complaints to international agencies created for such purposes, with the objective of requesting protection of their human rights.  The Venezuelan State is committed to adopting, in accordance with the procedures stipulated in this Constitution and the law, the measures necessary for enforcing decisions emanating from international agencies, as provided in this Article.”

4.         Venezuela and international treaties on human rights

a.         Regional System (OAS) Treaties

62.       The Venezuelan State has ratified the large majority of treaties on human rights and both additional protocols that have been signed within the framework of the OAS.  Venezuela is a party to: the American Convention on Human Rights; the Additional Protocol to the American Convention on Human Rights in Relation to Economic, Social and Cultural Rights, “Protocol of San Salvador”; the Protocol to the American Convention on Human Rights in Relation to the Abolition of Capital Punishment; the Inter-American Convention to Prevent and Punish Torture; the Inter-American Convention on the Forced Disappearance of Persons and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women "Convention of Belém do Pará.”  It is important to emphasize that Venezuela accepted the contentious jurisdiction of the Inter-American Court of Human Rights on June 24, 1998.[41]

63.       Although Venezuela signed the Inter-American Convention for the Elimination of all Forms of Discrimination against Persons with Disabilities on June 8, 1999, the State has to date not ratified this Convention. The Commission calls on the State of Venezuela to ratify this instrument at the earliest opportunity.

b.         Universal System (UN) Treaties

64.       Within the framework of the UN, the Venezuelan State is party, among other treaties related to human rights, to the International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights; Convention on the Elimination of All Forms of Discrimination Against Women; Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, and Convention on the Rights of the Child.

            B.         Political Background

65.       In this section the Commission will refer to a number of facts that had an impact on the political-institutional situation of Venezuela and will outline the present democratic institutional situation.

1.       Brief Historical Overview

66.       The development of contemporary democratic politics in Venezuela began in 1958 with the signing of a pact by the maximum leaders of some of the political parties that had contributed to the overthrow of the dictatorship of General Marcos Pérez Jiménez.

67.       This pact was a political agreement signed by three political parties, namely Democratic Action (AD), the Independent Electoral Political Committee (COPEI), and the Democratic Republican Union (URD), by which these parties took the decision to share power and support the government in office from any threat to democracy.[42] To safeguard the political truce and the unity among the democratic organizations, an "Inter-party Commission of Unity” was created to monitor compliance with this agreement. This Commission was charged with coordinating the coexistence of the different parties, to hear complaints against deviations by public figures or sectarian interests in the election campaigns and to approach any of the signatories, and on behalf of all, moderate and control actions which could jeopardize democratic coexistence.[43]  Nevertheless, the URD was excluded during the application of this pact, and the political history of Venezuela has since been characterized by bipartisan political dynamics that saw power change hands between AD and COPEI for more than two decades.

68.       This agreement, signed in Caracas on October 31, 1958, was widely known as the "Pacto de Punto Fijo", and its most significant political product was the Constitution of 1961. This Constitution, born out the fervor of establishing democracy, would remain in force until 1999 when the new legal and constitutional body was approved.

69.       This first fissures in this long period of democratic stability would begin to appear at the end of the 80s and the beginning of the 90s.  On February 16, 1989, then President Carlos Andrés Peréz, announced a series of economic adjustment measures to refinance the external debt, which were put in practice from February 27. These measures caused widespread social discontent that was expressed in a series of disturbances in the city of Guarenas, in the State of Miranda. These disturbances then spread to other metropolitan areas such as Caricuao, La Guaira, Maracay, Valencia, Barquisimeto, Guayana, Mérida and Maracaibo. The disturbances consisted mainly the burning of urban transport vehicles and the looting and destruction of businesses, acts which inflicted substantial damage to public and private property.

70.       The Executive assigned responsibility for the control of the situation to the military forces and on February 28, 1989 issued decree No.49 declaring the suspension of constitutional guarantees.  During the 23 days that this suspension of guarantees lasted and, in particular from March 1, 1989, the Armed Forces were in control of the territory and the population of Venezuela. During this exceptional period, the security organs of the State, in conjunction with the Metropolitan Police, deployed a number of operations to suppress acts of violence. The results of the events of February and March of 1989, according to official figures, were 276 fatalities, numerous injuries, several disappearances and substantial material losses. This massive protest and its violent repression are known as the "Caracazo".[44]

71.       Also of note is the case of the town of El Amparo which occurred in October 1988, when 16 resident fishermen set out on a fishing expedition, heading towards the La Colorada channel through the Araucan river located in the Páez District of the State of Apure. At approximately noon, they stopped and some fishermen disembarked, when military and police personnel from the José Antonio Páez Special Commando Unit, who at that time were engaged in a military operation called “Anguila III”, killed 14 of the 16 fishermen. This case was submitted to the Inter-American Court, which, in a ruling dated January 18, 1995, declared the end of deliberations on the facts of the case and the international liability of the Venezuelan State, given the State’s recognition of its responsibility for the acts committed.[45]

72.       Years later two attempts at a coup d’état took place.  The first of them took place on February 4, 1992.  In the early morning on this day, the military group MBR 200--Movimiento Bolivariano Revolucionario (Bolivarian Revolutionary Movement), headed by Commanders Hugo Chávez Frías, Francisco Javier Arias Cárdenas, Jesús Urdaneta and Noé Acosta, unsuccessfully attempted a coup d’état against President Carlos Andrés Pérez.  By mid-morning, the Government had managed to bring the situation under control.

