*Original source http://www.cidh.oas.org/annualrep/2010eng/Chap.IV.VENEZUELA.doc
The Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission,” “the Commission” or the “IACHR”) decided to include the Bolivarian Republic of Venezuela (hereinafter “Venezuela” or “the State”) in Chapter IV of its 2010 Annual Report pursuant to Article 59(1)(h) of its Rules of Procedure. The IACHR based its analysis on information compiled during its hearings and information available from other public sources, as well as information compiled through the mechanisms for protection, cases and precautionary measures. On January 21, 2011 the IACHR forwarded to the State a copy of the preliminary draft of this section of its 2010 Annual Report, as required under Article 59(2) of its Rules of Procedure. It asked that the State send its observations within one month’s time. On February 22, 2011, the Commission received the State’s observations and comments which, whenever relevant, were included in this report.
In its 1997 Annual Report, the Commission explained the five criteria it uses to identify OAS member states whose human rights practices merit special attention. The Commission considers that the Venezuelan situation fits within criterion five, which refers to
[…] structural or temporary situations that may appear in member states confronted, for various reasons, with situations that seriously affect the enjoyment of fundamental rights enshrined in the American Convention or the American Declaration. This criterion includes, for example: grave situations of violence that prevent the proper application of the rule of law; serious institutional crises; processes of institutional change which have negative consequences on human rights; or grave omissions in the adoption of the necessary measures which would provide for the effective exercise of fundamental rights.
The Commission’s most recent visit to Venezuela was in May 2002, following the institutional breakdown in April of that year. After that visit, the Commission published the Report on the Situation of Human Rights in Venezuela in December 2003, in which it made a number of recommendations. Since then, the Commission has been monitoring the status of implementation of those recommendations and compiling firsthand information on the current human rights situation in Venezuela. Accordingly, it has made a number of overtures to request the State’s permission to conduct an observation visit. Thus far, the State has refused to allow the Commission to visit Venezuela, which not only affects the functions assigned to the Commission as one of the OAS’ principal organs for the promotion and protection of human rights, but also seriously weakens the system of protection that the member states of the Organization themselves created.
On December 30, 2009, the Commission approved the report titled Democracy and Human Rights in Venezuela, in which it examined developments in the area of human rights in Venezuela based on the information received in recent years through the Commission’s various mechanisms of protection, such as the case system, the hearings, precautionary measures, the requests petitioning the Court to order provisional measures, inclusion of a country in Chapter IV of its annual reports, and press releases. The Commission also based its analysis on information that the Venezuelan State sent in response to the Commission’s requests, and on the State’s response to the questionnaire on human rights in Venezuela received in August 2009, which the State supplied to the Commission during the latter’s hearings; it also based its analysis on available public information.
In its 2009 report, the Commission examined and expressed concern over the situation of freedom of thought and expression in Venezuela. It observed that the judicial branch’s lack of independence and autonomy from the political branches of government made it one of the weakest pillars in Venezuelan democracy. The Commission also commented on the serious obstacles that human rights defenders encountered in performing their mission and observed that one of the most disturbing aspects of the human rights situation in Venezuela was citizen insecurity. It also commented that the State’s failure to demarcate ancestral indigenous lands has caused disputes over ownership of land, disputes that had taken casualties among the indigenous peoples. The Commission continued to monitor the alarming levels of violence in Venezuelan prisons. In its 2009 report, however, it also highlighted the important headway that the Venezuelan State had made in the area of economic, social and cultural rights, both with the recognition of education, health, housing and universal social security as constitutionally protected rights, and with implementation of policies and measures designed to correct the problems besetting vast sectors of the Venezuelan population.
The Commission would again point out that it is ever ready to engage in dialogue with the government, to discuss the Report’s content and recommendations and to work with it to advance the cause of protecting the human rights of the people of Venezuela.
In this chapter, the Commission will pay particular attention to the issues raised in the report on Democracy and Human Rights in Venezuela.
I. INDEPENDENCE AND SEPARATION OF THE BRANCHES OF GOVERNMENT: THE JUDICIAL BRANCH IN VENEZUELA
The Commission has stated on multiple occassions that the observance of rights and freedoms in a democratic system requires a juridical and institutional order, in which the law takes precedence over the will of the governing, and in which the courts scrutinize the constitutionality and legality of government acts; in other words, it presupposes respect for the rule of law.
The Venezuelan State has said that the Constitution of the Bolivarian Republic of Venezuela provides the mechanisms necessary to ensure the independence of the branches of government. Specifically, Title IV, “Public Power,” establishes the independence of the country’s branches of government; in the rationale section, it sets forth the principle of restrictive competence, whereby those agencies that wield public power may only perform those functions that the Constitution and the law expressly assigns to them.
Using the Venezuelan Constitution as its frame of reference, in its 2009 report the Commission examined –and will examine again in this chapter- whether sufficient guarantees are in place to ensure the judicial branch’s independence from the political branches of government in Venezuela.
The Inter-American Court has emphasized that one of the main purposes of the separation of powers is to guarantee the independence of judges. An independent judicial branch is vital in overseeing the constitutionality of the actions taken by the other branches of government and in its role as the branch of government charged with administering justice.
The Commission has devoted particular attention to the administration of justice in Venezuela, particularly in its 2009 report on Democracy and Human Rights in Venezuela, the Follow-up Report on Compliance by the State of Venezuela with the Recommendations made by the IACHR in its 2003, the reports included under Chapter IV of its Annual Reports, the hearings held during its sessions, and the cases submitted to the Inter-American Court. Through these mechanisms the Commission has expressed its concern over issues affecting the independence and impartiality of the judicial branch, particularly the high percentage of judges and prosecutors who are provisional appointees and the failure to comply with the legal and constitutional procedures when appointing and removing judges and prosecutors. The Commission has also received reports on the executive branch’s alleged interference in court rulings.
The Inter-American Commission has held that the guarantees necessary to ensure correct and independent operation of the judicial branch are found in the mechanisms whereby judges are appointed, the tenure they enjoy in their positions, and their proper professional preparation. Another guarantee that the courts are autonomous from the other branches of government is that they are free from any and all influence, threats or interference, whatever the source.
In its report on Democracy and Human Rights in Venezuela, the Commission looked at the process by which judges and prosecutors are appointed in Venezuela and the provisions governing the selection of judges. As in previous years, in the period from January to October 2010 the Commission continued to receive information on the job stability of so-called temporary and provisional judges, and on the Supreme Court Judicial Commission’s appointment of judges without public competition (245). Of these, 66 are said to be provisional appointments (27%), 70 temporary appointments (29%), and 103 interim appointments (42%); the remaining 6 reportedly fell into other categories (3%). The information supplied to the IACHR shows that 100% of the 245 judicial appointments in that period were not done by the competitive procedures required under Article 255 of the Constitution of the Bolivarian Republic of Venezuela. The Commission also received information in 2010 to the effect that 24.32% of all provisional judges were removed from the bench, as were 21.62% of temporary judges, 27.02% of the judges appointed on the basis of the required competitive examination, 5.40% of interim judges and 21.62% of other judges.
As observed in the Report on Democracy and Human Rights in Venezuela, most of the judicial appointments in 2010 were done by virtue of the establishment of a permanent state of emergency. While the various resolutions either appointing or transferring judges cite articles 255 and 267 of the Constitution of the Bolivarian Republic of Venezuela and the final part of Article 20 of the Organic Law of the Supreme Court of Justice, the appointments are being made in consideration of “the urgent need to cover vacancies arising in the nation’s various courts, in order to prevent the paralysis of judicial proceedings and after an examination of the candidates’ relevant credentials…”
As the Commission has previously observed, the failure to follow the procedures prescribed in the Constitution and the law for judicial appointments and the legal loophole as regards the categories of judges mentioned exposes these officials to possible undue pressure in the exercise of the important function they perform and thus poses a serious threat to the independence of Venezuela’s judiciary. The Commission has also identified another issue that undermines judicial independence: the mechanism whereby judges’ appointments can be revoked. A significant number of judges have been removed from the bench by that method, which means that the terms of the Constitution and the corresponding administrative proceedings have not been observed. As the Commission noted in its 2009 Report on Democracy and Human Rights in Venezuela, in 2010 the appointments of certain judges were revoked by virtue of resolutions issued by the Supreme Court, through its Judicial Commission. Those resolutions made no mention of the reasons why the appointments had been revoked and there is no way to discern whether the judges removed from the bench had the opportunity to defend themselves.
The Inter-American Court has held that the condition sine qua non for the independence of the judiciary is, in addition to the appointment process, the tenure of judges in their seats on the bench. The United Nations Basic Principles on the Independence of the Judiciary stipulate that “the term of office of judges […] shall be adequately secured by law” (Principle 11) and that “judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists” (Principle 12).
In its 2009 Report on Democracy and Human Rights in Venezuela, the Commission observed that in addition to guarantees of tenure, a system must be instituted to hold judges and prosecutors accountable for cases in which fair and correct proceedings have deemed their performance to be improper. The Commission applauded the June 2009 approval of the Code of Ethics for Venezuelan Judges, which established the system for disciplining judges for their conduct. Under that Code, the bodies that would have disciplinary authority over judges would be the Judiciary Disciplinary Tribunal and the Judiciary Disciplinary Court, which are to be composed of three principal judges and their respective alternates. The members of the Judiciary Disciplinary Tribunal and Court are to be elected by the Judicial Electoral Associations, composed in accordance with Article 47 of the Code of Ethics. Nevertheless, the Commission noted that until these disciplinary bodies have been established, the Commission on Functioning and Restructuring of the Judicial System continues to exercise their disciplinary functions, as provided in Transitory Provision One of that Code. The Commission has also expressed concern over the lack of independence of the Commission on Functioning and Restructuring of the Judicial System, whose members can be appointed and removed by the Supreme Court at its sole discretion. Hence, the guarantees necessary to ensure the independence of this disciplinary body’s decisions simply do not exist.
The Commission observes that on August 23, 2010, the State amended Article 61 of the Code of Ethics. That article provides that “[d]uring the investigation, and if deemed advisable for purposes of the investigation, the Judiciary Disciplinary Tribunal may order, on a precautionary basis, a judge’s provisional removal from the bench […].” The Commission considers that the possibility of removing a judge temporarily under the Tribunal´s consideration could raise questions about possible abuse of discretion and engender legal insecurity.
In 2010, the Commission received information to the effect that the Judiciary Disciplinary Tribunal and Court had not been set up, with the result that the Commission on Functioning and Restructuring of the Judicial System is still in charge of suspending and permanently removing judges from the bench.
As for the prosecutors with the Public Prosecutor’s Office, who are freely appointed and removed, the Commission has consistently pointed out that the provisional status of prosecutors and their resulting lack of job stability, could translate into a lack of resolve and follow-through, and a failure to pursue certain lines of investigation in criminal inquiries and to meet deadlines in the investigative phase. The Commission believes that the provisional status of judges and prosecutors in Venezuela could have negative consequences for victims’ rights in criminal proceedings involving human rights violations.
In its Report on Democracy and Human Rights in Venezuela, the Commission stated that according to the information it had received, not one of the 2,644 prosecutors named between 2004 and September 2009 had been appointed on the basis of a public competition and hence were not permanent in their posts. In 2010, the Commission continued to receive information on the provisional appointments of prosecutors. Thus, of a total of 388 appointments, 126 are provisional prosecutors, 245 are assistant interim prosecutors, 10 are alternate prosecutors, 6 are superior court prosecutors, and 1 is an appointment of another type. Appointment of prosecutors in 2010 was done by publishing, in the Official Gazette of the Bolivarian Republic of Venezuela, the resolutions of the Public Prosecutor’s Office in which different persons are appointed to the positions named above, but with no indication of the reason for the appointment.
In addition to the importance of appropriate mechanisms for appointing judges, the right to an independent judiciary also requires that the same principles apply to the appointment of public prosecutors. Thus, the Commission has underscored the importance of a correctly implemented prosecutorial career service given the essential role that the Public Prosecutor’s Office plays in criminal investigations. And so, the independence, impartiality, and suitability of prosecutors must be ensured as a means to guarantee that investigations are effective and that the risk of impunity is eliminated, particularly in cases of human rights violations.
The Commission recalls that among the protections afforded under Article 8 of the American Convention (right to a fair trial) are certain requirements that must be observed to guarantee the independence of the officers of the court. In keeping with the jurisprudence of the European Court and the United Nations Basic Principles on the Independence of the Judiciary, the Inter-American Court has held that States are required to ensure an adequate appointment process, freedom from outside pressure, and tenure in positions.
Based on these guarantees, the Commission observes that the stability of the officers of the court is one of the essential guarantees of due process protected under the American Convention. Under the United Nations Basic Principles on the Independence of the Judiciary, all disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
A. The Supreme Court of Justice
The Commission notes that Resolution 2010-0011 of the Supreme Court of Justice, published on May 14, granted “… the retirement benefits to each and every justice on the Supreme Court who, as of the date of the resolution, meets all the legal and regulatory requirements to choose for that benefit and files to receive it.” Under that resolution, “justices on the Supreme Court who have been granted the retirement benefit may remain on the bench provided the constitutional term to which they were appointed has not ended or until the National Assembly appoints new justices to the Supreme Court. A justice may also opt to retire before the constitutional term to which he or she was appointed has ended.”
The Supreme Court of Venezuela has a total of 32 permanent justices, divided among 6 different chambers. A majority of the 32 justices were selected in 2001, one year after Venezuela’s current Constitution was enacted and published; a second group was selected in 2004 after publication of the Organic Law of the Supreme Court of Justice, which increased the number of justices from 20 to 32. The Commission recalls that in its Follow-up Report on Compliance by the State of Venezuela with the Recommendations Made by the IACHR in Its 2003 Report on the Situation of Human Rights in Venezuela, it had observed that the amendment of the provisions of the Organic Law of the Supreme Court was said to have made it possible to “pack” the Court in 2004 with justices sympathetic to the government. The Executive Branch was reportedly able to manipulate the election of justices. It also pointed out that the 49 justices elected (17 full justices and 32 alternates) were said to be sympathetic to the government. Two of the new justices elected were sitting parliamentarians for the government’s majority party in the National Assembly.
Because Article 264 of the Constitution provides that justices shall remain on the bench for a term of 12 years from the date of their appointment, the terms of the justices elected in 2001 and 2004 would end in 2013 and 2016, respectively. However, based on a resolution recently approved by the Supreme Court of Justice, a considerable number of justices now on the Supreme Court bench could be replaced. According to the information the Commission received during its 140th session, after granting retirement benefits to a number of justices, on October 8, 2010 the law was invoked to issue a new convocation to elect 41 justices. According to the Official Gazette of December 8, 2010, the National Assembly appointed 41 new justices: 9 full justices and 32 alternates.
B. Politically motivated removal and persecution of judges
In its 2009 Report on Democracy and Human Rights in Venezuela, the Commission examined the situation of various judges who were removed from the bench after adopting decisions that did not favor the government’s interests. The public information available suggested that the decision to remove these judges was politically motivated.
In 2010, the Commission continued to receive information on the 31st Judge of the Court of Preliminary Proceedings of the Caracas Metropolitan Area, María Lourdes Afiuni Mora, who on December 10, 2009, decided to substitute the detention measure against citizen Elegio Cedeño with a less onerous precautionary measure, since by that time he had already been held in pretrial detention for over two years (more than the maximum preventive detention of two years allowed under the Organic Code of Criminal Procedure). In making her decision, Judge Afiuni Mora cited Opinion No. 10/2009 (Venezuela) of the UN Human Rights Council’s Working Group on Arbitrary Detention, dated September 1, 2009. In that opinion, the Working Group on Arbitrary Detention declared that Mr. Cedeño’s incarceration was arbitrary based on the fact that he was held in preventive detention for more than the maximum allowed by law.
As the Commission observed in the Report on Democracy and Human Rights in Venezuela and as the United Nations Working Group on Arbitrary Detention pointed out in its opinion of September 3, 2010, Judge Afiuni was arrested together with bailiffs Rafael Rondón and Carlos Lotuffo at the offices of the court, minutes after issuing her decision. The arrests were made by agents with the Public Security Police Force, part of the Directorate of Intelligence and Prevention Services (DISIP, now called SEBIN). The arresting officers did not state the cause for the arrest and did not disclose what authority had ordered the arrest; nor did they show any arrest warrant. The following day, speaking in a preemptive nationwide radio and television broadcast, the President of the Republic, Hugo Chávez, branded the judge a “bandit” and said the following: “I call for toughness against this judge, I even told the president of the Supreme Court [of Justice, Luisa Estela Morales], and I tell the National Assembly: a law must be passed because a judge who frees a bandit is much worse than the bandit himself. It is infinitely more serious than an assassination; therefore, we must apply the maximum penalty against this judge and against others who do this. I call for thirty years in prison in the name of the dignity of the country.” On December 11, 2009, the day after her arrest, Judge Afiuni was advised of the arrest warrant, which mentioned the commission of irregularities that allowed Mr. Cedeño’s release.