73.       Some months later, on November 27, another unsuccessful coup attempt took place, and officials of the Venezuelan Army were forced to flee to Peru.  The tragic events at the Catia Judicial Detention and Internment Center occurred within the context of the second military coup attempt.  According to the information received, shortly after hearing by radio of the attempted coup the prison guards opened the jail doors announcing that the prisoners were free. The event caused much chaos and confusion in the detention center. In order to restore order and to handle the situation the National Guard and the Metropolitan Police intervened, firing shots and throwing tear gas bombs at the inmates. Some 63 inmates died in the incident and their deaths have not yet been explained by the national authorities nor have criminal and administrative responsibility for these acts been established.

74.       Notwithstanding the seriousness of the violence and human rights violations previously described, the democratic experience in Venezuela continued uninterrupted until the events of April 12, 2002, when another coup d’état was attempted.

2.         Political Context: Progressive Polarization

75.       The political atmosphere in Venezuela was characterized by a notable trend towards political polarization that began in the early months of 2002.  This has led to a current atmosphere of tension and polarization of political positions in Venezuela, and is also manifested in the politicization of the different state institutions and sectors of the society.

76.       In the interest of providing a contextual framework for the political situation, certain circumstances must be considered.  On November 7, 2002, the National Assembly, by means of an enabling act, granted special powers to President Chávez to legislate on economic and social matters as well as public administration.  Opposition to the Government began to establish itself at the end of 2001 in response to the promulgation, by means of presidential decree under the enabling act, of 49 economic decrees with measures such as agrarian reform and the tightening of official controls on the oil industry, that were not well received by some sectors.[46]  The disapproval of these sectors was expressed socially in the form of a national protest held on December 10, 2001.

77.       There was also intense mobilization around multiple social and political demands.  More specifically, labor disputes that emerged in three key sectors—health, education and the oil industry—played a decisive role in later events.

78.       The labor dispute in the oil sector was the most notorious given the importance of that sector in Venezuela and its subsequent repercussions. The appointment by President Hugo Chávez of a new president of the state oil company, Petróleos de Venezuela (PDVSA) and a new board of directors triggered a series of protests by employees of the company, who expressed their disagreement by continually holding demonstrations outside PDVSA’s administrative offices.

79.       These protest actions increased in the month of March, initiating intermittent shut-downs of the different refineries and oil plants.[47]  On April 9, during the fifth week of the dispute, the Confederation of Workers of Venezuela and Fedecámaras called for a 24-hour strike in solidarity with the oil sector protest, an objective that was tied to demands for the President to resign.[48]  On the following day the strike was extended for a further 24 hours and on April 11, when the situation appeared to be returning to normalcy as businesses began to open to their doors to the public and some services, such as transportation and banking, began to operate, an indefinite strike was declared.[49] 

80.       On April 11, a mass march called by an umbrella organization of the opposition forces, which would later come to be known as the Democratic Coordination, traveled from the Parque del Este towards Chuao. The demonstrators soon proceeded to Miraflores to demand the President’s resignation.[50]  There they encountered pro-government groups that had been camped near the Palace for the three consecutive days.

81.       The result of that encounter was a confrontation that occurred in the city center and involved clashes of the Metropolitan Police, the National Guard, and demonstrators in favor of and in opposition to the Government.[51] The Commission has graphic evidence and the eyewitnesses reports indicating the existence of suspected snipers located on the terraces of buildings adjacent to the avenues where the events took place. It should be noted that some of the buildings indicated belong to the state agencies.[52] There is also graphic evidence of the participation of armed individuals shooting indiscriminately at demonstrators, especially from the Llaguno bridge.

82.       The preliminary findings of the IACHR, based on the various testimonies and information received, indicate that armed civilians participated in the opposition march and the pro-government demonstration organized in downtown Caracas on April 11, and that there were serious problems of coordination between the National Guard, the Metropolitan Police and the state police that took part in the event, as will be described in a subsequent section.

83.       The day produced tragic results. Information received on this matter indicates almost 19 deaths and a large number of wounded. The Commission observes that up to the moment of the preparation of the present report there are no official data with respect to the exact number of victims, nor with respect to the circumstances in which each death occurred.  According to the preliminary report of special delegates of the Attorney General of the Republic, there were 19 victims.[53]  On the other hand, data obtained by the Committee of Relatives of Victims of the Events of February-March 1989 (COFAVIC), indicate 17 deaths.[54]  In the Preliminary Report on the events of April 2002, prepared by the Office of the Human Rights Ombudsman, 19 cases are documented.[55]  