On December 12, 2009, the Office of the Public Prosecutor charged the former judge with the commission of crimes of corruption, abuse of authority, complicity in a prison escape and conspiracy to commit crime, under the Law against Corruption, the Criminal Code and the Organic Law against Organized Crime. The judge appointed to replace Judge Afiuni revoked Mr. Cedeño’s release on bail and issued an order for his arrest.
Concerning these events, on December 16, 2009, the Chair of the UN Working Group on Arbitrary Detentions, the Special UN Rapporteur on the Independence of Judges and Lawyers, and the Special UN Rapporteur on the Situation of Human Rights Defenders issued a joint statement on the situation of Judge Afiuni in which they wrote the following: “Reprisals for exercising their constitutionally guaranteed functions and creating a climate of fear among the judiciary and lawyers’ profession serve no purpose except to undermine the rule of law and obstruct justice.” On December 17, 2009, the IACHR sent a request for information to the State after receiving a request seeking precautionary measures for Judge María Lourdes Afiuni Mora on December 15, 2009. The Commission granted precautionary measures for the Judge on January 11, 2010, after receiving information to the effect that she was incarcerated at the National Institute for Women’s Guidance (Instituto Nacional de Orientación Femenina - INOF), the only women’s prison in Venezuela. She was being held together with female inmates whose cases Judge Afiuni was said to have had a hand in deciding; furthermore, on January 3, 2010, a prison riot had allegedly broken out to “burn alive” the beneficiary of these measures. During the riot, a group of female inmates had reportedly attempted to throw gasoline in the sector where Judge Afiuni was being held to set her on fire.
Throughout 2010, the IACHR has received troubling reports on the situation of Judge Afiuni, both when processing the request seeking precautionary measures and in the hearings held during its 138th and 140th sessions. These reports indicated that the judge had been in a “maximum security” cell since January 6, 2010, which means that she is being increasingly isolated. The reports indicate that she has no “access to the prison authorities” and has no way to interact with the prison personnel or the rest of the inmate population. She is reportedly being denied access to a cell that meets the minimum requirements of safety and hygiene, would have been denied food and medicine for two days and would have not been provided with the basic nutritional foods. She reportedly is never permitted to see sunlight as she is removed from her cell for walks by night. The Commission has been told that at INOF, no criteria are followed for classifying inmates according to the degree of danger they pose, and persons being held pending trial are not segregated from those already convicted. It also has been informed that the cellblock in which the judge is being held is where the generally violent inmates are kept to ease tensions elsewhere in the prison.
According to the information made available to the Commission and to the Venezuelan State, at INOF Judge Afiuni is the target of constant threats by a number of inmates, so much so that the psychiatric report that the Director of Basic Rights Protection for the Public Prosecutor’s Office sent to the 50th Criminal Court Judge stated that Judge Afiuni is suffering from a “disorder that is a combination of anxiety and depression,” and suggested psychotherapy and continued pharmacological treatment. In the psychiatric examination, Judge Afiuni reportedly said the following:
[I live] amid so much mental terror … for four months in this cell…here in the prison there are two camps…government and population… I represent … or rather I am identified with the government…and so I am to blame for them being locked up here… of course… not everyone… I have experienced events or situations…terrifying… like for example … one inmate who stood at the door of this cell … screaming …. “I want to suck… judge’s cunt… I find an inmate in the room when I come out of the bathroom… [E]arly in the morning I hear … the inmate in the next cell screaming that they paid her to stab me to death …. to murder me… [T]hey say I’m damned… die, bitch… one time some of the inmates got gasoline … and were planning to pour it into this cell … to burn me alive… [T]hey slipped papers under the cell door … saying they’re going to kill me… they’re going to rape me… they’re going to burn me alive.
During its 140th session, the Commission was told that in March 2010 Judge Afiuni reportedly discovered two lumps near her breast and had filed petitions with the court asking to receive medical treatment in a civilian hospital. The domestic court had reportedly denied her requests on the grounds that the Military Hospital was the appropriate institution to conduct the necessary medical tests. However, her first medical examination at the Military Hospital was not done until June 23, 2010, and the results did not reach the court for more than a month. As of early December 2010, the Commission had still not been informed as to whether the judge was given proper medical treatment by a physician she trusted, which was precisely what happened in the case of the other medical problems that Judge Afiuni suffered during her incarceration, which included cystitis and allergies.
As for visits to Judge Afiuni’s cell, the Commission has received information to the effect that no physicians, priests or international organizations are permitted access to her cell. For example, the World Organization against Torture (OMCT), headquartered in Geneva, was denied access in September 2010. Judge Afiuni’s parents and daughter have denounced that they have been subjected to humiliation when they have gone to the prison; not every attorney on her defense team has been allowed to visit the INOF. The State has offered no explanation whatever for all this. The information report indicates that unlike the other inmates at INOF, a record is kept of every person who visits Judge Afiuni.
The Commission has also learned that since the statements that Judge Afiuni made to a domestic media outlet on November 14, 2010, she has received new threats in prison against her personal integrity. Her attorney has reportedly said that the inmates told the judge that “she was going to get a pat down –even her private parts would be checked- every half hour or every time Globovisión aired the tape of her speaking… and they scream at her… they will set the entire prison population against her.”
Based on this background information and bearing in mind that the State did not answer the requests for information that the Commission made when the precautionary measure was being processed, on August 30, 2010, the Commission petitioned the Inter-American Court asking it to grant provisional measures for Judge Afiuni. These measures were granted by an order of the President of the Court dated December 10, 2010. In the order, the President of the Inter-American Court decided to call upon the Venezuelan State: 1) to adopt forthwith the measures that are necessary and effective to guarantee the life and physical, mental and moral integrity of Mrs. María Lourdes Afiuni and to inform the Court of the measures taken by no later than December 20, 2010; 2) to take the necessary measures so that Mrs. Afiuni is held in a place of detention that is suited to her particular circumstances, given the function she performed as a criminal judge, and taking particular care to provide full guarantees of her security and to ensure observance of her right to receive family and visitors, her attorneys and the physicians who visit her in order to examine her, in the terms described in consideranda twelve; and 3) should Mrs. Afiuni require specialized medical attention, and without prejudice to any care that the physicians attached to the state institutions are able to provide, to take the necessary measures so that she can be seen by physicians of her choosing.
During the course of 2010, the United Nations Human Rights Council’s Working Group on Arbitrary Detention, the European Parliament, the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and the United Nations High Commissioner for Human Rights all issued statements on the case of Judge Afiuni.
As for the criminal case prosecuted against Judge Afiuni, the IACHR was informed that she was formally charged on January 26, 2010. Under Venezuela’s law on criminal procedure, her trial should have started ten days after the preliminary hearing was held. However, the Commission was told that the preliminary hearing was postponed several times before it was finally held on May 17, 2010. In a communication dated February 18, 2011, the Venezuelan State asserted that “the former judge’s judicial guarantees were respected in every judicial proceeding conducted in her case.”
The Commission reiterates that the case of Judge Afiuni sends a strong negative message to society as a whole and to the other judges in the judicial branch, who are not free to adopt decisions that go against the government’s interests; if they do, they run the risk of being removed from the bench, prosecuted and subjected to conditions that violate human dignity.
II. SITUATION OF HUMAN RIGHTS DEFENDERS
In its Report on the Situation of Human Rights Defenders in the Americas (hereinafter “Report on Human Rights Defenders”), published in 2006, the Commission wrote the following:
Human rights defenders play a leading role in the process of pursuing the full attainment of the rule of law and the strengthening of democracy. The IACHR has indicated that the work of human rights defenders, protecting individuals and groups of individuals who are victims of human rights violations, publicly denouncing the injustices that affect large sectors of society, and pointing to the need for citizen oversight of public officials and democratic institutions, among other activities, means they play an irreplaceable role in building a solid and lasting democratic society.
Therefore, the process of democratic strengthening in the hemisphere must include full respect for the work of human rights defenders and States must guarantee the conditions necessary for human rights defenders to be able to engage freely in their activities and must refrain from taking any action that might limit or obstruct their work.
In its 2009 Report on Democracy and Human Rights in Venezuela, the Commission wrote that according to the information it had received, human rights defenders in Venezuela are not only the target of smear campaigns and criminalization campaigns, but are also victims of attacks, threats and harassment, and even murders. This has a ripple effect that affects the observance of human rights in general, as human rights defenders can only work to protect the rights of others when their own rights are properly observed and protected.
Throughout 2010, the Commission received information concerning the murders of human rights defenders, excessive use of force to suppress public demonstrations, and the use of the criminal justice system as a means to obstruct the work of human rights defenders in Venezuela. In the case of the murders of human rights defenders in Venezuela, the situation of the union leaders is particularly concerning. According to the information that civil society provided during the Commission’s 140th session, in the period from June 2009 to May 2010, at least 30 union leaders had died as a result of clashes between unions or infighting within the same union. According to the information the Commission received, there is a pattern in the killings of union leaders: 1) the murderers are contract killings, and 2) the investigations conducted by the authorities move very slowly.
During the 140th session, the Commission was informed of various attacks that human rights defenders had suffered in 2009 and 2010, including: the murder of Mijael Martínez, an activist member of the Lara State Anti-Impunity Victims Committee, which happened in the city of Barquisimeto (state of Lara) on November 26, 2009.
Also during the 140th session, the Commission was informed that organized labor leader Rubén González, Secretary General of the Orinoco Iron Miners’ Union (Sintraferrominera) was taken into custody on September 24, 2009, together with other union members, after heading up a work stoppage at the Orinoco Iron Mine Company to protest the failure to honor commitments made in the collective bargaining agreement. González is still under arrest as of this writing, having been charged with the crimes of conspiracy to commit crime, instigating the commission of criminal acts, restricting the right to work and failure to comply with the special regime governing security zones. The Commission concurs with the International Labour Organisation’s Committee on Freedom of Association observation that “the multiple charges laid against these unionists for activities connected with the exercise of trade union rights” is cause for concern. Subsequently, on November 18, 2010, the ILO’s Governing Body, based on the 358th Report of the Committee on Freedom of Association, asked the Venezuelan Government that Mr. González “be released without delay pending judgment,” which it has not done thus far.
The Commission has also received information concerning the State’s exercise of punitive authority to criminalize human rights defenders in Venezuela and concerning police excesses committed when suppressing peaceful protests. In early March 2010, 300 workers, human rights activists, union leaders and leaders of leftist organizations staged a peaceful demonstration in the city of Maracay in the state of Aragua, to demonstrate their discontent over the economic measures taken by the national government, to defend the collective bargaining contracts and to object to the arbitrary detention of Rubén González, a union leader; they also protested to demand that the assassins of labor leaders Richard Gallardo, Luis Hernández and Carlos Requena be punished. Some 150 police from the Aragua State Regional Police Force immediately suppressed the demonstration by attacking the demonstrators with toxic gases and arresting some 30 people, among them union leaders and three activist members of the Provea research team (Marco Antonio Ponce, Rober Calzadilla and Rafael Uzcátegui); the police also threatened to assault hundreds of demonstrators.
The Commission has previously observed that agents may impose reasonable restraints on demonstrators to ensure that they are peaceful or to contain those who are violent, as well as to disperse demonstrations that become violent and obstructive. However, the actions of the security forces should protect, rather than discourage, the right to assembly and therefore, the rationale for dispersing the demonstration must be the duty to protect people. The law enforcement officers deployed in such contexts must contemplate the safest and quickest methods of dispersal that cause the least harm to the demonstrators.
On March 25, 2010, before the close of its 138th session and based on the information received during that session, the Commission issued a press release expressing its deep concern over the State’s use of its punitive power to criminalize human rights defenders, to make peaceful social protest an offense and to prosecute as criminals those persons whom the authorities regard as political opponents in Venezuela. In its communication of February 18, 2011, the State told the Commission that “if the Maracay police took measures, it was because the demonstration was turning violent.”
In 2010, the Commission received information concerning the situation of Sabino Romero Izarra, a leader [cacique] and activist for the rights of the Yukpa people who had been detained since October 13, 2009, when incidents of violence broke out in the area of the Rio Yaza, Sierra de Perijá, state of Zulia, and who was then prosecuted by the ordinary justice. Cacique Olegario Romero and Wayuu Alexander Fernández, an indigenous person, were also prosecuted in the regular court system, despite the fact that both the 1999 Venezuelan Constitution and the 2005 Organic Law of Indigenous Peoples and Communities recognize the right of indigenous peoples to settle their disputes by their own system of justice.
According to the information supplied to the IACHR, Sabino Romero has been a leading advocate for demarcation of the indigenous territories recognized in the 1999 Venezuelan Constitution, which has thus far not materialized. According to the information received, after being detained Mr. Romero was taken to a Venezuelan Army installation and was brought before the criminal courts of the Zulia State Criminal Law Circuit charged with the crimes of felony murder, attempted murder, association or conspiracy to commit crime and theft of livestock. Mr. Romero was not given the assistance of an interpreter in his language, contrary to the requirements under Venezuelan law. Furthermore, the wife, daughter and other family members of Sabino Romero have reportedly been the target of constant sexual harassment by soldiers from Fort Maroa. He has also been subjected to the Escape Law (Ley de Fuga); his medical examinations have been delayed; what little food he is given is bad; one of the two days he has to visit with his defense attorneys has been eliminated, and he is not allowed to leave the room, not even to sign powers of attorney.
Obstacles to the defense of human rights
Throughout 2010, the Commission continued to receive information on measures taken to discredit and harass human rights defenders. During its 140th session the Commission was told that COFAVIC, an NGO, has been the target of harassment and threats.
The reports received by the IACHR indicate that on May 6, 2010, Rocío San Miguel, Director of the NGO called Citizen Oversight of Security, Defense and the National Armed Forces, publicly denounced that active high ranking members of the National Armed Forces were members of the United Socialist Party of Venezuela [Partido Socialista Unido de Venezuela (PSUV)] against the Constitution. The Commission received information indicating that on the program aligned with the Venezuelan government “La Hojilla” that aired on May 10, she was accused of inciting insurrection and exposing the military to public scorn. On May 11 and 12, on the program aligned with the government “Los Papeles Mandinga,” she was described as “a CIA agent” and her work as a human defender was called into question because she received funding from abroad. According to the information received, all these facts were reported to the Office of the Prosecutor General and the Office of the Ombudsperson. In its communication of February 18, 2011, the State argued that if human rights defenders have the right to play the role of opposition political actors and have their criticisms aired in the social media, then the communications media have the same right to criticize representatives of NGOs, “without claims that such criticism constitutes harassment.”
It was also reported that on May 27, 2010, six individuals on motorcycles without plates, dressed in black jackets, helmets and gloves, and without any identification, appeared in the vicinity of the residence of Humberto Prado, Director of the NGO called Venezuelan Observatory of Prisons, who was also the beneficiary of provisional measures ordered by the Inter-American Court in late 2009 and still in effect. The unidentified persons made attempts to inquire about the exact address of his house, a fact that was documented and reported to the Public Prosecutor’s Office so that a formal investigation into these events might be instituted.
The Commission also received information that on December 16, 2010, Director of the NGO “Espacio Público”, Carlos Correa was beaten when he attended National Assembly with other members of the Venezuelan civil society to present a letter that contained the opinion of Alianza por la Libertad de Expresión” (Alliance for the Liberty of Expression) regarding the modification of various laws related to the exercise of freedom of expression and the proposed “Law authorizing the President of the Republic to issue decrees with the rank, value and force of law, on the subject matters delegated to him” (known as “Ley Habilitante”) which were being discussed at the National Assembly. On December 21, 2010, the Commission requested information to the Venezuelan State under Article 41 of the American Convention, to which the State responded on December 29, 2010.
As previously observed, in the Commission’s view, the statements either made by or tolerated by State officials to discredit human rights defenders have not only violated the honor and dignity of those who have been attacked, but have also served to create adverse conditions and indeed deter the work that human rights defenders perform. Discrediting human rights defenders and their organizations could cause them, for fear of reprisals, to refrain from making public statements critical of government policies, which in turn makes it difficult to engage in debate and arrive at basic agreements regarding the problems besetting the Venezuelan people.
B. The International Cooperation Bill
Addressing the issue of the administrative and financial controls placed on human rights organizations, in its 2009 Report on Democracy and Human Rights in Venezuela the Commission noted with concern that although civil society organizations may be established by foreigners and external financing is allowed, participation by certain organizations in public affairs continues to be restricted based on their financing, their members’ national origin, the type of organization or the absence of laws governing their activity. These restrictions are based on Venezuelan Supreme Court rulings dated June 30, 2000, August 21, 2000 and November 21, 2000. In these rulings, the Venezuelan Supreme Court held that the representative authority of these organizations depends on the size of their membership and they must meet the same prerequisites as political parties. The Supreme Court also held that:
[…]civil society, as considered by the Constituent Assembly, is Venezuelan civil society, wherefrom arises the principle of its general, joint responsibility with the State, and its particular responsibility vis-à-vis the economic, social, political, cultural, geographical, environmental and military arenas. The consequence of this national character is that its representatives may not be foreigners or bodies affiliated with, or led, subsidized, financed, or sustained, either directly or indirectly, by states or by movements or groups influenced by states, nor by cross-border or global associations, groups, or movements that pursue political or economic goals to their own benefit […].