84.       In that connection, the Commission reiterates that although it is not responsible for establishing facts and the responsibilities to which they gave rise, it does note with concern that responsibility for the deaths and injuries of April 11 has not yet been established and that more than a year later, the investigations have not advanced significantly. It is especially worrisome that the large majority of the victims expressed great distrust of the authorities entrusted with carrying out the judicial investigations, feeling that there would be a lack of serious investigative action and transparency. With that in mind, the IACHR stresses to the State its international obligation to investigate and punish those responsible for the events.

a.         The coup d’état

85.       Following the violence of April 11, military officials blamed the Government for the acts of violence that took place.  At dawn on Friday April 12, President Hugo Chávez Frías was detained by a group of military personnel.  The mass media communicated a message from Inspector General of the National Armed Forces (FAN), General-in-Chief Lucas Rincón which stated: "the President’s resignation was requested and he acceded."[56]  The president was transferred to Fort Tiuna, a military detachment of the General Command of the Venezuelan Army.

86.       The military sector that spoke out against the President of the Republic, along with a group of civilians, constituted the self-appointed "Government of Democratic Transition and National Unity,"[57] and in the face of the claimed vacancy of presidential authority, they proclaimed the principal representative of the Confederation of Chambers and Associations of Commerce (Fedecámaras), Mr. Pedro Carmona Estanga, Acting President of the Republic.[58]  Attorney General of the Republic, Dr Isaías Rodríguez, announced to the media[59] that there was no proof of the President’s resignation.  He thus characterized the events as a constitutional coup d’état.

87.       In the afternoon of April 12, in an act signed at Miraflores, a decree was read to the Nation appointing the new Government, the branches of government were dissolved and control granted to the Acting President over all legally constituted institutions and authorities.  In effect the National Assembly and the Supreme Court of Justice were dissolved and the Constitution of 1999 repealed. In a press release, the Commission described this situation as a breach of constitutional order and urged Venezuela to a return to the rule of law and a democratic system of government that would ensure the full observance of human rights and fundamental freedoms.[60]

88.       The citizens began to demonstrate their condemnation of the institutional breakdown. A large mass of people gradually began to gather in the streets of Caracas, as well as in various cities of the interior. In the demonstrations, that began to grow in strength from April 13, protestors called for adherence to the Constitution and release of the President.[61]  These gatherings ended in alarming circumstances; various acts of violence were witnessed in which Venezuelan citizens were killed. This renewed outbreak of violence claimed more than 40 lives.[62]

89.       Some of the military units that did not support the Coup d’état began to proclaim their support for President Chávez. In the face of growing popular and military pressure, on the night of the April 13, Mr. Pedro Carmona Estanga resigned from the presidency.  The President of the National Assembly, William Lara, accompanied by the representatives of the Citizen Power branch, the Attorney General of the Republic, the Comptroller General of the Republic and the Ombudsman, swore in Vice-President Diosdado Cabello as Interim President to cover the legal void until President Chávez, who had been released, returned to the power.  At dawn on Sunday April 14, President Hugo Chávez Farías returned to the Miraflores Palace, transported by personnel of the army belonging to the airborne division, and resumed office.

            90.       Acts of vandalism continued throughout the day on April 14 in various areas of the capital, and it was only during the hours of the night that law and order were restored.  The Commission has received information indicating that during April 12, 13 and 14, when institutional rupture occurred, there were a heightened number of raids of homes and irregular arrests of people and officials linked to the “Chavista movement”. Such is the case of Minister Rodríguez Chacín, who was arrested on the April 12 by the Municipal Police of Chacao and Baruta.  Upon his arrest he was struck and insulted by residents of the area. Also notable is the case of Tarek Wiliam Saab, a National Assemblyman of the Fifth Republic Movement Party, who was arrested by the political police (DISIP) without a warrant and was rescued by the Municipal Police of Hatillo after a group of people, presumably from the opposition, surrounded his residence threatening his personal safety.

91.       The Preliminary Report of the Office of the Human Rights Ombudsman indicates that at this time various security groups carried out raids and arrests of officials of the overthrown government, citizens loyal to the government and community mass media. In addition, in the states of Anzoátegui, Miranda, Portuguesa, Nueva Esparta, Vargas, Táchira, Mérida and Barinas, groups presumably in opposition to the deposed government conducted demonstrations demanding the resignation of governors and mayors associated with that government, also causing acts of violence.[63]

92.       Specifically, during this period the NGO Provea recorded 82 complaints from groups and individuals of violations of the right to personal integrity (206 victims).  It also reported that of the total number of reports 35% were of cases of cruel or degrading treatment or punishment (72 victims), 22% (46 victims) of physical injury and 2% cases of torture (5).  In addition, 19 cases of raids affecting 34 persons (17%) and 18 complaints of threats or harassment affecting 49 people (24%) were recorded.

93.       In addition, the preliminary report of the Office of the Human Rights Ombudsman on the events of April reports 24 complaints of violations of personal integrity, including 10 cases of torture and 9 illegal raids.  The Report indicates that at least 398 people were injured by firearms, pellets, etc. on April 11, 12, 13, and 14.[64]

94.       The Commission notes that in the brief period in which a de facto government was in place not only were the branches of government dissolved but was of repression against military personnel loyal to the government of President Chávez were witnessed, as was the persecution of its ministers and close allies.  