The Commission also underscored its concern over the possible passage of the International Cooperation Bill approved by the National Assembly in June 2006 after the first round of debate. It also observed that a number of civil society organizations had told the State of their concern over the passage of this bill. They include the Forum for Life (a Venezuelan coalition of 14 human rights NGOs) and the social development network SINERGIA, which submitted its observations on the bill to the National Assembly’s Foreign Policy Commission in August 2006.
In 2010 the Commission received information -which the State later confirmed in response to a request for information which the Commission filed under Article 41 of the American Convention- about the existence of a request filed with the Office of the Prosecutor General asking that a criminal investigation be launched into the organizations Espacio Público and the Instituto de Prensa y Sociedad (IPYS) in order to ascertain the source of the funding of their activities, on the premise that their funding came from the United States Department of State, which presumably was a strategic connection with the Venezuelan media for the purpose of undermining the established order. According to this information, the complaint was filed in July 2010, by members of the Movimiento Periodismo Necesario, an organization integrated by revolutionary journalists.
Later, on November 23, 2010, the President addressed a special session of the National Assembly held on the occasion of the “Act of State in Defense of the Homeland’s National Sovereignty and against the Hegemonic Interests of Imperialism”. His speech was carried in a nationwide broadcast from the National Assembly’s Salón Elíptico; he asked the Assembly to create a law banning international funding of political parties and nongovernmental organizations:
"How can we allow political parties, NGOs, counterrevolutionary figures to continue to be funded with millions and millions of Yankee imperialist dollars? These groups then take advantage of our freedom to abuse and violate our constitution and try to destabilize the country. I implore you: toughen the law so that this can be stopped,” the President said.
"That must be the answer to the imperialist aggression, the imperialist threat; we have to radicalize our positions, and not relent,”
The Commission has repeatedly expressed its concern over the renewed efforts to pass the International Cooperation Bill, which was approved at its first debate by the National Assembly in 2006, in the press release issued on July 19, 2006, in Chapter IV of its 2006 Annual Report, in the letter it sent to the State in April 2009 in exercise of its authorities under Article 41 of the American Convention, in its 2009 Report on Democracy and Human Rights in Venezuela, and in its press release of December 3, 2010.
In its communication of February 18, 2011, the State reported that “it is true that the Venezuelan State has been critical of NGOs that accept funding from foreign governments,” which is why a law prohibiting it was enacted.” It observed that in exercise of its constitutional functions, the National Assembly had debated and passed the Defense of National Political Sovereignty and Self-Determination Act, published on December 23, 2010 in the Official Gazette of the Bolivarian Republic of Venezuela No. 39,580. That law “prohibits foreign-government funding of NGOs and political parties.”
The Commission also observes that on Friday, December 17, 2010, the Bolivarian Official Gazette published the “Law authorizing the President of the Republic to issue decrees with the rank, value and force of law, on the subject matters delegated to him.” Known as the “Ley Habilitante” [“Enabling Law”], the new legislation gives the executive branch the ability to make law on the subject of international cooperation for a period of 18 months. As pointed out in press release 122/10, the Commission is concerned that the Enabling Law might seriously compromise the ability of nongovernmental human rights organizations to perform their important functions. In its communication of February 18, 2011, the State wrote that the 1999 Constitution gives the President this authority in its Article 203, which is a legacy passed down from all previous Venezuelan constitutions and a function present in the constitutions of a number of Latin American countries.
As for the possible restrictions that states can impose on human rights organizations’ involvement in public affairs, invoking arbitrary rationales for those restrictions, the IACHR recalls that in its Report on the Situation of Human Rights Defenders in the Americas, it recommended to the states that they refrain “from restricting the means of financing of human rights organizations. The States should allow and facilitate human rights organizations’ access to foreign funds in the context of international cooperation, under conditions of transparency” (Recommendation No. 19). The Commission wishes to underscore the recommendation it made in its report on Democracy and Human Rights in Venezuela, published in 2010, to the effect that Article 203 of Venezuela’s Constitution should be amended; as it now reads, Article 203 allows legislative powers to be delegated to the President of the Republic without establishing clear and unambiguous limits on the nature of that delegation.
C. Registration and establishment of human rights organizations
In its 2009 Report the Commission observed that in connection with the registrations required under domestic law in order to set up an organization whose purpose is to promote and defend human rights, and in order to finance its activities, the State has said that Venezuela’s legal system does not have laws or rules regulating nongovernmental organizations’ financing or use of funds; thus their structure and legal and administrative operations are to conform to the provisions of the Civil Code that are for foundations and nonprofit organizations.
As it had in 2009 -and as reported in the document on Democracy and Human Rights in Venezuela-, the Commission continued to receive information in 2010 to the effect that some civil society organizations have had their rights to freedom of association and participation restricted due to obstacles and difficulties encountered when attempting to register with the competent authorities. The Commission was told that in 2010 officials with the Ministry of the People’s Power for Domestic Relations and Justice denied the request of the newly created Asociación Civil Civilis to legalize its operating statute on the grounds that the document could not make reference to terms like democracy and politicians.
As the Commission has observed, “freedom of association, in the specific case of human rights defenders, is a fundamental tool that makes it possible to fully carry out the work of human rights defenders, who, acting collectively, can achieve a greater impact. Because of this, when a state impedes this right, it not only restricts the freedom of association, but also obstructs the work of promoting and defending human rights.” Thus, any act that tends to impede the association of human rights defenders, or in any way thwarts the purposes for which they have formally associated, is a direct attack on the defense of human rights.
POLITICAL RIGHTS AND PARTICIPATION IN PUBLIC LIFE
The Commission has stated that political rights, understood as being those that recognize and protect the right and the duty of every citizen to participate in his or her country’s political life, are by nature rights that serve to strengthen democracy and political pluralism. The Inter-American Court, for its part, has written that effective exercise of political rights constitutes an end in itself and also a fundamental means that democratic societies possess to guarantee the other human rights established in the Convention.
In its 2009 Report on Democracy and Human Rights in Venezuela, the Commission expressed concern over information it had received suggesting a troubling tendency towards retaliatory measures against persons who made public their disagreement with government policies. This tendency, the Commission observed, affected both the opposition authorities and the citizens who exercised their right to express their disagreement with the policies put forth by the government. That same disturbing tendency continued in 2010.
On March 25, 2010, the Commission issued a press release in which it expressed concern over, among other issues, the use of the State’s punitive power to criminally prosecute persons whom the authorities consider to be political opponents in Venezuela. As observed in the section on freedom of thought and expression of the present chapter (B. Disciplinary, administrative and criminal proceedings against media and journalists), over the course of 2010, three opposition candidates for seats in the National Assembly (Biagio Pillieri, Hernán Claret Pérez Alemán and José Sánchez) were criminally prosecuted, and the former candidate for the governorship of Táchira state (Gustavo Azócar Alcalá) was convicted and sentenced to two years, six months in prison with release on parole and political disqualification.
The Commission has continued to receive allegations to the effect that mechanisms have been created in Venezuela to limit the chances that opposition candidates will have to be elected to office. For example, in May 2010, the “Controlaría General de la República” (CGR) disqualified eight candidates for political office: six opposition candidates and two PSUV candidates, so that they were unable to run in the parliamentary elections held on September 26, 2010. They included: Ramón Martínez and Manuel Rosales, former governors of the states of Sucre and Zulia, and former police chiefs Iván Simonovis, Henry Vivas and Lázaro Forero. Concerning the former governors of the states of Sucre and Zulia, the State reported that these public officials were found guilty of and punished for corruption in office; under the Organic Law of the Office of the Comptroller General of the Republic and the National System of Fiscal Control, they are ineligible to run for popularly elected office. As for former police chiefs Iván Simonovis, Henry Vivas and Lázaro Forero, the State reported that these three persons were convicted in criminal court of having caused the deaths and injuries that occurred in the events of April 11, 2002, during the coup d’état. The Commission must again make the point that political rights are fundamental rights inherent to all persons and are subject only to the limitations expressly established in Article 23, subparagraph 2 of the Convention, to avoid the possibility of discrimination against individuals in the exercise of their political rights.
The Commission was also told that on October 14, 2009, the National Assembly passed the new Organic Law on Election Processes (LOPE), which had reportedly eliminated the constitutional principle of representation of minorities and had left certain election-related questions up to the CNE’s discretion, such as flexible redistricting. It was also reported that LOPE had limited access to information on the electoral register and that fundamental guarantees such as the secret ballot and citizen oversight of the elections had allegedly been set aside. That information also indicates that LOPE would give the advantage to the parties that carry the majority of votes, thereby producing a kind of “over-representation of the majorities, or “winner takes all”.
On September 26, 2010, legislative elections were held in Venezuela with the participation of the principal opposition parties. During the past legislative elections held in 2005 the opposition parties decided to withdraw and called upon voters to boycott the polls, alleging a lack of confidence in the National Electoral Council. The governing party (Partido Socialista Unido de Venezuela – PSUV) won 103 seats and the opposition (united under the Mesa de Unidad Democrática – MUD) won 62 seats.
Furthermore, during the hearing on Democratic Institutions and Human Rights Defenders in Venezuela, the Commission learned of a ruling issued by the Constitutional Chamber of the Supreme Court of Justice (TSJ) in response to the case brought by the civil association “Súmate” seeking nullification of the procedures for convocation of the referendum on amendment of the Constitution, held in 2009. The Commission was told that the mentioned court ruling denied “Súmate” its “legal standing” based on the fact that it engages in activities related to democracy, the rule of law, or any of the “guiding principles of the Venezuelan State”, its participation in the “public debate, so as to influence the Nation’s domestic policy”, and receiving funding from an entity associated with another State. The ruling reads as follows:
[…] the political life of the Nation […] can be undermined by factors exogenous to the reality of a given State, such as the activity of organizations that are ideologically, organically and functionally associated with foreign interests, which back such organizations for the sake of furthering their own particular interests and to influence public policy and create conditions conducive to their expansionist ambitions in the economic and political realm.
[…] to keep the sovereignty of the Republic fully protected, and to safeguard its independence and the duty of the organs of the State not to subordinate themselves to a foreign power (articles 1 and 5 of the Constitution), this Chamber, in order to ensure that the functions of the State are carried out unilaterally for the benefit of private citizens and not the interests of another State, in keeping with Article 19.6 of the Organic Law that governs the functions of this High Court, finds that the “Civil Association SÚMATE does not have standing to file this nullification complaint, as it does not have legal standing to defend foreign interests over matters of domestic policy (…)”.
Based on the information it has received the Commission reiterates its concern over the possibility that restrictions on the exercise of political rights without discrimination could be set up in Venezuela. The Commission urges the State to create the appropriate conditions and mechanisms so that political rights can be effectively exercised in observance of the principle of equality and nondiscrimination.
THE RIGHTS TO LIFE, TO HUMANE TREATMENT, TO PERSONAL INTEGRITY AND TO PERSONAL LIBERTY AND SECURITY
In its 2009 Report on Democracy and Human Rights in Venezuela, the Commission observed that the violence in Venezuela affects all its citizens, who must contend with acts of common and organized crime, and the excessive use of force on the part of law enforcement authorities. Violence takes a particular toll on those persons who are in the custody of the State, held in prisons and detention centers, where thousands of persons have been wounded and killed in recent years.
A. Violence and citizen security
The Commission has observed on multiples occasions that Sates must take measures not only to protect their citizens from the human rights violations committed by agents of the State, but also to prevent and punish acts of violence among private citizens. The Commission has also spoken about the states’ obligations in connection with the actions of non-state agents involved in organized crime, corruption, drug trafficking, etc. Since a lack of security directly affects people’s ability to fully enjoy their basic rights, the Commission has also underscored the importance of addressing citizen security and respect for and observance of human rights, and of taking effective measures to prevent, control and reduce crime and violence.
The information the Commission received during its 140th session suggests that the social violence in Venezuela continues to rise in alarming fashion, affecting the lives of Venezuelans in every quarter and in every social stratum. According to a study done by the Instituto Nacional de Estadísticas [National Institute of Statistics], violence claimed 19,133 lives in 2009; as of June 2010 5,186 people had been killed in 10 of the country’s 24 states. In Caracas alone, there were 2,513 murders in the first half of 2010 (an average of 419 per month). Nationwide studies show that 72% of the murder victims are between 15 and 29 years of age and 90% are male. In over 60% of the cases, the crimes occur near the victim’s home; 63% of the murders are committed with firearms and the persons killed sustain on average 5 bullet wounds.
On May 18, 2010, Elvis Mendoza Carvajal, the beneficiary of IACHR precautionary measures since October 2002, was murdered by officers with the Portuguesa State Police Force. He had been shot a number of times.
One situation that the IACHR has followed closely is that of the Barrios family. Since 1998, six members of the Barrios family have been murdered and at least five of those murders were extrajudicial executions perpetrated by Aragua State police officers. The Commission brought the case of the Barrios family to the Inter-American Court of Human Rights in the first half of 2010 and learned later that on September 1, 2010, Wilmer José Flores Barrios had been murdered. The Commission condemned the murder and made the following observations:
The Inter-American Commission and Court of Human Rights have followed this situation through all available mechanisms (requests for information, precautionary and provisional measures, Commission reports on admissibility and on the merits, and submission of an application to the Inter-American Court), but the Venezuelan State has not adopted the necessary measures to protect the life of the members of this family, who continue to be targets of assassination, detention, raids, threats and harassment. Moreover, the State has not ordered an effective investigation of these crimes, which remain in impunity.
The Inter-American Commission requested that the State of Venezuela adopt the necessary measures to protect the life and integrity of the members of the Barrios family, but the State never implemented measures to protect them. Similarly, the protection measures ordered by the Inter-American Court in November 2004 were never implemented either; another three members of the family were killed since these have been in force.
In its Resolution dated February 4, 2010, the Inter-American Court referred to “the State’s failure to comply with the measures ordered by the Court” and described the situation as one “of extreme gravity and urgency that puts in grave risk the life and integrity” of the members of the family.
The Inter-American Commission views as extremely serious that the State of Venezuela had not adopted effective protection measures even though since at least 2004 it has had full knowledge of the extrajudicial executions that had begun to be carried out against members of the Barrios family.
The IACHR recalls that it is the obligation of the State to investigate on its own initiative events of this nature and to punish those responsible. Moreover, the IACHR once again urges the Venezuelan State to immediately adopt all necessary measures to guarantee the right to life, integrity and security of the surviving members of this family.
The Commission has received information to the effect that the principal victims of the violence are children and adolescents. UNICEF reported that homicide is the main cause of death among young males between the ages of 15 and 19. A study done by Cecodap, an organization that promotes and protects the human rights of children and adolescents, found that between 2008 and 2009, the press reported 3,231 cases of physical aggression against this population group. The first category of physical aggression was homicide, which claimed a total of 585 victims. These were killings for the purpose of ‘settling accounts’, murders committed in the course of robberies or altercations, by stray bullets, in gang violence, execution-style killings, children killed when caught in the line of fire, children killed in clashes with police, cases of manslaughter and filicide (cases in which parents killed their own children). There were also 367 cases in which children were abducted and held in prisons (called “autosecuestros” or “self-kidnappings”, these happen when family members are retained inside the prisons after visiting hours are over), 311 victims of sexual violence, 137 wounded by firearms and 128 kidnapping victims. Another study done by the Miranda State Government found that 90% of 1,221 children interviewed in school settings were of the view that the greatest danger was within their communities; 77% felt that the danger within the community prevented them from doing things like going out to play or going out with the family.
The State acknowledged that violence is high in Venezuela, but said that this is a global problem and that no country is spared.
Given the panorama for citizen security in Venezuela, the Commission is of the view that the measures taken by the State have been inadequate and insufficient, as it indicated in the 2009 Report on Democracy and Human Rights in Venezuela.
In its Report on Democracy and Human Rights in Venezuela, the Commission made reference to the Organic Law of the Bolivarian National Armed Forces (LFANB), enacted in October 2009, which provides that the civilian population can be armed and receive military training to defend the political interests of the government. Under this law, the Bolivarian Militia was created –which was part of the rejected constitutional reform. It is defined as an “armed corps” to assist the Bolivarian National Armed Forces in organizing territorial militias and corps of civilian combatants in public agencies, the private sector, social organizations and communities.
During its 140th Session, the Commission received information to the effect that in January 2010, the Frente Socialista de Trabajadores de Petróleos de Venezuela [Venezuelan Oil Workers’ Socialist Front] (PDVSA) reportedly had close to 150,000 workers organized into militias within the state-run companies in the oil, electric power, construction and transportation sectors, and in basic businesses. The Commission was told that some labor oversight offices refuse to approve collective bargaining contracts in those businesses that cannot show proof that their workers are organized into militias or are PSUV militants. The Instituto Nacional de Capacitación y Educación Socialista [National Socialist Training and Education Institute] (INCES), the Ribas Mission, the Instituto de Prevención, Condiciones y Medio Ambiente de Trabajo [Institute on Prevention, Working Conditions and Environment] (INPSASEL) and the INCE-Militar, provide military training to those workers who want to join the workers’ militias.
In March 2010, the Ministry of Women’s Issues and Gender Equality began to form “combatant corps” within that ministry, its affiliated institutions, and the Mission (or program) called Madres del Barrio, all with the support of the Office of the General Command of the Bolivarian National Militia. These groups are defined as “a solid and cohesive rapid-response corps, highly trained and skilled, composed of decent men and women loyal to the Nation and using defense tactics, measures and actions to take on any threat to the interests of the homeland, both in peacetime and time of conflict.” On July 26, the Minister of Women’s Affairs, María León, reported that 1200 women combatants had taken the oath in August. She went on to say the following: “… we’re going to swear in 20,000, then 200,000, and then two million female militia members (…) moving beyond the boundaries of gender to build a community of interests between men and women, expressed in the form of mutual respect, consideration and support.”
The Commission has also learned that in April, the Office of the Prosecutor General created its own “combatants corps”, which is attached to the “Batalla de la Victoria Reserve Battalion” at Fort Tiuna, with support from the Office of the National Coordinator of Combatant Corps of the Bolivarian National Militia, under Colonel Carlos Colombani Lanz.
April 13 was declared the “Day of the Bolivarian National Militia of the People in Arms and the April Revolution,” at an official ceremony held to commemorate the events of April 2002. At the official ceremony, the Minister of Public Works and Housing said that the goal was to organize 200,000 people to take on anyone who might attempt another coup d’état.
The State, for its part, told the IACHR that any Venezuelan who wanted to volunteer to join the Militia was welcome to do so. Nevertheless, it denied that some labor oversight offices had refused to approve collective bargaining contracts in businesses that could not show proof that their workers were organized into militias or were PSUV militants. The State confirmed that every ministry has its own combatant corps of the Bolivarian Militia and that membership was voluntary.
As it did in its 2009 Report on Democracy and Human Rights in Venezuela, the Commission must once again point out that it is deeply troubled by the fact that citizens are receiving military training through the Bolivarian National Militia and then returning to civilian life to cooperate in maintaining domestic law and order. The IACHR again emphatically states that military training is not appropriate for controlling domestic security and that combating violence on the domestic front must be the exclusive purview of a properly trained police force that is fully respectful of human rights. In the Commission’s view, citizens who receive military training must not be used for domestic defense, nor should society’s role vis-à-vis national security be misrepresented or misconstrued.
B. The prison situation
In 2010, the Commission continued to monitor the insecurity and violence in Venezuelan prisons. In its 2009 Report on Democracy and Human Rights in Venezuela, the Commission wrote that apart from a proper regulatory framework for prisons, the implementation of specific measures and policies to immediately ease the perils that persons deprived of their liberty face is also urgently needed. The Commission observed that the State’s obligation vis-à-vis prison inmates is more than a matter of enacting laws to protect them; nor is it enough for State agents to refrain from actions that might result in violations of the inmates’ rights to life and physical integrity. International human rights law demands that States take every measure they can to guarantee the life and personal integrity of persons deprived of liberty.
During the Commission’s 140th Session, two hearings were held at which the Inter-American Commission received information on the levels of violence inside Venezuela’s prisons. It was reported that the number of deaths in Venezuelan prisons is 25% higher than it was in 2009; until October 2010, there have been 352 deaths in the country’s prisons. The number of injured is up by 31% over last year; through the third quarter of 2010 a total of 736 injuries had been recorded. Civil society organizations told the Commission that the State did not effectively manage and police the prisons; that corruption was rampant and that criminal gangs were often in control.
Thus far this year, the Commission has issued four press releases -Nos. 10/10, 27/10, 50/10 and 110/10– in which it expressed deep concern over the serious episodes of violence in various prisons, such as: the “La Planta” Re-Education and Work Prison (“El Paraíso”), in Caracas; the Yare I Capital Region Penitentiary, in Caracas; the Western Penitentiary in the state of Táchira, and the Central-West Regional Penitentiary (Uribana Prison), in the state of Lara. In all these cases, the press releases were basically issued because of episodes in which inmates met violent deaths, or episodes involving aberrant acts of physical aggression of the kind practiced among the inmate population in what is known as “The Coliseum” in the Uribana Prison. In these press releases, the Commission consistently referenced the fact that as guarantor of the lives and personal integrity of those persons it deprives of liberty, the State has an unavoidable duty to take concrete measures to protect the lives and person of those deprived of liberty, both from the actions of State agents and those of private third parties. The Commission emphatically reiterates that the State has the duty to exercise effective control of prisons, to confiscate weapons and other illegal goods and to stop the influx of such weapons and goods into the prisons, and to combat acts of corruption committed by prison personnel and the National Guard.
As for the mechanisms of protection, in October 2010 the Commission asked the Inter-American Court to grant provisional measures at the Aragua Penitentiary (“Tocorón Prison”) because of the seriousness and urgency of the situation that resulted when a fight broke out among the inmates that left more than 16 inmates dead and at least 36 injured. This event was not an isolated episode. According to the information provided, between 2008 and 2010 84 inmates have died at that prison. The Inter-American Court granted the provisional measures on November 1, 2010.
The State acknowledged that it has serious prison problems. Nevertheless, its contention is that Venezuela’s are not the worst prisons, when compared with other member countries of the Organization of American States, and that poverty in the hemisphere, citizen insecurity and the increase in the prison population are interrelated problems.
The Commission is alarmed by the fact that gang fights in Venezuelan prisons have taken on such senseless proportions and that inmates are in possession of and routinely use high-caliber firearms, grenades and weapons of all kinds. The Commission observes that prisons are confined places and are the sole and exclusive responsibility of the State.
But violations of the rights to life and to humane treat are not the only threats to persons in the custody of the State. The more than 43,000 persons deprived of liberty in Venezuela are also contending with delays in the proceedings against them, overcrowding in prison and the lack of basic services in prisons.
The Commission once again emphasizes that given the urgency and immediacy of the situation in the Venezuelan prisons, the Venezuelan State must take measures that will immediately ease the danger and threats that detainees in the State’s custody face. The IACHR therefore urges the State to immediately take the measures necessary to bring detention conditions in Venezuelan prisons in line with international standards and to take immediate steps to ensure the lives and person of prison inmates in Venezuela, over and above any medium-or long-term plans it might have in this regard.
Other situations that persons in the custody of the State endure
On January 11, 2010, the IACHR granted precautionary measures for Franklin José Brito Rodríguez, a farmer and owner of a small property in the state of Bolívar. He was engaging in a hunger strike to get back the land of which he claimed to have been unlawfully dispossessed by Venezuelan government agencies. In the request for precautionary measures, it was alleged that early on the morning of December 13, 2009, Caracas Metropolitan Police officers had taken Franklin José Brito to the Military Hospital against his will and as he was staging a hunger strike in front the OAS offices in Caracas. Mr. Brito said that he had been unlawfully deprived of his personal liberty as he was confined to the hospital against his will. The Commission was told that on January 6, 2010, Mr. Brito was still in the Military Hospital and was not permitted to see a physician of his choosing. It was also told that on January 9, 2010, State officials allegedly sedated him by force and transferred him again. The Inter-American Commission asked the Venezuelan State to take the necessary measures to permit a physician of Mr. Brito’s choosing to visit him, treat him and monitor his health situation, so as to ensure that Mr. Brito receives regular visits. The Commission continued to monitor the beneficiary’s situation by means of various requests for information from the State, until the day of the beneficiary’s death on August 30, 2010.
C. The LGTBI population
During the Commission’s 140th Session, the IACHR received information concerning the increase in the number of assaults and extortion by police and military against lesbians, gays, bisexuals, transsexuals, transgender and intersexual persons in Venezuela, which materialize in the form of: physical assaults, verbal assaults, moral assaults and combinations of verbal, physical and moral assaults, as well extortion in which the victims are required to hand over money or even perform sexual acts as a condition for their release or to avoid being charged with alleged drug possession or indecent acts. According to the information provided, victims do not report police and military harassment for fear of direct reprisals and because in most cases the officials involved show no documentation or identification, thereby making it impossible for the victims to file effective complaints. According to the information supplied by the Venezuelan organization Diversidad e Igualdad a través de la Ley [Organization for Diversity and Equality by Law] (DIVERLEX), 84% of transsexual persons have reported police aggression.
The International Gay and Lesbian Human Rights Commission reported that on October 9, 2009, Yonatan Matheus and Omarliv Márquez, members of the organization Venezuela Diversa A.C., were arbitrarily detained by Caracas police when they tried to obtain information and film police procedure. The police detained 19 gays and lesbians, 11 of whom were minors; police confiscated their documents and cell phones and the other detainees were taken to Policaracas station in Cota 905. It reported that this is just one of the many arbitrary arrests made of members of the LGTB community, as part of the “Operation Safe Caracas” campaign whose objective is to wipe out crime. It also reported that the police pursue and abuse persons whose sexual orientation and/or gender identity differs from the social norms.
On October 2, 2010, Venezuela Diversa A.C. reported that the work its members do is becoming increasingly more dangerous and that its Director General, Yonatan Matheus, was again detained by officers with the Metropolitan Police Force’s Motorcycle Brigade, as he was doing his routine rounds to monitor the human rights of transsexual persons who work the streets. It also reported that discrimination and exclusion based on sexual orientation and gender identity are on the rise in Venezuela, as the State is taking no affirmative actions to stop these situations. They called upon the Ombudsperson to take action and instruct officials with the Ombudsperson’s Delegate in Caracas to remain alert for cases of this type; they also called upon the Minister of People’s Power for Domestic Affairs and Justice to continue to purge the police forces and establish blame for the systematic human rights violations committed by some officers in the Metropolitan Police Force.
The Commission was informed that hate crimes (murders, rapes and physical assaults) are not being investigated and there are no statistics on the matter: in cases of deceased male transsexuals, the medical examiner’s reports state simply that the individual is a “male”, without any clarification that would expose a hate crime.
The Commission received information to the effect that the LGTBI population in Venezuela cannot acquire a legal identity that matches their gender identity. The Commission was told that on May 17, 2004, a constitutional petition was filed seeking direct recognition of rights (direct protection) with a writ of habeas data to implement the ruling; the petition has been re-filed 27 times, but the Constitutional Chamber of the Supreme Court thus far has not issued any decision on the case, not even on the petition’s admissibility.
For its part, the State asserted that “this is another human rights issue for every country in the world” and is the product of a cultural situation that all states are gradually working to resolve. It observed that Venezuela has public policies in place for these matters, above all with respect to police and military.
The IACHR would remind the Venezuelan Government that the right of all persons to live free of any form of discrimination is guaranteed by international human rights law, and specifically by the American Convention on Human Rights. The Commission urges Venezuela to take urgent measures to prevent and respond to these human rights abuses, including the adoption of public policy measures and campaigns against discrimination based on sexual orientation, as well as amendments to the laws to bring them in line with the American Convention on Human Rights.
Freedom of thought and expression
The Commission notes that notes that Rafael Segundo Pérez, a former Carabobo state police officer, was sentenced to 25 years in prison after being convicted of the crimes of contract killing and conspiracy to commit crime, all in connection with the murder of journalist Orel Zambrano. The Carabobo Sixth Examining Court delivered the sentence on May 19. According to the information received, the journalist was murdered on January 16, 2009, in the city of Valencia. Orel Zambrano was director of the political magazine ABC, an editorial writer for the newspaper Notitarde and vice president of a private radio station, Radio América 890 AM. According to the reports received, the journalist had reported that members of the Makled family, in the state of Carabobo, were allegedly involved in the drug trafficking business. In August, Colombian authorities detained the alleged Venezuelan drug trafficker Walid Makled. In November, President Juan Manuel Santas promised the Venezuelan State that the suspect would be swiftly extradited to stand trial for his links to a number of murders, one of which was that of Orel Zambrano. Two other persons are also being prosecuted in Venezuela for their involvement in the journalist’s murder.
The Commission also notes that on August 12, the Zulia State Legislative Council unanimously approved the Zulia State Transparency and Information Access Act. According to the wording of the first article of that law, the law is intended to facilitate citizen oversight of state public affairs, to ensure that personal information is properly protected within the state government, and enable persons to participate in decision-making and oversight of the business of government in the state of Zulia.
A. Acts of aggression presumably related to the practice of journalism
The Commission is troubled by a number of incidents in which State agents or private citizens allegedly behaved aggressively toward persons working in the communications business during coverage of the news. According to information received, on June 7 a group of motorcyclists allegedly hurled five Molotov cocktails at the Torre de la Prensa (Press Building), headquarters of Cadena Capriles in Caracas. Cadena Capriles publishes newspapers, magazines and hosts news portals. Although the explosive devices never detonated, they did alarm the workers in the building. No organization claimed responsibility for the attack. According to what the IACHR was told, on June 8 the Public Prosecutor’s Office launched an investigation and performed technical tests and procedures at the scene of the incident. In August 2009, a number of journalists working for Capriles had allegedly been the victims of violent assaults, presumably by government sympathizers. Nevertheless, as of the date this report went to press, none of the assailants had been brought to trial. Early on the morning of August 3, motorcyclists threw two homemade bombs at the offices of the newspaper Las Noticias de Cojedes, in San Carlos, Cojedes state. According to the information received, one of the explosive devices blew up against a car, and the other against the façade of the building that is home to the newspaper. The newspaper publishes complaints of community problems and prior to the attack had investigated cases of discoveries of spoiled food from the Venezuelan Food Producer and Distributor [Productora y Distribuidora Venezolana de Alimentos] (PDVAL). The Public Prosecutor’s Office launched an investigation.
On September 26 in El Tigre, Anzoátegui state, persons presumed to be PSUV sympathizers allegedly attacked Sara Vargas, a journalist with channel Órbita TV, and Susana Quijada, a journalist with TV Sur, as they were covering the moment when the former mayor and member of the opposition, Ernesto Paraqueima, cast his vote. According to the reports received, shortly after interviewing the former mayor, who had been beaten up by supporters of the party in power, someone had grabbed the camera from the Órbita TV cameraman. The camera, which was on the ground broken, was picked up and hurled at the head of Sara Vargas; in trying to avoid the blow, she cut her hand and needed ten stitches. In the same incident, government sympathizers had reportedly surrounded Susana Quijada and grabbed her microphone.
The IACHR received information on an attack that journalist Andrea Rocha and cameraman Víctor Davalí, from the press retinue of opposition deputy Ismael García, reportedly experienced after recording the destruction that presumed government sympathizers had allegedly caused at the scene of a campaign event staged by the Podemos party on May 28. When members of the group realized that they had been caught on film, they demanded that the journalists hand over the film. When the cameraman refused, the group surrounded him, and beat and kicked him. Andrea Rocha managed to safely reach in a vehicle and get away. One member of the group reportedly threw a stone that broke the vehicle’s window and injured the reporter’s arm.
On September 25, the Vice President of Venezuela, Elías Jaua, allegedly shoved a journalist from Globovisión, Johnny Ficarella, when he tried to interview him about the flooding caused by the rains in the community of Marapa, Vargas state. According to the information received, within minutes soldiers tried to confiscate the film from the Globovisión cameraman. On September 30, another Globovisión journalist, Beatriz Adrián, was allegedly shoved and beaten by a group of persons, as she was asking for information in a shelter of victims of the rains. According to what was reported to the Commission, the attack allegedly happened in the presence of Vice President Elías Jaua, who reportedly did not intervene to stop the attack. On October 17, a group of persons presumed to be supporters of the government allegedly attacked the teams of journalists from the newspapers El Siglo and Notitarde as they were covering the process of collecting signatures for a petition to protest the fact that specimens were being sent from the Valencia Aquarium to South Korea. On November 17, teams of journalists from Globovisión and Televén, who were covering the damage done by the heavy rains, were said to have been attacked in Guarico, Lara state, by an official from the mayor’s office and persons wearing PSUV shirts. According to the information received, the presumed assailants reportedly attempted to use force to disrupt the journalists’ work.
B. Disciplinary, administrative and criminal proceedings against media outlets and journalists
The Office of the Special Rapporteur for Freedom of Expression continued to receive information on judicial proceedings instituted for airing opinions or reporting information of great public interest. The Office of the Special Rapporteur is troubled by the fact that a number of cases brought against media outlets or journalists critical of the government began after the highest ranking officials of the State were publicly critical of their editorial position.
The Office of the Special Rapporteur was informed that on June 11, 2010, a criminal court in the city of Valencia convicted journalist Francisco “Pancho” Pérez and sentenced him to three years and nine months in prison and a fine of some US$20,000 for supposed crimes of defamation against the mayor of the city of Valencia, Edgardo Parra. The court also ordered additional penalties involving political disqualification and disqualification from the practice of his profession. According to the information received, the conviction was the result of a complaint concerning a column published in the newspaper El Carabobeño in March 2009, in which the reporter mentioned the fact that members of the mayor’s family were in the municipal government. According to the information received, on Tuesday November 30, 2010, the Carabobo State Court of Appeals overturned Pérez’ conviction. The Office of the Special Rapporteur applauds the court’s ruling.