95.       Once  law and order were restored, President Chávez expressed that the events which had occurred required in-depth analysis and called for a national dialogue via the establishment of forums for dialogue. In addition, the National Assembly took the decision to form a Truth Commission, which would be charged with the investigation of the facts.

96.       Thus the National Assembly approved the draft bill on the Truth Commission on May 14, 2002, during the first discussion, and conducted a budgetary study and appointed a Special Commission responsible for preparing a report for a second and final discussion. This Commission comprised three members of the pro-government parliamentary block, three members of the opposition and three members of the Liaison Commission. This Commission presented to the Secretariat of the National Assembly a report on the submission of a Truth Commission bill to a second debate in plenary session by the National Assembly.[65]

97.       The IACHR has always supported Truth Commissions in the different countries of the hemisphere in which they have been created, insofar as they represent a suitable mechanism for assuring the right to the truth.  As indicated previously, the Truth Commission can make a very important contribution to Venezuelan democracy in terms of guaranteeing that the investigation on the April events is conducted in such a manner that its conclusions be accepted by all, and that those responsible are punished accordingly.

98.       Despite this, the IACHR reiterates that this or other Truth Commissions or investigations do not relieve the State of its obligation to investigate and prosecute the persons responsible for human rights violations. More than a year after the events, the Truth Commission is yet to become operational. In that connection, the IACHR has been informed that the parliamentary debates to establish the commission have been suspended after two proposals were hotly debated between May and September 2002 without arrival at definitive consensus.

99.       With respect to the progress of investigations within the domestic legal jurisdiction, the Commission notes that at the time of the preparation of the present report, with exception of the cases of the deaths of Ruddy Alfonso Urbano and Erasmo Sánchez for which 8 officers of the Metropolitan Police were accused and charged, those responsible have not be condemned and investigations have had few results. More specifically, the Commission has been informed that up to April 12, 2003, 31 people had been held responsible for the acts that occurred from April 11 to 14, 2002 and 11 had been charged. Among those specifically accused in relation to events of April 11 are Henry Atencio and Rafael Cabrices, both leaders of the Fifth Republic Movement; Richard Peñalver, Councilman of the Fifth Republic Movement; Nicholás Creek, a Radio Perola host and journalist were, among others, accused of firing shots from the Llaguno Bridge. Hearings against these individuals began on June 25, 2003 in the Maracay courts.  Since the Office of the Attorney General first took the case to the courts, eight judges have heard the case until the trial was eventually moved to the Fourth Magistrates Court of Maracay in the State of Aragua by order of the Criminal Division of the Court of Justice. Initially, the charge against these individuals was homicide by complicity, but that charge was opposed on grounds that there was no evidence linking the defendants’ weapons with the projectiles that caused the injuries and deaths on the April 11. On this basis, the four accused were charged by the Public Ministry with the commission of crimes of public intimidation and the illegal use of firearms.  Richard Peñalver was also charged with the illegal use of military weapons.  At the time of the preparation of the report, the Commission was informed that the Fourth Magistrates Court of Maracay had acquitted the defendants of the charges made against them in the Llaguno Bridge case I a judgment published on September 30, 2003.  The Commission has not received information on other trials, investigations or progress related to the events of April 2002.

100.     Finally, the IACHR stresses the necessity and urgency of an in-depth, unbiased, and independent investigation of the crimes committed and the establishment of responsibility and punishment for the events of April 2002. In particular, it is necessary to investigate the identities of those responsible for ordering, encouraging or allowing armed persons or civilian groups to join mass mobilizations, and of those who tried to cover up and cast a veil of silence on those acts of violence. In addition, all the victims of violence must be able to seek justice using the current procedural mechanisms. The pursuit of justice in these cases is an obligation of the holders of public office in Venezuela, not only to honor those victims, but also to demonstrate their commitment to continued institutional building and consolidation of the rule of law.

b.         Subsequent Events

101.     The Commission has been informed of acts involving situations of violence and confrontation between different sectors since April 2002, which include murders, permanent injury, and acts of harassment and intimidation.[66]

102.     On April 14, 2002, constitutional order having been restored, Vice-Admiral Héctor Ramírez Pérez, Rear-Admirals Carlos Molina Tamayo and Daniel Comisso, Brigadier General Pedro Pereira, Colonel Isidro Pérez Villalobos and Pedro Carmona Estango were called to testify before the Public Ministry. Pursuant to this, the Office of the Attorney General of the Republic asked the Supreme Court of Justice to initiate the pre-trial of the merits regarding senior officials who participated in the April coup.[67]

103.     From July 31,2002 a series of demonstrations were launched with the aim of influencing the judges with regard to the request by the Office of the Attorney General of the Republic for pre-trial of the merits for the senior officials that participated in the April events.  During these demonstrations, in which several sectors of society participated, violent confrontations again took place, resulting in injury of at least 19 people.[68]   In view of the fact that no judgment was handed down, the disturbances continued on to August 1 and 2. The number of demonstrators swelled to fill the area surrounding the Supreme Court.