On March 8, 2010, Oswaldo Álvarez Paz, former governor of the state of Zulia and a member of the National Assembly, made a statement on the program Aló Ciudadano, aired on Globovisión, in which he complained that high-ranking state officials supposedly had ties to drug trafficking. The following day, PSUV deputy Manuel Villalba filed a complaint with the Public Prosecutor’s Office asking that Álvarez Paz’s conduct be investigated for commission of a number of offenses criminalized in Venezuela’s Penal Code, including conspiracy against the republican form of government, public instigation to commit crime, public intimidation, false information and creating uncertainty among the public. On March 22, Álvarez Paz was detained and the court confirmed his detention on March 24. Álvarez Paz was held in a unit of DISIP. Álvarez Paz was held in custody for almost two months. On May 7, 2010, the Public Prosecutor’s Officer dropped the “conspiracy” charge, which had been the most serious charge, carrying a penalty of six to eight years’ imprisonment under Venezuelan law. As a result, on May 13, 2010, he was released on bail; as conditions for his release, he was prohibited from leaving the country, had to appear before the court hearing the case every fifteen days, and was prohibited from making any public statements about the case against him. As of the date this report went to press, the case against Álvarez Paz was still open and his trial had not yet been held.
On March 24, Congressional Deputy Manuel Villalba also asked the Public Prosecutor’s Office to launch an investigation into Guillermo Zuloaga, president of Globovisión, for statements made at an assembly of the Inter-American Press Association.
On March 25, 2010, the IACHR expressed its deep concern over the use of the State’s punitive power to criminally prosecute persons whom the authorities consider to be political opponents in Venezuela. The IACHR also stated that “the lack of independence and autonomy of the judiciary with respect to the political branches constitutes one of the weakest points of democracy in Venezuela, a situation that seriously hinders the free exercise of human rights in Venezuela. In the Commission’s judgment, it is this lack of independence that has allowed the use of the State’s punitive power in Venezuela to criminalize human rights defenders, penalize peaceful social protest, and persecute political dissidents through the criminal justice system.” The IACHR underscored the fact that “it is extremely troubling that those who make allegations or state opinions about the situation in the country are charged with such offenses as the instigation to commit a crime. The public statements made by many government officials supporting the detention of Álvarez Paz and calling for criminal proceedings to be brought against other individuals such as Guillermo Zuloaga, simply because they expressed their opinions in public forums, demonstrate a troubling consensus among the government authorities that it is legitimate to identify those who criticize the government with criminals.”
The IACHR also learned that in August, the military prosecutor’s office charged former director of Civil Protection, retired general and independent candidate for the National Assembly, Antonio Rivero, with the crimes of slandering the Armed Forces and disclosing private or secret military information. The charges carry a sentence of three to 10 years in prison. General Rivero went into retirement in April 2010, and shortly thereafter called a press conference where he denounced Cuba’s supposed influence over the Armed Forces. The military justice system ordered precautionary measures that prohibited Rivero from leaving the country and from making statements to the domestic or international media about information that might “compromise the Bolivarian National Armed Forces.”
On March 30, a Táchira state court convicted Gustavo Azócar, a journalist and former candidate for the office of Governor of Táchira state, and sentenced him to two and a half years’ imprisonment, with conditional release, for the crime of “unlawful enrichment from the business of government.” The court also imposed an additional penalty which was to disqualify Azócar from participation in politics. According to the information reported to the Commission, the case started in 2000 when a complaint was filed in the Public Prosecutor’s Office when the station at which the journalist then worked allegedly stopped airing commercials advertising a state entity. Azócar was prohibited from speaking about his case and in July 2009 was incarcerated for eight months for publishing, on a personal blog site, news related to his legal situation. Media organizations believe that Azócar’s conviction was politically motivated, as he was critical of the local government; they also believe it was in retaliation for accusations he made alleging corruption.
The Commission was also informed of a number of court cases against persons who expressed comments critical of the authorities. The Ministry of the People’s Power for Communications and Information allegedly requested that journalist and humorist Laureano Márquez be prosecuted for an editorial he wrote on January 29, in which he imagined the day when a presidential succession would take place in Venezuela. In the opinion of the Ministry of the People’s Power for Communications and Information, the humorous article was “a blatant call for the public to refuse to recognize the constitutional order and incited it to violence,” an “invitation to a genocidal and terrorist plot to overthrow the government.” The Ministry also announced that it would file a criminal complaint against the newspaper so that the “appropriate” sanctions might be enforced. Regarding this issue, the State of Venezuela stated that Márquez “only suffered criticism through the mass media by some citizens who thought that he was calling for the disregard of the constitutional order” . It is worth noting that public officials, though entitled to their right to freedom of expression, are subject to strict limitations as a consequence of their particular duties and responsibilities.
A baseball fan, Miguel Hernández Souquett, was tried on December 1, 2010, for having worn a shirt that read “Hugo, Screw Your Revolution.” He could receive a sentence of 3 to 6 years in prison for the crime of offending heads of government. According to the information reported to the Commission, Miguel Hernández wore the shirt at a sports event on the island of Margarita. As he was leaving the stadium, he was allegedly stopped by the police and taken to a unit of the Bolivarian Intelligence Service (SEBIN). A court ordered that he be released, but he was required to make regular appearances before the judge. He was later notified that he would stand trial. In the observations by the State of Venezuela to the draft of the General Report on the Situation of Human Rights in Venezuela, 2010, the State informed that “this citizen is not [currently] detained” .
On November 12, 33 people were reportedly arrested at a Caracas metro station for having demonstrated to protest train delays and service problems.
On June 8, the Health Commission of the Anzoátegui Legislative Council launched an investigation into the Director of the Tropical Medicine Center of the Universidad de Oriente, Antonio Morocoima, for statements made concerning Chagas disease and a possible outbreak of that sickness. According to the information received, Venezuela’s Parasitological Association supported Morocoima and asked authorities to rely on research papers which, the Association said, would back up what the scientist was saying.
The IACHR received information to the effect that on April 7, Globovisión journalist Beatriz Adrián was reportedly held for several hours at the Directorate of Military Intelligence (DIM) for having taped an interview in the parking lot of a business center located in the building that houses the Office of Comprehensive Security of the Armed Forces Social Security Institute (IPSFA). According to the information received, the journalist was interviewing someone who had been summoned to make a statement in the Office of the Military Prosecutor.
The Office of the Special Rapporteur received information to the effect that members of the Venezuelan Army had detained Colombian journalists Philip Moreno, Milton Uscátegui and Paula Osorio on July 16. According to the reports received, the Venezuelan military held the journalists in custody for two days. The news material that the journalists had gathered (a video containing recordings taken on Venezuelan soil) were said to have been confiscated by members of the Venezuelan Army. According to the reports received, the journalists were deported to Colombia on July 18, 2010. On August 3, 2010, the Office of the Special Rapporteur for Freedom of Expression asked the Venezuelan State to provide information regarding these events. Thus far, it has not replied.
C. Ban on publishing certain materials in the print media
On August 13, 2010, the newspaper El Nacional published on its front page a picture of nude and presumably lifeless bodies inside what was said to be the Bello Monte morgue in Caracas, Venezuela. The photograph was accompanied by an article on the increase in violent crime in Caracas. After officials publicly complained about the photograph published on the cover of El Nacional, the newspaper Tal Cual published the same photograph on August 16, 2010 out of solidarity with El Nacional.
As a result of the photograph published in the two newspapers, representatives from the Ombudsperson’s Office filed a petition seeking protection in which they requested that all the print media be ordered to refrain from publishing images that are “violent, bloody and grotesque (sic), irrespective of whether they are depicting events and inasmuch as such pictures violate the mental and moral integrity of children and adolescents.” Representatives of the Public Prosecutor’s Office brought a similar action against the newspaper El Nacional, to protect the collective and diffuse rights of children and adolescents. In that action, the Public Prosecutor’s Office asked that the court order “that […] publication of images, information and advertising of any type, containing blood, weapons, messages of terror, physical aggression, images that depict war and messages on killing and death be prohibited as they can affect the psychological health of children and adolescents.”
On August 16, 2010, the Judge of the Twelfth Court of First Instance for Mediation and Protection of Children and Adolescents, William A. Páez, ruled that the right to freedom of expression is not absolute and has limits when it affects other basic rights, such as “the right to have one’s physical, mental and moral integrity respected; the right to timely, truthful and impartial information, especially when it conflicts with the best interests of children and adolescents, which always takes preference.” The magistrate therefore decided that “the newspaper El Nacional is prohibited from publishing images, information, and advertisements of any type that contain blood, weapons, messages of terror, physical assaults, images that evoke content about war, and messages about deaths that could alter the psychological well-being of children and adolescents who reside in the Bolivarian Republic of Venezuela, until the merits of the present petition seeking protection are decided.”
On August 17, 2010, the same magistrate decided the merits of the petition brought by the Ombudsperson’s Office seeking an order of protection and prohibited the newspaper Tal Cual from “publishing images containing violent, bloody or grotesque content, irrespective of whether they are depicting events, and which in one way or another are detrimental to the mental and moral integrity of children and adolescents…” Applying the principle of jura novit curia, the court also stated that “All print media published in the Bolivarian Republic of Venezuela shall refrain from PUBLISHING IMAGES that are violent, bloody or grotesque, irrespective of whether they are depicting actual events, as they may in one way or another be detrimental to the mental and moral integrity of children and adolescents …” The magistrate reasoned that “when the media are used in a superficial way, heavily biased in favor of a given sector, they [the media] become a weapon wielded against the citizenry.”
On August 19, 2010, the magistrate lifted the general ban established on all the print media, but left the ban in place in the case of the newspapers El Nacional and Tal Cual.
The defense of the superior interests of children and adolescents is a common objective of all nations that is protected by international law. This important interest may give rise to legal restrictions on freedom of expression, which should be clear, precise and proportional in conformity with article 13.2 of the Convention. In turn, judges have the ability to apply such restrictions in concrete cases in which they should, within the strict requirements of article 13.2, weigh the legal interests in conflict taking into account the superior interest of the child. None of these requirements is compatible with the existence of judicial decisions of an injunctive nature that impose generic prior contraints on content in an ambiguous or imprecise manner, as was ordered by the judge in the situation just discussed.
D. The Law on Social Responsibility in Radio and Television is extended to include cable channels, and RCTV is taken off the air
In late late 2009 the Bureau of Social Responsibility issued Administrative Order No. 1/09 of December 22, 2009, in which it published the Technical Standard on Domestic Audiovisual Production Services (hereinafter, the “Technical Standard”). This Technical Standard extends the reach of the Law so that it applies to cable television channels, unless:
“1. Over 70% of a channel’s weekly programming consists of programs, advertising or commercials that, taken together, do not qualify as domestic production under the terms of Article 2 of this technical standard.// 2. When more than 70% of the total time of a channel’s weekly programming consists of programs, advertising or commercials that, taken together, do not qualify as domestic production under the terms of Article 2 of this technical standard.”
As can be inferred from the text of the provision cited above, the Technical Standard divides cable television channels into “domestic” and “international”. Whereas the system created by the Technical Standard applies to domestic cable television channels, which implies enforcement of the Law on Social Responsibility in Radio and Television, that system does not apply to international cable television channels. The Technical Standard establishes certain specific obligations, such as broadcasting of government messages or speeches (Article 5); a ban prohibiting commercial interruption of programs (Article 6); registration of these channels in the record created for that purpose (Article 10); and others. Finally, the conditions it imposes in the area of advertising are more restrictive than the conditions imposed under the Law on Social Responsibility in Radio and Television; whereas the Law on Social Responsibility allows five commercial interruptions every 60 minutes, the Technical Standard bans any commercial interruption and confines advertising to the intervals between various programs.
The Technical Standard establishes a procedure where cable channels will be evaluated to determine whether they qualify as “domestic” or “international”. Channels that were already broadcasting when the norm was approved are to submit to CONATEL, “within fifteen (15) working days from the date of publication of this technical standard, the paperwork to show that they either are or are not purveyors of domestic audiovisual production services for a sample period of four (4) months of programming aired prior to publication of the standard.” The provision also states that if channels fail to produce the required documentation, they will automatically be regarded as Domestic Audiovisual Production Services.
Finally, the last paragraph of Transitory Provision One requires that cable television providers exclude “those audiovisual production services that have failed to produce for the National Telecommunications Commission the documentation to which this article refers and those that are not listed in the register of domestic audiovisual production services.”
A number of earlier reports have documented the tension between government authorities and channel RCTV due to the latter’s editorial position. The authorities have described the channel as “horsemen of the Apocalypse”, “fascists”, the force behind “a campaign of terrorism against the people, the law and the Republic,” “liars, perverts, immoral people, rebels and terrorists” and other epithets. In 2007, its license expired and was not renewed. Around the middle of that year, RCTV began to broadcast on cable television, which meant that the provisions of the Law on Social Responsibility in Radio and Television did not apply to it. As previously observed, the language of that law is too vague and imprecise for the law to constitute a legitimate restriction on freedom of expression. Under the Law on Social Responsibility in Radio and Television, those television channels that are subject to its provisions are required to carry the blanket presidential broadcasts. According to the information supplied by civil society organizations that monitored the use of this resource, there were 1,932 blanket official broadcasts between February 1999 and July 2009, which amounted to 52 uninterrupted days of presidential broadcasts.
Given the new provision issued by CONATEL, RCTV decided to change its programming to conform to the parameters established by the Technical Standard for international channels, a decision it reported to the State on January 13, 2010. This meant drastic programming changes, such as cancellation of a number of programs produced in Venezuela. In the words of RCTV International, “within the established time period it applied the new programming parameters described for International Channels operating within Venezuelan territory; it did so in order to continue to function as we are, an International Channel.”
Despite the programming changes RCTV made, on January 15, 2010 CONATEL classified RCTV International as a domestic audiovisual production service, and so notified RCTV International on Thursday, January 21, 2010. RCTV challenged that decision by filing a writ for constitutional protection (amparo). Since the petition seeking amparo relief was pending before the courts, RCTV -which felt it had proven that it was an “international” channel- decided not to carry the blanket presidential broadcasts on the following Friday and Saturday. CONATEL did an evaluation of the content, using a sample taken from the four months that preceded issuance of the Technical Standard. As a result, the changes that RCTV made to its programming starting on December 22, 2009, did not count since, in order to be classified as an “international producer” under the technical standard issued on December 22, 2009, RCTV had to be in compliance with the requirements stipulated therein four months before the standard was issued, in other words, as of August 22, 2009.
On Saturday night, January 23, 2010, Minister Cabello made public statements in which he asserted that there were cable channels that were not in compliance with Venezuelan law. According to administrative order 01/09 of the Bureau of Social Responsibility, if channels fail to comply with the Technical Standard established in that regulation, cable television providers are to eliminate them from their programming. In effect, the final paragraph of Transitory Provision One of the Technical Standard reads as follows:
“Cable providers are to exclude from their programming any audiovisual production services that have not produced for the National Telecommunications Commission the documentation to which this article refers, as well as those not listed in the register of domestic audiovisual production services.”
The Minister therefore served notice to all cable operators that they were to take off the air those channels that were not in compliance with the law, under penalty of facing administrative proceedings. Specifically, Minister Cabello said the following:
“If a cable operator -let’s call it Cable Venezolana- found that a certain channel was not in compliance with Venezuelan law, and Cable Venezolana did nothing to remove that channel from its offerings, we would institute an administrative proceeding against Cable Venezolana, the provider which brings the channel into the home. I should point out that in this instance, the cable operators themselves have been telling CONATEL which channels are not in compliance with the Law on Social Responsibility, even though they have been classified as Domestic Audiovisual Producers, and they simply operate on that basis.
(…)
We’re not obligating them to anything; this is simply a matter of compliance. And we’re not sanctioning anyone (…) What I’m saying is this: this time the cable operators have done what they are supposed to do. If they don’t, I will enforce the Organic Law on Telecommunications and institute administrative proceedings. We’ll take action against the cable operator, but thus far this hasn’t happened. We’ve already called them and told them: look, read the technical standard, then look at which channels are classified as domestic audiovisual producers and which channels are international producers, and then verify that. The cable operators have discovered which channels are not in compliance. In keeping with the technical standard, they simply drop any channel that is not in compliance with Venezuelan law.
[Question from a journalist on how much time operators have to drop channels]
This was approved on Thursday and the list went out. To be honest, the operators should have already done it. They have a little time, perhaps. Here, everyone has to do one’s duty. (…) By now, anyone who is not in compliance… well the operators will begin to make their decisions. I guarantee you, that’s how it will be!”
At midnight, January 23, RCTV and five other television stations went off the air.
The Commissioner for Venezuelan Affairs and the Special Rapporteur for Freedom of Expression expressed their deep concern over the fact that the channels in question were taken off the air. In press release 08/10 they expressed the following:
“The decision to take a cable channel off the air for alleged non-compliance with the Law of Television and Radio Social Responsibility means, for all intents and purposes, the closure of a channel for not complying with this law. This decision therefore has enormous repercussions when it comes to freedom of expression, and as such must comply with all the guarantees consecrated in law, in the Venezuelan Constitution and in the international treaties to which the Bolivarian Republic of Venezuela is a party. In particular, in order for the closing of a media outlet to be legitimate, it is necessary that prior to the exhaustion of due process, an independent and impartial state body verify that the media outlet committed an offense clearly established by law and that the agency charged with enforcing the law adequately and sufficiently justifies the decision. These minimum guarantees of due process cannot be sidestepped on the pretext that the media outlet in question is a cable channel. // In this case, the channels that were so suddenly taken off the air did not have an opportunity to defend themselves with due process and before an impartial authority. These channels were punished summarily, without due process and without justification under Venezuelan law. With this decision, the right to freedom of expression in Venezuela is further eroded, as it blocks cable media outlets from operating independently and without fear of being silenced on account of the focus of their reporting or their editorial stance.”