104.     On August 8 violence again broke out in the areas adjacent to the Supreme Court, as well as in downtown Caracas. During that day, the Defense Commission confirmed injuries to 18 people at nearby first aid centers.  Fourteen persons were wounded, 12 of which had gunshot wounds.[69]

105.     Finally, on August 14, 2002 the Supreme Court of Justice dismissed the charges against four senior army officials accused of conspiring to overthrow President Chávez in April, declaring that there were no grounds for a trial.  On the matter, the Commission considers that the pre-trial of the merits, as an institution incorporated by the new Constitution facilitates impunity, as has become evident in the aforementioned decision.

106.     In reaction to the dismissal of these charges, several groups gathered in the vicinity of the Supreme Court, in particular on Avenida Baralt, and began to stone and physically attack personnel of the National Guard that were protecting the court, who dispersed the protestors using teargas bombs.[70]  Twelve persons were wounded in the confrontation, and the Radio Caracas Televisión cameraman Antonio José Monroy was shot in the left leg. Two members of the National Guard were reported wounded by gunfire.[71]

107.     Following this event, on September 19, 2002, the National Executive established 8 security zones by decrees 1968, 1969, 1970, 1971, 1972, 1973 and 1974,[72] which restricted freedom of movement and the right to demonstrate in the environs of six major military facilities, a state radio station and the main office of a state-owned television.  The opposition and human rights groups questioned the constitutionality of the measures based on a law from 1976, which although repealed by the National Security Act passed on December 18, 2002, left in place the earlier legislation governing security zones. In this regard, the Commission considers that the establishment of these security zones for an unduly prolonged period of time infringes the principles of proportionality and reasonableness, since this measure, which is exceptional by definition, runs the risk of weakening of fundamental rights in certain specific circumstances.  The IACHR notes that at the time of writing of this report these measures remain in place.

108.     On November 4, opposition and Government supporters once again clashed between Plaza Francia and the National Electoral Council. Pro-government demonstrators attempted to prevent the representatives of the opposition from submitting to Electoral Council a signed petition for a consultative referendum on the resignation of President Hugo Chávez. In this instance several people were injured, among them an Ecuadorian camera operator who survived gunshots by using a bulletproof vest. On the basis of this request, the Steering Committee of the National Electoral Council ordered the conduct of a consultative referendum on February 2, 2003.

109.     Under these circumstances, the Commission condemns the acts of December 6, 2002 in the Plaza Francia which claimed the lives of three persons. In that regard, the Commission acknowledges the efforts of the State to hear and investigate the present case.  On April 14, 2003, the 45^th Criminal Court sentenced one Mr. De Gouveia to 29 years and 11 months of imprisonment for these killings.

110.     The Commission also finds reprehensible the events of the demonstration of January 4, 2003. In this instance a large number of demonstrators called upon by the opposition converged from various points of the city on the Próceres, a National Monument, with the intent of continuing protests against the Government. This demonstration led to a confrontation between opposition and pro-government groups. The Military Police, the Metropolitan Police and the National Guard intervened to reestablish order. This confrontation left two dead and eight wounded, all by gunfire. Information was also received with respect to the death of Carlos Abel García Arrieta, which occurred on January 20, 2003, during a similar confrontation in the state of Miranda.

111.     The dangerous escalation of violence was also reflected in bomb attacks against the diplomatic offices of Colombia and Spain in Caracas, and against oil facilities in the state of Zulia, all of which occurred in March 2003.  In addition, in the dawn hours of Saturday April 12, 2003, the Caracas Teleport Tower, the site of the Working Forum for Negotiation, was the object of an attack using explosives. The materials that caused the explosion were placed in an external column of the building. Two persons, a watchman from the López H.H. company and a maintenance technician, were rescued from the building by firemen and survived the incident. The basement where negotiating table meetings were held was considerably damaged and the access elevator totally destroyed. These attacks did not involve the loss of human lives but they represent a serious demonstration of deepening violence in Venezuela.

112.     Another recent manifestation of violence was the murder of the political leader of the pro-government party Patria para Todos, Jorge Nieves, who was assassinated at midday in the town of Guasdualito, Apure. Mr. Nieves was shot four times while parking the vehicle he was using upon his return from a pro-Government rally.

113.     On Thursday May 1, 2003, at the end of a march in celebration of Labor Day called by the Democratic Coordination and the Confederation of Venezuelan Workers (CTV) in the area of Plaza O’Leary in Caracas a clash occurred between different political sectors of the opposition and the Government that resulted in the wounding of six people and the death of Ricardo Herrera by two gunshots. The police and military cordons posted to prevent the march from reaching Miraflores were unable to prevent the verbal confrontation that ended in an exchange of blows, stones, pellets and gunfire with the aforementioned consequences.

114.     Recently, on May 24, 2003, at around 11 a.m., while persons participating in the so-called “Reconquista del Oeste”, a demonstration called by the opposition, were gathering in calle Perú de Catia in Caracas, shooting erupted among the demonstrators that left one person dead and 20 wounded. According to reports from different mass media outlets, a group of people were firing arms of various calibers from adjacent buildings. In response, the Vice-Minister of Justice and the Interior, Mr. Alcides Rondón, announced that the Penal, Criminal and Scientific Investigations taskforce would initiate the necessary investigations in Catia to determine the persons responsible for these acts.

c.         The National Strike

115.     On December 2, 2002 a national strike was called by the Democratic Coordination, a political movement that comprises various sectors of the opposition, the CTV and Fedecámaras.  The stated purpose of the strike was to pressure the Government into seeking a resolution to the Venezuelan crisis at the polls, by holding a referendum on the continuation of President Hugo Chávez’s term of office in February 2003, and to hold elections subsequently, if necessary. The strike was also called to express objection to the intervention of the Metropolitan Police and the militarization of the major cities of the country.

116.     Numerous sectors of the Venezuelan economy took part in the strike; notable among them was the fuel transport sector, the Venezuelan oil company and the gas supply company. These kept production and service provision to a minimum, resulting in the total unavailability of the commodity in some states. In the case of the PDVSA, significant losses were publicly reported. The shut-down of the industrial sector was widespread; on the other hand, the commercial sector’s response to the strike was mixed; activity varied from day to day and from one area of the country to another. Urban transit operated normally and rural transit functioned to the extent that access to fuel permitted.

117.     It is important to mention that the national strike generated a series of effects that had direct repercussions on the Venezuelan population. According to public reports, prices increased by 90%, especially in the case of basic goods, some of which experienced shortages.  Education was also seriously affected. As a result of the strike, both private and public schools and training centers remained closed.  In addition, some health centers faced shortages of medical supplies.

118.     Over the two-month period in which the national strike continued, demonstrations and rallies were held on a daily basis by various sectors to present their claims and make demands.

119.     The national civic strike remained in effect until February 3, 2003, when the nature of the action taken was changed from a general protest to a partial stoppage by decision of each sector of the economy. In that connection, the Secretary of the Confederation of Venezuelan Workers, Manuel Cova, declared that all sectors that had participated in the strike had received instructions to gradually resume their activities as of Monday, February 3 on restricted schedules to relax the national strike until it was finally ended. The measure was approved by the Democratic Coordination in response to a request from the delegates of the Group of Friends of Venezuela.

d.         The Search for Solutions

120.     In this atmosphere of political polarization, the Working Forum for Dialogue and Negotiation (Mesa de Negociación y Acuerdos) was established on November 8, 2002, between the Government of the Bolivarian Republic of Venezuela and Coordinadora Democrática as a mechanism for arriving at conciliation. This forum began to discuss questions such as the entrenchment of violence in the country and solutions to the Venezuelan crisis.

121.     The Working Forum for Dialogue and Negotiation, that continued to function until May 29, 2003, comprised six representatives of the Government, Executive Vice-President, José Vicente Rangel, Foreign Minister Roy Chaderton Matos, Minister of Labor, Maria Cristina Iglesias, Minister of Education, Aristóbulo Istúriz, Governor of Táchira, Ronald Blanco La Cruz, Deputy Nicolás Maduro and Omar Meza Ramírez as legal counsel. It also comprised six representatives of Coordinadora Democrática, which represented various sectors of the opposition (civil society, CTV, Fedecámaras, political parties and governors). The Secretary General of the OAS, Dr. César Gaviria, played the role of International Facilitator in this initiative and was responsible for publication of the official report on the development and progress of the working forum. The committee also received technical support from the OAS, the Carter Center and the United Nations Development Programme (UNDP).

122.     The objective of this undertaking was primarily to establish channels of permanent dialogue between the different sectors to produce agreements that allow for the resolution of the country’s crisis by electoral means, and also to reach a consensus on strengthening the electoral system, disarming the civilian population and installing and activating the Truth Commission.[73] The work accomplished and results produced while it was in operation demonstrated that the Working Forum for Negotiation was indeed the mechanism best suited to dialogue between the parties, which was very significant in a context of sharp political polarization in Venezuela.

123.     The OAS indicated that the political crisis in Venezuela should be resolved by “constitutional, peaceful, democratic and electoral means within the context of the Working Forum for Dialogue and Negotiation.”[74]

124.     Based on these guidelines, the alternatives for an electoral resolution to the crisis that the opposition had initially proposed included the following:

a.      a consultative referendum at the people’s initiative, to consult the voters on a request for the President to resign voluntarily, so that new presidential elections can be called in the following thirty days;

b.       a constitutional amendment by popular initiative to shorten the presidential term to four   years and to hold elections immediately;

c.       holding the referendum to recall the President by popular demand starting August 19,2003; and

d.       convening a National Constituent Assembly at the initiative of the people.

125.     In reference to the consultative referendum proposed by the National Electoral Council for February 2, 2003, the Constitutional Division of the Supreme Court on January 22, 2003 declared inadmissible a constitutional injunction against the legality of the referendum. The Court indicated that this mechanism was in accordance with the Constitution but that its effects were not legally binding as regards the resignation of the President. On the same day, the Electoral Division of the Supreme Court of Justice issued another judgment granting a constitutional injunction suspending any such electoral process.