In the case described here, the cable television providers were informally warned that they should take the supposedly noncompliant television channels off the air; if they failed to do so, they would face administrative proceedings and penalties. That indirect pressure is based on retroactive enforcement of a provision that had reportedly been devised to get at RCTV specifically. This would imply a violation of the principle of legality, which presupposes that any restrictions on freedom of expression must be established by pre-existing law, written in clear and unambiguous language in order to provide the necessary “foreseeability”, as both the IACHR and the European Court have recognized. Moreover, as the Office of the Special Rapporteur for Freedom of Expression wrote in its 2009 Annual Report, “because punitive procedures can seriously affect the exercise of freedom of expression, they must provide for all of the due process guarantees enshrined in Articles 8 and 25 of the American Convention.”
The IACHR was told that in February 2010, five of the six suspended cable channels were authorized to broadcast again. The exception was RCTV International. Later that same month, RCTV International agreed to its classification as a “domestic audiovisual producer.” In effect on February 22, 2010, RCTV International notified CONATEL of its intention to provide two services: one domestic audiovisual production service, which would be subject to the laws described in the preceding paragraphs, and RCTV Mundo, an “international” channel whose “domestic” content would not exceed 29%. On March 4, 2010, CONATEL ruled that the petition that RCTV International filed to register that channel as a domestic audiovisual production service had been submitted too late, and it would therefore take no further action. In so doing, CONATEL applied Article 32 of the Organic Law on Telecommunications which provides that no further action shall be taken on applications filed with CONATEL for licensing if, through the interested party’s fault, the proceedings come to a standstill for more than fifteen working days. CONATEL also claimed that the documentation presented in connection with RCTV Mundo had been “inaccurate and incomplete” and, as a result, CONATEL could not do the necessary evaluation to determine whether this was a “domestic” or “international” channel. At the present time, RCTV is not being carried by cable providers.
RCTV filed an action asking the courts to strike down the Technical Standard and the decision that classified RCTV as a domestic audiovisual production service. On August 11, 2010, Examining Court of the Administrative Political Chamber of the Supreme Court agreed to hear the nullification action; the next step was to be the hearing. As of the date this report went to press the hearing had not been held.
E. The Globovisión case
Globovisión is a privately-owned Venezuelan television channel whose position tends to be critical of the Venezuelan government. In previous reports, the Office of the Special Rapporteur has recounted various episodes of harassment of the channel because of its editorial position. In the 2009 Annual Report the IACHR and the Office of the Special Rapporteur singled out at least six administrative proceedings that CONATEL had instituted against Globovisión for alleged violation of Article 29(1) of the Law on Social Responsibility in Radio and Television, and articles 171(6) and 172 of the Organic Law on Telecommunications. As of the date this report went to press, the outcome of these proceedings was still unknown.
Between March 19 and 22, 2010, the midyear meeting of the Inter-American Press Association was held in Oranjestad, Aruba. Participating in the event was Guillermo Zuloaga, president of Globovisión of Venezuela. At the meeting, Zuloaga made a statement in which he criticized the handling of public funds to support public media outlets that serve governmental ends; he underscored the political polarization in Venezuela, which he blamed on the President of the Republic. According to Zuloaga, Venezuela’s head of state “has devoted himself to being President of one group of Venezuelans and has tried to divide Venezuela for the sake of something, and that something is twenty-first century socialism.” Zuloaga also denied the accusations that President Hugo Chávez Frías had made publicly against him, to the effect that he and other media entrepreneurs were somehow linked with the 2002 coup d’état.
On March 23, 2010, the National Assembly approved a draft resolution in which Zuloaga’s assertions were rejected. Through this resolution, the National Assembly urged “the Public Prosecutor’s Office to conduct all investigations and take all measures necessary to determine what crimes citizen Guillermo Zuloaga had committed under the current legal system by uttering the statements he made before the Inter-American Press Association, in which he repeated a series of false accusations against the legitimate and democratic government of constitutional President Hugo Chávez.” The following day, Deputy Manuel Villalba, President of the National Assembly’s Commission on the Social Media, met with Prosecutor General Luisa Ortega Díaz to file a formal complaint.
On March 25, 2010, at Josefa Camejo Airport in Punto Fijo, Falcón state, Zuloaga was detained by virtue of an arrest warrant requested by the Public Prosecutor’s Office as part of the investigation instituted against him. The Public Prosecutor reported that “the evidence is sufficient to presume that the businessman constitutes a flight risk in an attempt to avoid the criminal proceedings brought after the complaint filed concerning his remarks at a meeting of the Inter-American Press Association.” Villalba emphasized the fact that Zuloaga’s statements constituted the crime of “contempt of and offending” the President of the Republic. The following day, Caracas’ 40th Examining Court decided to grant Zuloaga conditional release, although in lieu of incarceration, it ordered him not to leave the country. As of the date this report went to press, the case against Zuloaga was still ongoing.
On June 3, 2010, President Hugo Chávez Frías allegedly publicly criticized the Judiciary for having allowed Guillermo Zuloaga to remain at liberty.
On June 11, 2010, Caracas’ 13th Examining Court issued a warrant for the arrest of Guillermo Zuloaga and his son Guillermo Zuloaga Siso. Both were accused of the crimes of usury and hoarding for having kept 24 vehicles in storage on a property they owned in the countryside. According to the information received, Zuloaga is the owner of a car dealership.
Reacting to this turn of events, the Office of the Special Rapporteur for Freedom of Expression sent a letter to the Venezuelan government expressing concern over various issues related to freedom of expression, one of which was the order issued for the arrest of Guillermo Zuloaga and his son. The Office of the Special Rapporteur for Freedom of Expression expressed its concern regarding the arrest warrant, “noting the constant threats and harassment of Globovisión in general and Zuloaga in particular”. It also pointed out that, “according to information received, on June 3, 2010 (…) the President of the Republic had criticized the Judicial Branch because Zuloaga was still free. It observed that it seems no coincidence that just eight days after the President’s rebuke, the Judicial Branch issued a warrant for Zuloaga’s arrest”.
The Office of the Special Rapporteur underscored the fact that “freedom of expression is a right that can be violated by direct and indirect means. Article 13, subsection 3 of the American Convention states that ‘the right of expression may not be restricted by indirect methods or means, such as abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.’ From this point of view, criminal prosecution for supposed crimes unrelated to the exercise of freedom of expression may constitute an illegitimate infringement of that right if it is established that prosecution is exclusively because of the accused’s political position or the exercise of his fundamental rights, such as freedom of expression in this case.”
According to the information received, Zuloaga left the country, whereupon proceedings for his extradition were instituted, at the request of the Public Prosecutor’s Office. In mid-August 2010, the Supreme Court cleared the way for the extradition request to proceed.
Nelson Mezerhane Gozen is one of Globovisión’s co-founders and serves as its Principal Director. He is also president of the Federal Bank. On December 19, 2009, in one of his nationwide broadcasts, the President of the Republic questioned statements made by Mezerhane and ordered an investigation of him for the statements Mezerhane had made to the daily newspaper El Mundo Economía y Negocios. President Chávez said the following: “I’m going to call the Prosecutor General later and ask that she have those statements investigated, as I consider them to be very serious and irresponsible, especially coming from the mouth of the president of a bank, which has had serious problems, for sure.”
On December 21, 2009, a criminal investigation was instituted against Mezerhane, by order of the Prosecutor General of the Republic, Luisa Ortega Díaz.
On June 14, 2010, the Minister of State for Public Banking, Humberto Ortega Días, decided to take over the Federal Bank. On June 16, 2010, in one of his nationwide broadcasts, President Chávez said the following: “While it is true that Mr. Banker, who left and said he wasn’t coming back [Mezerhane] has shares in Globovisión, Zuloaga is going to have to show up for us to come to some understanding over that channel.” He also said that if the court cases demonstrate that both Zuloaga and Mezerhane have shares in Globovisión, “both will have to straighten up and come my way; I have a flower to offer.”
The statements made by the President of the Republic suggest that the State wants to take over Globovisión by intervening in the Federal Bank, whose president, Nelson Mezerhane, is also a shareholder in Globovisión:
“Mezerhane has a business that was taken over, and that business has a 20% stake in Globovisión. He owns another business that has a 5.8% stake in Globovisión. Adding the two together, that’s a 25.8% stake. Well, come to see me, I have a flower. In the days ahead, the Board that intervened in the Federal Bank is required (…) to appoint a representative to sit on Globovisión’s Board of Directors, because the 25.8% stake we now have gives us the right to name a representative to the Board of Directors. And I was thinking who should I nominate? (…) Well, it’s not my function to appoint the Board member, but I would recommend someone to be appointed to the Board. (…) We hear names, someone to defend the shareholders’ interests (…) This is pure capitalism, my friend, pure capitalism by the shareholders (…) We’re joining the business (…) And oh, by the way, another 20% of the shares in Globovisión are up in the air. They’re up in the air because when the State awarded the concession, 20% of the shares went to a gentleman by the name of (…) Tenorio; he got 20 percent (…). Regrettably, the gentleman is now deceased. By law, these concessions are not inherited; in other words, what one leaves to one’s children, one’s heirs is one’s own property, but radio frequencies are the property of the State. If anyone receives a concession it is for use of the radio frequency; when that person dies, the concession goes back to the State. We’ll see to whom it goes now. So, adding all this together, 28.5% plus 20%, well, my friends that’s a 48.5% stake in Globovisión.”
The same day the President made these statements, PSUV deputy Carlos Escarrá said the following on the La Hojilla television program:
“Mr. Zuloaga is being criminally prosecuted for a number of crimes that are violations of the Defense of the People Law, which makes hoarding and speculation criminal offenses. That law gives the State the authority to adopt precautionary measures, because the crime of which Mr. Zuloaga is accused affects all people (…). The State is fully within its rights to take over, as a precautionary measure, Mr. Zuloaga's shares in Globovisión, which would make the State the majority shareholder in Globovisión. Being a majority shareholder means having 55% of the shares; but taking over Mr. Zuloaga’s shares would mean that the State would have roughly a 77% stake (…). This is far more than a 55% stake in that phantom business.”
Subsequently, in a blanket presidential radio and television broadcast delivered on July 2, 2010, the President again made reference to Globovisión and stated “Let’s see who holds out longer: crazy Globovisión or Venezuela.” He went on to say the following: “So some thought will have to be given to the question of what happens to that television channel; so, what’s going to happen? The owners are out there, fugitives from justice. And I’m calling upon those who run that channel -who are not the owners- and especially those on the front lines, who are acting on the instructions from the owners –who are in hiding, as fugitives from justice-: you are undermining the country’s stability on the owners’ orders…; it’s very dangerous to allow a television channel to incite a country. That’s something we just can’t allow.”
The facts recounted in the preceding paragraphs are troubling. According to the statements made by public officials, the State intends to seize control of the Globovisión channel. As previously mentioned, Article 13(3) of the American Convention prohibits any indirect methods or means intended to restrict freedom of thought and expression.
On November 20, 2010, the President gave Venezolana de Televisión an interview, in which he said the following about Guillermo Zuloaga:
“And he’s not just a fugitive from justice; just yesterday he was at the United States Congress casting aspersions on his own country, his own government, this president; and he’s the owner of that channel. As Head of State, I am calling upon Vice President Elías Jaua, the Prosecutor General, and the Supreme Court to do something. Because this is something very odd: here we have the owner of a television channel who is a criminal and a fugitive from justice. He appears at the United States Congress and says whatever he pleases against this government, and conspires against it. They’re raising money to pay someone to kill me. I’m telling you this. Yes, Yes. They’re paying someone; (…) I have it from very reliable sources that they have 100 million dollars for the person who kills me. And he’s one of them; the owner of a television channel that is at this very moment broadcasting in Venezuela. Do you realize what’s happening? I’m asking the appropriate organs to investigate this, because something has to be done. Either the owner comes to defend his assets -show his face, as he should- or something will have to be done about that channel…”
In an address to university students on November 21, 2010, the President said the following:
“Just three or four days ago representatives of the ultra right gathered in Washington. And the Globovisión owner was there at that meeting, one of them for sure. This is inexplicable; I still don’t understand it, and hope to understand it better… In other words, here we have a Venezuelan who is a fugitive from justice. He is the owner of, among other things, a television channel that is on the air every day. Broadcasting from here! Right here in Caracas! And he’s out there, a fugitive from justice. Oh, he also goes to Washington to say… well to say whatever he wants; to brand this soldier a tyrant; to say that Venezuela is a dictatorship and Venezuela is foundering; he is practically asking the Yankee imperialists to intervene in Venezuela. And he’s the owner of a television channel that remains on the air. I’ve called upon the branches of government (…) the Office of the Prosecutor General, the Judicial Branch, the Vice President –our dear friend Elías Jaua- to see what we can do. Right? Because that gentleman fled the country, a fugitive from justice; he is a criminal and yet he has a television channel criticizing the government every day, misrepresenting the truth. This government and the Venezuelan State have to do something about this! Let’s see what happens… But this situation cannot go on; it is a violation of the Constitution and the law. That gentleman should come here and show his face … Face the Venezuelan courts. But no, he’s there in Washington, asking the empire to intervene in his own country, which is very likely treason (…). I know that this matter is already under review, to see what we can do. Either this man shows up here or some action will have to be taken against his businesses, one of which is a television channel…”
Because of these statements, in which the President asked State authorities to take measures against Globovisión, on November 22, 2010 the Office of the Special Rapporteur requested information from the Bolivarian Republic of Venezuela, asking that it report any measures taken with respect to Globovisión since the statements made by President Hugo Chávez; information concerning the status of the administrative proceedings that CONATEL previously instituted with respect to Globovisión; information about whether Venezuela’s legal system allows administrative or judicial proceedings against media outlets because of their editorial stance or the political alignment of their shareholders; information about whether Venezuela’s legal system allows intervention or measures against a media outlet because one of its shareholders is being prosecuted for reasons unrelated to the ownership of shares in that outlet; and, finally, the reasons that would explain why the President of the Republic would accuse the Globovisión shareholder Guillermo Zuloaga of the crimes of plotting to assassinate him and treason.
On November 24, 2010, the Bolivarian Republic of Venezuela responded to request for information made by the Office of the Special Rapporteur and observed the following: “Thus far, no measures of any kind have been taken against Globovisión television, inasmuch as each of the constitutionally established branches of government are independent of each other; hence, simple statements made by the President do not constitute an order that the other branches of government are bound to follow.” The State also noted that “just as Citizen Guillermo Zuloaga turned to the United States Congress to exercise his right to freedom of expression, Citizen President Hugo Chávez has the same right to answer the accusations made against his Government.” Lastly, it wrote that “the investigations instituted against citizen Guillermo Zuloaga have to do with alleged criminal offenses, and not with Globovisión’s editorial stance; the fact that he is a shareholder in that television channel does not make him immune to investigation or to any criminal, civil or administrative penalties that may be in order after an impartial investigation and a trial with all the guarantees of due process established in the Constitution and the law.”
It is important to point out that, as the Office of the Special Rapporteur for Freedom of Expression observed in its 2009 Annual Report, “Public officials, like all people, are entitled to the right to freedom of expression in its diverse manifestations. Nevertheless, the exercise of this fundamental freedom acquires certain connotations and specific characteristics that have been recognized under the case law of the inter-American system.” That case law has held that public authorities’ right of freedom of expression has certain strict limits that are the product of the particular obligations and responsibilities vested in officials who serve in public office. In effect, when public officials exercise their freedom of expression, either in compliance with their obligation under the law or as a simple exercise of their right to express themselves, “in making such statements the authorities are subject to certain restrictions such as having to verify in a reasonable manner, although not necessarily exhaustively, the truth of the facts on which their opinions are based, and this verification should be performed subject to a higher standard than that used by private parties, given the high level of credibility the authorities enjoy and with a view to keeping citizens from receiving a distorted version of the facts.”
Furthermore, given the State’s obligations to ensure, respect and promote human rights, public officials have a duty to ensure that when exercising their right to freedom of expression, they are not disregarding fundamental rights. As the Inter-American Court wrote: “[T]hey should bear in mind that, as public officials, they are in a position of guarantors of the fundamental rights of the individual and, therefore, their statements cannot be such that they disregard said rights.” Therefore, public officials may not, for example, “violate the presumption of innocence by accusing media outlets or journalists of crimes that have not been investigated and judicially determined.”
In making statements, public officials must also be certain not to infringe upon the rights of those who contribute to the public discourse by expressing and publishing their thoughts, such as journalists and media outlets. Here, the Inter-American Court has indicated that public officials must bear in mind the context in which they express themselves, so that their utterances do not constitute “forms of direct or indirect interference or harmful pressure on the rights of those who seek to contribute to public deliberation through the expression and dissemination of their thoughts.” This duty of special care becomes all the more important in situations of heightened “social conflict, alterations of public order or social or political polarization, precisely because of the set of risks they may imply for certain people or groups at a given time.”
Public officials have a duty to ensure that their exercise of the right to freedom of expression does not interfere with or encumber the functions that other public officials are called upon to perform and in a manner detrimental to the rights of individuals, particularly in the case of the autonomy and independence of the courts. As the Inter-American Court has found: “public officials, particularly the top [g]overnment authorities, need to be especially careful so that their public statements do not amount to a form of interference with or pressure impairing judicial independence and do not induce or invite other authorities to engage in activities that may abridge the independence or affect the judge’s freedom of action,” as that would adversely affect the citizens’ right to an independent judiciary.
As the Inter-American Court held in the Ríos and Perozo cases, in contexts and periods of “very high political and social polarization and conflict” it is especially imperative that public officials exercise prudence, so as not to create dangerous situations or further inflame the dangers already present.
Finally, the Office of the Special Rapporteur recalls that criminal prosecution for crimes unrelated to exercise of freedom of expression may constitute a violation of that right if it is shown that the investigation was motivated exclusively by the accused’s political stance or his or her exercise of the right to freedom of expression.
F. Legal actions instituted against organizations that defend human rights and freedom of expression
The IACHR and its Special Rapporteurship received information concerning accusations brought in Venezuela against Venezuelan organizations that defend human rights and, particularly, against organizations that defend the right to freedom of expression. The accusations concern the international funding they have received. The IACHR was informed that on July 12, the Minister of Public Works and Housing and director of CONATEL, Diosdado Cabello, publicly criticized the funding received by some nongovernmental organizations devoted to defending the right to freedom of expression. Minister Cabello based his criticism on an article written by Eva Golinger that appeared on a number of sites on the internet and was titled “United States finances Venezuelan media and journalists.” According to the article, United States government agencies or agencies that receive funding from the US government were reportedly funneling monies to nongovernmental organizations in Venezuela. One day later, the Venezuelan group “Periodismo Necesario” filed a complaint with the Office of the Prosecutor General asking it to investigate the organizations that are receiving funds. Both President Chávez and the Venezuelan National Assembly asked for in-depth investigations into the financing of the organizations. On August 16, Eva Golinger supplied documents to the Office of the Prosecutor General that allegedly showed the international funding that a number of Venezuelan organizations had allegedly received. However, as of the date this report went to press, the organizations under investigation had not been notified of what crime one commits by accepting funds from foreign agencies or governments to be used to promote and guarantee human rights. Nor have they been notified that an investigation is being conducted into their affairs.
The IACHR also received information on a series of televised messages and programs shown repeatedly by official media outlets that attempt to discredit and stigmatize the aforementioned nongovernmental organizations that are critical of the government. Both Espacio Público and the Instituto de Prensa y Sociedad, two of the organizations in question, have publicly reiterated that the international funding they receive comes from multiple sources and that they are operating within the law. On December 16, 2010, as mentioned previously, the Executive Director of Espacio Público, Carlos Correa, was in front of the National Congress when he was physically assaulted and threatened with death. With no police control, persons hurled an object at him and seriously injured him in the head. Correa had gone to the National Assembly to submit a petition with objections to some of the laws that the deputies were discussing at the time (see infra). The attack against Correa, following the campaign to smear and discredit him driven by the government via the public airwaves, demonstrates just how serious government campaigns of this kind can become. The Inter-American Court had already warned Venezuela about this possibility and pointed out that while these official addresses may not directly instigate violence, they nonetheless place the individuals attacked in the speeches in a situation of greater vulnerability vis-à-vis the State and certain sectors of society. In the case of employees of a television channel harassed by Venezuelan authorities and labeled as the “opposition” and branded as “rebel”, “uninformed” or “destabilizing,” primarily in the presidential addresses, the Court held that this alone meant that this group of persons ran the risk of having their rights violated by private persons, not because of their personal qualities or condition but merely because of their status as employees of that channel.
On July 23, the IACHR asked the Venezuelan State to supply information on the criminal investigations requested against the aforementioned persons and nongovernmental organizations, the grounds for requesting such inquiries, the status of the investigations and the laws that prohibited NGOs from receiving international funding. In its request for information, the IACHR reminded the Venezuelan State of the recommendation made to States that they “[r]efrain from restricting the means of financing of human rights organizations”; of the leading role that human rights defenders play in the full achievement of the rule of law and in strengthening democracy, and that freedom of expression is incompatible with direct or indirect pressure brought to silence the work done by social communicators to report and inform.
On February 22, 2011, the IACHR received the observations of the State of Venezuela on the IACHR’s Annual Report for 2010. There, in relation to this issue, the State observed: “It is true that the Venezuelan State has questioned NGOs that receive funding from foreign governments. For this reason, a law was passed that forbids this kind of financing. The Venezuelan State has corroborated that the NGOs from Venezuela supported the coup d’etat of April 11, 2002 [and] none of them presented a request for precautionary measures to the Commission to guarantee the life of President Chávez.”
G. The use of blanket presidential broadcasts [cadenas presidenciales]
The IACHR and the Office of the Special Rapporteur have acknowledged the authority that the President and high-ranking State officials have to use the media to inform the public on issues of vital public interest and those that urgently need to be reported by way of the independent communications media. In effect, as the Inter-American Court has stated, “making a statement on public interest matters is not only legitimate but, at times, it is also a duty of the state authorities.”
Exercise of this authority, however, is not absolute. The information that the head of state conveys to the citizenry in the blanket presidential broadcasts must be that strictly necessary to address urgent needs for information in matters that are clearly and genuinely of public interest, and during the time strictly necessary to relay the information. Applying international standards, both the IACHR and its Special Rapporteurship, as well as certain domestic agencies of States parties to the American Convention, have indicated that “it is not just any information that gives the President of the Republic the authority to interrupt regular programming; rather, it is information that the general public wants or needs to know about issues that may be of importance to the public and really essential for citizens to be truly able to participate in collective life.” Principle 5 of the Declaration of Principles of Freedom of Expression explicitly provides that “Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression.”
In 2009, the IACHR received information from civil society organizations and the academic sector indicating that between February 1999 and July 2009 the Venezuelan communications media transmitted a total of 1,923 blanket presidential broadcasts, equivalent to 1,252 hours and 41 minutes, in other words 52 days of uninterrupted broadcasting of presidential messages. The trend held in 2010. On February 2, 2010, President Hugo Chávez went on the airwaves with his 2000th blanket presidential broadcast.
On December 22, 2009, the Bureau of Social Responsibility of the Bolivarian Republic of Venezuela issued an Administrative Order establishing the Technical Standard on Domestic Audiovisual Production Services, according to which cable television channels that have less than 70% international programming would be regarded as Domestic Audiovisual Production Services and would be required to carry government messages or addresses free of charge, in keeping with the provisions of the Law on Social Responsibility in Radio and Television (Ley Resorte).
On June 17, 2010, one of the five electoral rectors on the National Electoral Council, Vicente Díaz, questioned the increase in the frequency and duration of the presidential broadcasts, as the September 26 parliamentary elections approached. According to the information received, Mr. Díaz publicly stated that the blanket presidential broadcasts would serve to promote the party in power and the intent might be to influence the electorate.
The Office of the Special Rapporteur recalls that any obligation requiring a media outlet to broadcast content that it has not itself selected must be applied in strict accordance with the requirements set forth in Article 13 of the American Convention, in order for a limitation on the right to freedom of expression to be deemed acceptable.
Based on the foregoing considerations, the Office of the Special Rapporteur again urges the State to adapt its legislation on presidential broadcasts so that it conforms to the standards herein described.
On February 22, 2011, the IACHR received the observations of the State of Venezuela to the IACHR’s 2010 Annual Report. There, the State of Venezuela indicated that presidential broadcasts have a legal basis in article 58 of the Constitution of the Bolivarian Republic of Venezuela.
H. The of right of access to information
1. The National Situational Study Center
On June 1, 2010, the President of the Republic created the National Situational Study Center [Centro de Estudio Situacional de la Nación] (hereinafter, “CESNA”) by Decree 7,454 (Official Gazette 39,436 of June 1, 2010). CESNA was created as a decentralized organ of the Ministry of the People’s Power for Domestic Relations and Justice. The Center will have administrative and financial autonomy and will be headed by a president who shall be an appointee of the Minister of the People’s Power for Domestic Relations and Justice, with the President’s authorization.
The purpose of this agency, created invoking national security arguments, is “to constantly compile, process and analyze information from the various situation rooms or similar bodies belonging to institutions of the State and of society, on any issue of national interest. The goal is to provide analytical and informational support to the Office of the Presidency, keeping it supplied with the up-to-date information needed to facilitate strategic decision-making and thus protect the Nation’s vital interests and objectives, and to facilitate execution of public policy and fulfillment of the State’s essential functions.”
Article 9 of the Decree gives CESNA the authority to classify as “confidential, classified or for limited distribution, any piece of information, fact or circumstance that the National Situational Study Center learns of or processes in discharging its functions…” A number of Venezuelan civil society organizations challenged this provision, arguing that it could “lead to abuses on the part of CESNA officials” and that it implies “serious restrictions [on the exercise of the right to freedom of thought and expression] with multiple adverse consequences.”
National security objectives are most certainly legitimate, as expressly stated in Article 13(2)(b) of the American Convention. However, the concept of “national security” used in regulations that restrict access to public information and authorize that information to be classified as confidential, must be compatible with the standards of openness and transparency essential in a democratic society. In effect, in order for a restriction on access to information to be valid, the State must show that disclosing certain information in the State’s possession would do certain, objective, serious and immediate harm to a democratic state’s national security. In this specific case, the provision speaks of generic national security purposes, without specifying the circumstances and conditions under which a piece of information that in principle should be public, is legitimately withheld from the public. Nor does the regulation make any reference to or cite a law that spells out those circumstances and conditions.
Furthermore, Article 9 of Decree 7,454 authorizes the president of CESNA to classify as confidential any type of “information, fact or circumstance of which he/she learns in the course of performing his/her functions or that is processed at the National Situational Study Center …” The authorities given to CESNA are a source of concern, because it has broad discretionary powers to establish exceptions to the exercise of freedom of information and access to information, exceptions that, as the case law of the inter-American system has held, may only be established by law, both in the formal and material sense, written in precise and unambiguous language. The relevant definition in this regard is the one that the Inter-American Court established in Advisory Opinion OC-6/86, where it wrote that “the word ‘law’ is not just any legal norm, but rather a general provision enacted for the general welfare by a legislative body provided for in the Constitution and democratically elected according to procedures set forth in the Constitution.” If the State cannot determine by decree the conditions under which certain information can be classified, it can hardly delegate that function to an administrative official, as it appears to do in article 9 of decree 7,454.
It must be recalled that under Principle 4 of the IACHR’s Declaration of Principles on Freedom of Expression, “[a]ccess to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right.”
2. Judgment 745 of the Constitutional Chamber of the Supreme Court
On July 15, 2010, the Constitutional Chamber of the Supreme Court decided an action seeking constitutional amparo. The action was brought by the Public Arena Civil Association [Asociación Civil Espacio Público] to challenge the refusal of the Office of the Comptroller General of the Bolivarian Republic of Venezuela to turn over information concerning the “base salary and other benefits that the Comptroller General of the Republic receives and the remunerations received by the rest of the staff at the Office of the Comptroller General of the Republic…” By a majority vote, the Constitutional Chamber of the Supreme Court decided to deny the petition seeking amparo relief on the grounds that the request to have access to that information violated the right to privacy of the public officials.
As there was no specific law governing this matter, the Constitutional Chamber of the Supreme Court established binding jurisprudence to the effect that anyone requesting information of this type must “expressly state the reasons why the information is needed or purposes to which it will be used” and must prove that “the amount of information being requested is commensurate with the use to which the requested information will be put.”
The jurisprudence established by the Constitutional Chamber of the Supreme Court in its ruling of July 15, 2010, disregards the principle of “maximum disclosure” which must govern access to information in the possession of the State. In effect, in its case law the Inter-American Court has established that “in a democratic society, it is essential that the State authorities are governed by the principle of maximum disclosure.” The IACHR has also held that under Article 13 of the American Convention, the right of access to information must be governed by the principle of maximum disclosure.
The Inter-American Court established that the principle of maximum disclosure “establishes the presumption that all information is accessible, subject to a limited system of exceptions.” That limited system of exceptions must be set forth by law; in the event of any doubt or gap in the law, then access to information should be allowed. The Court also wrote that, living in a state, every person has a legitimate interest in knowing how public resources are being used. Therefore, persons interested in knowing how much a civil servant earns need not show and demonstrate what their specific interest in the information is.
Principle 4 of the IACHR’s Declaration of Principles on Freedom of Expression provides that “Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right.”
I. Criminalization of offenses against honor and the Case of Usón Ramírez v. Venezuela
1. The Penal Code
In its 2009 Annual Report, the Office of the Special Rapporteur made reference to the March 2005 changes in the Penal Code, which expanded the scope of the provisions on protection of state officials’ honor and reputation against criticisms aired publicly that may be deemed offensive to them. Prior to the 2005 reform, the President of the Republic, the Executive Vice President, the ministers of government, the governors, the Mayor of the Caracas Metropolitan District, the justices of the Supreme Court, the chairpersons of the Legislative Councils and the superior court judges had the authority to institute criminal proceedings for the crime of desacato [disrespect]. The amendment of the law added the following to the list: the members of the National Assembly, officials on the National Electoral Council, the Prosecutor General, the Attorney General, the Ombudsperson, the Comptroller General and the members of the Military High Command. The March 2005 reform retained the article criminalizing the offense known as “vilipendio” (contempt or scorn), which is a kind of offense against the institutions of the State.
The 2009 Annual Report criticized the fact that these laws were still on the books. The Commission and the Special Rapporteur pointed out that, as the Inter-American Court has stated, “defense of freedom of expression includes the protection of affirmations that could be offensive, disturbing or unpleasant for the State, since this is the requirement of a democratic order founded on diversity and pluralism. In addition, the doctrine and jurisprudence have been consistent and repetitive in indicating that critical expressions that question public authorities or institutions deserve a greater –not lesser- protection in the inter-American system. This has been affirmed by the Inter-American Court in each and every case resolved in the area of freedom of expression.”
Indeed, the IACHR and the Office of the Special Rapporteur have repeatedly voiced their objections to the existence of laws criminalizing desacato [disrespect], such as those just described. The Commission has echoed the conviction that desacato laws “conflict with the belief that freedom of expression and opinion is the ‘touchstone of all the freedoms to which the United Nations is consecrated’ and ‘one of the soundest guarantees of modern democracy’.” In this regard, desacato laws are an unlawful restriction on freedom of expression, because (a) they do not serve a legitimate end under the American Convention, and (b) are not necessary in a democratic society.
Therefore, as the IACHR did in its 2003 Report on the Situation of Human Rights in Venezuela, the Office of the Special Rapporteur once again concludes that Venezuela’s criminal laws contain provisions that are incompatible with Article 13 of the American Convention and therefore urges the Venezuelan State to take urgent action to bring its criminal laws into compliance with the aforementioned standards on desacato and vilipendio.
2. The Organic Code of Military Justice
Article 505 of the Organic Code of Military Justice provides that: “Whosoever in any way defames, insults or disparages the National Armed Forces or any of its units, shall face a term of three to eight years imprisonment.” Establishing criminal penalties for someone who expresses views that can “offend” or “disparage” institutions is contrary to international standards on freedom of expression, because it is a needless restriction in a democratic society.
As happens in the case of laws criminalizing disrespect, contempt, defamation, and slander, the language of Article 505 is so imprecise as to make it impossible to foresee with any degree of certainty precisely what behaviors can be punishable offenses. The text of the provision blurs the line between the permissible exercise of freedom of expression with respect to the armed forces and the realm in which the legal prohibition applies. Since there can be no certainty as to what behavior or conduct is deemed to be unlawful, any statement that someone can interpret as criticism of the Armed Forces could be covered in the description of the offense in the article in question.
The Inter-American Court of Human Rights addressed this specific provision in the case of Usón Ramírez v. Venezuela, decided in late 2009. In that case, the Court was called upon to examine the case of a retired military officer, Francisco Usón Ramírez, who, while appearing on a television program, had expressed opinions critical of the Armed Forces in a case involving a group of soldiers who had been severely injured in a military institution. Analyzing Article 505 of the Organic Code of Military Justice, the Inter-American Court held that the provision in question “does not establish the elements that may offend, slander, or disparage, and it does not specify whether it is important that the active subject attribute facts that damage the honor or whether it suffices simply to give an offensive or disparaging opinion, without attributing any illicit acts, for example, for the imputation of the crime.” The Court therefore considered that Article 505 “is vague and ambiguous and it does not specify clearly the typical context of a given criminal behavior, which could lead to broad interpretations, allowing the behaviors in question to be penalized incorrectly using the criminalized offense of slander.” It therefore found that the article was incompatible with the American Convention. The Court also found that in this particular case, the use of criminal sanction was unsuitable, unnecessary and disproportionate in a democratic society.