126.     This decision by the Court on January 22, 2003, suspended the referendum and ordered the present Board of Directors of the National Electoral Council to:

abstain from performing acts which are not essential for guaranteeing the normal administrative functioning of that body, and in particular, to abstain from initiating organized electoral processes, referenda, or other mechanisms of citizen participation in public affairs, and to suspend any such processes already initiated, until the present dispute has been resolved.[75]

127.     The decision of the Electoral Division was not the result of the requests presented before the Constitutional Court questioning the legality of the execution of the referendum per se. The request to which it responded in the judgment outlined above was related to the existing contention with respect to the reinstatement of a member of the Board of Directors of the National Electoral Council who had resigned from his position. The judgment established that until such time as a specific case on the subject in dispute is heard, the board of the Electoral Council would be suspended and unable to perform any acts other than administrative functions.

128.     Reacting to the ruling of the Supreme Court, some groups called a twenty-four hour protest in opposition to the judgment.[76]  On Saturday, January 25, 2003 sectors of the opposition congregated in a mass demonstration on the Francisco Fajardo Freeway in response to this call.

129.     With the possibility of a consultative referendum quashed on February 2 by the ruling cited above, participants of the Working Forum for Negotiation continued discussions on the viability of the remaining alternatives for resolving the institutional crisis, but in the absence of specific work proposals, certain difficulties were encountered in the dialogue between the parties, which delayed the results.

130.     On January 21, 2003, ex-President of the United States, James Carter, presented two proposals to the Working Forum for Negotiation for resolving the institutional crisis. The proposals included a constitutional amendment that would shorten the term served by the president and members of the National Assembly, or, if need be, provide for a referendum to revoke the president’s mandate. The proposals required as a necessary condition for both measures, ending the ongoing national civic strike. Subsequent to this, the Working Forum began work on the proposals presented, concentrating its efforts there.

            131.     In accordance with the proposal presented and in the face of the suspension of the consultative referendum by the Supreme Court, Coordinadora Democrática called for the holding, on February 2, 2003, of an event called "El Firmazo".[77]   Its main purpose was the collection of signatures from citizens interested in requesting an electoral amendment to shorten the term of President Hugo Chávez and holding a recall referendum in accordance with the requirements of constitutional standards.

132.     The Venezuelan firm SUMATE undertook the technical organization of the event, the processing of signatures and the training of volunteers. The Commission was informed that certain disturbances and altercations took place on that day.[78]

133.     The results of "El Firmazo" were presented on February 19 during an event organized by Coordinadora Democrática and the SUMATE firm. The results of this event remained unaudited and have not been checked against the database of voters in the Permanent Electoral Registry.[79]

134.     On February 17, 2003, one hundred days after its installation and after completing 42 sessions, the Working Forum for Dialogue and Negotiation produced its first formal agreement between the Government and the opposition in the form of the approval of an eight-point text entitled "Declaration against Violence and for Peace and Democracy".  In the agreement the parties called for “an end to all aggression, threats, harassment or violence that in any form disturbs or prevents the free exercise of the rights enshrined in the Constitution and the law, as well as in international treaties".  The Inter-American Commission applauded the signing of this important agreement that represented a first significant step towards the democratic resolution of the Venezuelan conflict.

135.     On March 11, 2003, the Government delegation to the Forum for Negotiation stated its opposition to a possible constitutional amendment or recall referendum as per the proposal of the former US President, affirming that it did not support amendment of the magna carta for electoral purposes and declared its position in favor of waiting for the right time, according to the Constitution, to hold a recall referendum.

136.     Finally, both parties to the deliberations of the Forum for Negotiation began to discuss questions related to the holding of a recall referendum, an institution provided for in Article 72 of the Venezuelan Constitution. In effect, by means of a referendum, which according to the Constitution can be carried out at the midpoint of the presidential mandate, citizens would vote to keep President Hugo Chávez in office.

137.     Article 72 of the Venezuelan Constitution states:

The terms of office of all popularly-elected officials and magistrates are subject to revocation.  After the midpoint of the official’s term has passed, a number of voters representing no less than twenty percent of the electorate registered in the corresponding constituency can request a referendum to revoke of his/her mandate.  When an equal or greater number of voters than those who elected the official vote in favor of revocation, and where a number of voters equal to or greater than twenty-five percent of the registered electorate have participated in the referendum, the mandate of said official will be considered revoked and immediate steps taken to fill the vacancy as prescribed in this Constitution and the law. During the term to which officials are elected, no more than one request for the revocation of their mandate can be made.

138.     On March 25, 2003, at the request of the Government and the Opposition, the OAS, though its Secretary General, Dr César Gaviria, presented a summary of possible points for negotiation in preparation for said referendum, including questions of procedure related to the elections timetable, financing and the collection of signatures. On this basis, representatives of the Government of Venezuela and Coordinadora Democrática to the Forum for Negotiation announced in Caracas on April 11 their intentions to sign a 22-point agreement “in the interest of finding a path to agreement for the development of the country”. The preliminary agreement drafted in the Forum for Negotiation for signature by the parties emphasizes their willingness to have “the problems of Venezuela solved by Venezuelans and their conviction about the need to find a constitutional, peaceful, democratic and electoral solution”. On April 24, 2003, the Government, after reviewing the text of the preliminary agreement issued by the Forum, submitted a new version with some amendments.

139.     At this point, both parties focused their efforts on drafting a document that pleased both sides, based on the pre-agreement of April 11^th and the document submitted by the Government.  Difficulty was encountered mainly in the fact that the new agreement included points on which major differences existed such as, inter alia, that of electoral assistance from international observers.

140.     One of the major electoral issues under discussion was that of the possibility of using the signatures obtained in "El Firmazo" in a recall referendum, on the understanding that it would be the responsibility of the National Electoral Council to verify the validity of these signatures and to determine whether these could be legally collected prior to the half-way point of the President’s term, in light of the stipulations of Article 72 of the Venezuelan Constitution.  The Supreme Court of Justice ruled on this question indicating that the signatures collected, if their legitimacy could be verified, were indeed valid for the calling the referendum, but it did not discuss the timing of their collection. 

141.     The parties successfully drafted and signed the “Agreement” on May 29, 2003.  In this 19-point document, representatives of the Government and Coordinadora Democrática reiterate their commitment to renounce the use of violence and to follow the principles of the Venezuelan Constitution, and those of the OAS Charter, the Inter-American Democratic Charter and the American Convention on Human Rights. Affirming their commitment to Freedom of expression, they undertake to work with the private and public mass media to promote the objectives established in the new agreement and to help to create a climate conducive to the electoral process.

142.     Of singular importance is the fact that both parties agree that the way to resolve the country’s crisis by the electoral route should be through application of the provisions of the Venezuelan Constitution that provide for holding referendums to revoke the mandate of elected officials who have served half their terms.  Such referendums will have to be requested formally by an established number of voters and approved by the National Electoral Council (CNE), whose members are being decided by the National Assembly.

143.     The Agreement establishes, furthermore, a permanent liaison of Government and opposition representatives, “with the aim of opening channels of communication and taking action to enforce the provisions of the Declaration against Violence and for Peace and Democracy, maintaining contact with international facilitators where deemed necessary.”

144.     On the other hand, it is important to point out that the signature of the Agreement formally ended the work of Working Forum for Dialogue and Negotiation, installed at the beginning of November, with the support of OAS, the Carter Center and the UNDP. The document expressly states that:

We recognize the importance of the support that these institutions can offer in the future for the fulfillment of this Agreement and express our wish to continue international collaboration.

145. The Commission notes the advances that have been made in the process of dialogue between the parties and thus calls on them to proceed in the spirit of tolerance and good faith toward actual compliance with what has been jointly determined as the constitutional solution to the crisis..

146.     In addition, on August 20, 2003, the names collected during “El Firmazo” held on February 2 were presented at the headquarters of the National Electoral Council. Coordinadora Democrática officially delivered 3,236,320 signatures requesting that the National Electoral Council hold a recall referendum in accordance with the provisions of Article 72 of the Constitution of the Republic.[80]  The National Electoral Council will now be required to analyze the validity of the signatures, and, in the event of their validity, establish the pertinent regulations for the holding the recall referendum, as provided in Article 72 of the Constitution.

147.     At the time of the preparation of this report, after appointment of the National Electoral Council by the Supreme Court of Justice, the Board of Directors of this electoral body, on September 12, 2003, declared inadmissible the signatures that had been submitted to it requesting a referendum to recall President Hugo Chávez.

148. The decision under reference states the following in its operative paragraphs:

1.         To declare INADMISSIBLE the requests for a recall referendum submitted on August 20, 2003, inasmuch as the signatures that, in the opinion of the presenting parties, support those requests were signed to far in advance, before the right to a recall referendum arises under Article 72 of the Constitution of the Bolivarian Republic of Venezuela.

2.         To declare INADMISSIBLE requests presented on August 20, 2003, inasmuch as the lists accompanying the request for a referendum to revoke the mandate of President Hugo Rafael Chávez Frías, do not constitute a formal request directed to the Electoral Body but rather a kind of proclamation that is not consistent with legal requirements, thereby violating point 12 of in the aforementioned Agreement between the Government and Opposition and failing to meet the requirements of Article 72 of the Constitution of the Bolivarian Republic of Venezuela, whose scope and limits are explained in the ruling of the Constitutional Division of the Supreme Court of Justice on June 5, 2002, by virtue of which the lists are null and void on the grounds of this resolution.[81]

149.     Following this, on September 25, 2003, the National Electoral Council issued Resolution 030925-465 establishing the rules of procedure for referendums to revoke the mandates of popularly elected officials.  On October 7 of the same year, it established regulations for the membership and registration of those organizations likely to participate in referendums to revoke the mandates of popularly elected officials.  Finally, the Commission was informed that on October 1, 2003 the National Electoral Council declared valid the request made by Coordinadora Democrática for conducting a referendum to recall President Hugo Chávez from office. Furthermore, the CNE declared valid other requests for recall referendums regarding lawmakers, governors and mayors of the opposition as well as of the ruling party.