In its ruling the Court ordered, inter alia, that within the space of one year, the State was to vacate the entire military criminal trial instituted against the victim and, within a reasonable period of time, amend Article 505 of the Organic Code of Military Justice. However, as of the date this report went to press, the legal provision remains in effect.
J. Amendments and bills in the National Assembly
1. Regulation of Telecommunications
Telecommunications in Venezuela are regulated, fundamentally, by the Organic Law on Telecommunications and the Law on Social Responsibility in Radio, Television and Electronic Media. These provisions, which were discussed in previous reports, remain in force and in 2010 CONATEL expanded their application to new subjects, such as cable television and Internet providers and users that utilize the internet for content distribution.
The original law gave CONATEL and the Bureau of Social Responsibility the authority to regulate the telecommunications sector and impose sanctions. In August 2010, CONATEL was placed under the Office of the Executive Vice President of the Republic. In the 2009 Annual Report, the IACHR and the Office of the Special Rapporteur reiterated their concern over the laws in force, writing that “the search for a significant degree of impartiality, autonomy and independence for the organs charged with regulating telecommunications in a country arises from the duty of the states to guarantee the highest degree of pluralism and diversity of communications media in the public debate. The necessary safeguards for avoiding the cooptation of the communications media by the political and economic powers are nothing other than a functional and institutional guarantee to promote the formation of free public opinion, fluidity and depth in social communications processes, and the exchange and publication of information and ideas of all kinds. The guarantees of impartiality and independence of the enforcement entity ensure the right of all inhabitants that the communications media will not be, by indirect means, controlled by political or economic groups.”
Again in its 2009 Annual Report, the IACHR urged the state to modify the text of Article 29 of the Law on Social Responsibility, to subject the interpretation of the provisions on sanctions to the regional standards mentioned there, and to establish institutional, organic and functional guarantees to ensure the independence of the authorities enforcing the laws on broadcasting with the aim of ensuring that the opening of administrative proceedings and the eventual imposition of sanctions in the framework of this instrument are the responsibility of impartial organs that are independent of the Executive Branch. To date, however, Article 29 is still in effect and, as will be described below, CONATEL has expanded the scope of its authorities.
In early December 2010, the National Assembly began discussion of a series of bills that have the potential to seriously impact the observance and exercise of human rights. As of the date this report went to press, some of those bills had been passed, while others were on the way to being passed. Of particular concern where freedom of expression is concerned is a law, written in vague language, that gives broad legislative authority to the Executive Branch. Others of concern are those that unduly restrict the right to freedom of thought and expression and another aimed at limiting the activities of social organizations that defend and promote human rights. The National Assembly took less than a week to discuss and vote on these legislative initiatives, since the President let it be known that he wanted them passed before the end of 2010, in other words, before the end of the legislative term, which is December 15, 2010. In effect, President Hugo Chávez Frías said that “there is a set of laws that I need and want to have enacted quickly, by Christmas; these are decrees, emergency laws for housing, urban and rural land. They are special laws.”
One of the laws that the National Assembly passed was the “Enabling Law” that vests the Executive Branch with the authority to exercise legislative functions for a period of twelve months. That law, enacted on December 18, 2010, is written in sweeping and ambiguous language, which implies a delegation of authority that is incompatible with the American Convention. In effect, as the Commission and its Special Rapporteurship for Freedom of Expression stated: “[t]he principle of legality, which must be respected when imposing restrictions on human rights, is jeopardized by permitting the delegation of legislative authority in terms that are overly broad and that could extend to criminal matters. The frequent concentration of executive and legislative functions in a single branch of government, in the absence of appropriate controls and constraints set by the Constitution and the Enabling Law, allows interference in the realm of rights and freedoms.”
From the standpoint of freedom of expression, it is troubling that Article 1(2)(b) of the law gives the President the authority to “enact and amend regulatory provisions in the telecommunications and information technology sector, [and with regard to] the public mechanisms of informatics, electronic and telematic communications.” This provision gives the Executive Branch the authority to modify any telecommunications regime without having to go through the National Assembly, thereby preventing a complex system of laws and regulations –such as the one governing broadcasting- from being discussed and debated in the legislative branch. This type of broad, generic delegation of authority allows the executive branch to act suddenly, without the time necessary to reach a reasonable consensus, and modify a provision on the subject from one moment to the next, even those related to control of content, bans, sanctions and procedures that affect the communications media subject to the State’s control. The mere existence of this possibility could have a chilling effect on freedom of expression incompatible with the American Convention.
That same week, the National Assembly passed an amendment to the Law on Social Responsibility in Radio and Television, now called the Law on Social Responsibility in Radio, Television and Electronic Media. The Chair of the National Assembly’s Commission on Science, Technology and Social Communications, Manuel Villalba, said that the law does not regulate the Internet and observed that it must be interpreted according to the Constitution, which guarantees freedom of expression and free and pluralistic communications, bans prior censorship, and provides for subsequent imposition of liability. According to Deputy Villalba, “[t]he idea is to be able to put this informative medium to good use, while protecting the integrity of the most vulnerable among us, namely children and adolescents.”
As will be briefly examined later in this report, the new law increases the likelihood of interference in Internet content and applications; it adds more conditions to be able to operate as a domestic cable television channel and regulates cable and noncable content; and it adds to the list of prohibitions by introducing a number of extremely broad, far-reaching and ambiguous restrictions. The new law also makes the penalties for violating the bans or prohibitions much stiffer. The amendment does not incorporate any of the recommendations the Commission has made in its various reports, as it offers no new guarantees in proceedings in which penalties are imposed, it does not make the administrative bodies charged with imposing those penalties any more autonomous, and it does not limit the scope of the pre-existing prohibitions, which were already sweeping and ambiguous.
As for the added content restrictions, the bill introduces new prohibitions on conduct using vague and ambiguous language. For example, it prohibits any media outlet, even those on the Internet, regardless of the format, from circulating statements or information that “incite or promote hatred or intolerance”, “cause anxiety and fear in the citizenry”, “ignore the legally constituted authorities,” or “incite or encourage disobedience of the established legal system.” These behaviors are extremely difficult to define, leaving the persons (the broadcasters or carriers of these messages) uncertain as to just how far their right to freedom of expression goes and what ideas or information cannot be broadcast by a cable or noncable communications medium or even over the Internet. For these reasons, and as the Commission has explained, laws and regulations of this type give the authorities charged with enforcing them enormous latitude and discretion to a degree that is incompatible with full observance of the right to freedom of thought and expression.
As previously observed, the new law authorizes the State to restrict access to Internet content or web sites that, in its judgment, violate the ambiguous provisions of the law. Specifically, the law authorizes CONATEL to order electronic media “to refrain from circulating the kinds of messages that the law prohibits”. The law also requires Internet service providers to create mechanisms “that enable them to restrict (…) the dissemination” of messages of this kind and holds a service provider liable for messages circulated by third parties when the service provider fails to take the necessary measures to restrict those messages when so requested by CONATEL which, as previously observed, is an agency of the executive branch. This means that a service provider, like for example a business that provides data hosting or storage services, would have to take immediate steps to eliminate content that CONATEL deems to be prohibited whenever CONATEL simply issues an administrative order to that effect. The digital media that violate these regulations could face fines of up to 13 thousand bolivars (three thousand United States dollars). Furthermore, those that do not comply with CONATEL’s orders regarding prohibited content could be fined as much as four percent of the gross profits earned in the year prior to the one in which the violation was committed. Service providers that do not respond to the government’s requests could face fines based on “10 percent of the previous year’s gross earnings” as well as “suspension of service for 72 uninterrupted hours.”
The possibility of the government excluding any electronic media content when, in its judgment, the ideas or information stored might cause anxiety and fear in the public, promote intolerance, ignore the authorities, or promote noncompliance with the legal system, without any guarantee of due process, appears to constitute a restriction on the right to freedom of expression on those who transmit that content and those who receive it, as well as a violation of due process and of freedom of expression in the case of those who originated the banned message, whose views are silenced and excluded from the Internet without understanding clearly what the prohibited content is and without ever having had the opportunity to defend themselves before an impartial authority separate from the executive branch. In order to avoid the possible abuses that can be committed via the Internet, there are general standards that apply in cases in which a message has done unwarranted harm. These provisions should apply only to the authors of Internet content, i.e., those who are directly responsible for the offending content. Only in very rare cases can an independent judicial authority order certain network content removed, and then only in strict and complete conformity with international human rights norms. To do so, the provisions applied must conform to international law and must be fully respectful of the guarantees of due process; adequate and effective control and oversight must be in place.
For these reasons, the IACHR and its Office of the Special Rapporteur for Freedom of Expression questioned the reform. They expressed that “[b]y holding service providers responsible and extending the application of vague and ambiguous norms that have been questioned by the IACHR and the Office of the Special Rapporteur in their 2009 report Democracy and Human Rights in Venezuela, the draft law targets freedom of expression on the Internet in an unprecedented fashion. The initiative includes ambiguous norms that sanction intermediaries for speech produced by third parties, based on assumptions that the law does not define, and without guaranteeing basic elements of due process. This would imply a serious restriction of the right to freedom of expression enshrined in the American Convention on Human Rights.”
The National Assembly also passed a bill amending the Organic Law on Telecommunications. The bill declares “telecommunications, radio, television and domestic audiovisual production services” to be public interest services, which means that “they may be subject to the limitations and restrictions that the Constitution and law establishes for the sake of the public interest.” Given the broad legislative power that has been given to the President through the “Enabling Law,” the Executive Branch now has the authority to institute any restriction or limitation that, in its judgment, is called for in the area of telecommunications. The amendment of the Law on Telecommunications also provides that it shall be the National Telecommunications Commission (CONATEL) that determines the “General conditions that those seeking to obtain a government license, concession or permit under the provisions of this law must meet,” which means that a government agency in the executive branch (CONATEL) is being given the authority to determine the conditions under which one can engage in radio broadcasting in Venezuela. The law provides that current providers of domestic audiovisual production services must re-apply to CONATEL in order to be able to remain in operation, even though they may already have valid, current operating licenses. The law authorizes a government agency to revoke licenses or concessions when “it deems such action to be in the Nation’s interest or when public order or security so demands.” Finally, the provision stipulates that repeat offenders of any of the violations proscribed in the first section of Chapter II of the law shall face the possibility of losing their radio frequency concession if the repeat offense occurs within the space of one year from the date on which the first violation was definitively established. This means that recidivism with respect to any of the offenses proscribed by the law, even those punishable by a fine, will lead to loss of the operating license. All decisions in such cases shall be taken by the Executive Branch.
The IACHR and its Special Rapporteurship for Freedom of Expression indicated their concern over these reforms, as the new law creates very powerful mechanisms for interfering in the communications media, but adds no guarantees to ensure that such mechanisms will not be used to prevent dissemination of information that may be unsettling for the authorities. Furthermore, the law establishes very strict conditions for engaging in radio broadcasting which, when combined with enforcement by an agency in the executive branch and patently ambiguous provisions, renders broadcasters highly vulnerable to possible pressure or abuses on the part of State authorities.
2. Other laws passed in December 2010 that restrict freedom of expression
The bill bill passed by the National Assembly, called Law on Defense of the Nation’s Political Sovereignty and Self-Determination is also troubling. This law makes it illegal for organizations charged with promoting citizen participation, overseeing the exercise of public power or defending the full exercise of political rights, to receive funds in the form of international cooperation. It also establishes severe penalties for the organizations and their members if such funding is received. Those penalties include political disqualification for periods ranging from five to eight years. This bill is of great concern, because “of the possibility that non-governmental human rights organizations whose purpose is to monitor the exercise of public power (which is true of the vast majority of these organizations) will see their capacity to perform their important functions seriously compromised”. In Latin America, most non-governmental organizations dedicated to defending and promoting human rights and monitoring the government rely on the funding they receive through international cooperation in order to be able to function effectively, since there are few or no opportunities for financial independence at the local level. By prohibiting funding of this kind, the law proposed in the National Assembly would have the effect of shutting down all independent organizations, which in recent years have done important work in all countries in the region to defend and promote human rights, often by bringing cases to the inter-American system for the protection of human rights.
That same bill makes it illegal for any Venezuelan citizen to invite to the country any foreign person or organization that expresses views that may “[offend] the institutions of the State, its high-ranking officials or attack its exercise of sovereignty.” It also stipulates that aliens who participate in such activities will be expelled from Venezuelan territory; sanctions will be imposed on the citizens who invited them to Venezuela.
Finally, the National Assembly passed a bill on University Education which, at the time this report went to press, had generated a broad national debate. This bill provides that university education is not just a universal human right, but also “an irrevocably public good that serves to transform society, (…) in the context of building a socialist society” and “to build cultural hegemony to definitively do away with capitalist society.” The State’s establishment of public policies in the area of university education is a legitimate State objective. However, that objective must be pursued within the boundaries that respect for human rights imposes. In the area of university education, those rights include, inter alia, the right to freedom of thought and expression, which is the very basis of academic freedom. Although the law establishes strong mechanisms for intervention in university affairs and in the content of instruction, the law does refer to the autonomy of universities and provides that their autonomy shall be exercised “through academic freedom, in order to debate the current trends in thinking.” From that standpoint, the bill poses a serious contradiction since freedom of thought and expression, which is the basis of academic freedom, is to be strictly observed in the academic and university environment, and can in no way be limited by subordinating it to the ideological, religious or moral principles that the State imposes as an obligation.
ECONOMIC, SOCIAL AND CULTURAL RIGHTS
In its Report on Democracy an Human Rights of 2009, the Commission analyzed the legal framework of protection of economic, social, and cultural rights in Venezuela as well as the status of such rights taking particular account of poverty, education, and health indicators, in the light of the American Convention on Human Rights, the San Salvador Protocol and the Inter-american Democratic Charter. Within that legal framework of protection, the Commission considered the protection of the rights of indigenous peoples along with trade unions rights.
During 2010, the Commission received information from civil society to the effect that between 2009 and 2010 “the severe structural deficiencies present in virtually every realm of social welfare (health, education, work, food and housing) persisted, which points up the State’s failure to observe and comply with the guarantees of these rights upheld in the Constitution.”
At the Commission’s 140th Session, a hearing was held at the State’s request, where it explained the progress made, particularly with respect to the exercise of economic, social and cultural rights. The State supplied information on its fulfillment of the Millennium Development Goals and presented a study that relied on comparative indicators spanning the period from 1990 –the majority- to the present day, to show the improvements made by the Government. The State reported that the objectives set out in the directive “Supreme Social Happiness” are as follows: to reduce poverty to zero and accelerate the rate at which poverty declines; transform the corporate production relationships by building socialist-type relationships based on communal ownership; promote a liberating and unifying ethic, culture and education, and deepen the solidarity with the alienated sectors of Latin America and the Caribbean. It maintained that the Bolivarian Government’s social and economic policy had made it possible for Venezuelan society, working together, to achieve the goals of reducing poverty and of instituting gender equality, eradicating illiteracy, providing persons with HIV-AIDS free treatment, reducing tuberculosis morbidity and mortality, supplying potable water and the goals of environmental protection. It also maintained that significant progress has been made in making the benefits of the new information and communications technologies available, and that it was on its way to achieving the goals of reducing infant mortality, making elementary education universal, and others.
The Report prepared by the United Nations Development Programme and the OAS General Secretariat, published in October 2010, featured a table of indicators of poverty, indigence and economic inequality in Latin America (1999-2008) which shows that the poverty rate in Venezuela dropped from 49.9% to 27.6%; the report also ranks Venezuela in 6th place of the countries with the strongest indicators in the region. As for indigence, the report states that the 1999 figure of 21.7% dropped to 9.9% by 2008; unemployment was also down in urban areas, from 11.7% in 2000 to 6.8% in 2008.
In its report titled “CEPAL evalúa impacto de la recuperación económica en la pobreza de la región” [ECLAC evaluates economic recovery’s impact on poverty in the region], ECLAC underscores the progress that Venezuela has made toward poverty reduction.
Based on the information received, the Commission acknowledges and appreciates the progress made in the area of economic, social and cultural rights through policies and measures designed to correct the problems plaguing broads sectors of the Venezuelan population, and the progress that Venezuela has made in instituting laws that protect and guarantee these rights. The priority that the State assigns to this measure is essential in guaranteeing a decent life for the Venezuelan population and lays a fundamental piece of the foundation necessary for preserving democratic stability.
On the other hand, the Commission observes that Venezuela has not yet completed ratification of the Additional Protocol to the American Convention in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), under which the States parties pledge to adopt the necessary measures, to the extent that the available resources allow and taking their degree of development into account, for the purpose of achieving progressively and pursuant to their domestic laws, the full observance of economic, social and cultural rights. Venezuela signed the Protocol of San Salvador on January 27, 1989. The National Assembly discussed and approved it in March 2005; on May 23, 2005 it was published in the Official Gazette of the Bolivarian Republic of Venezuela under number 38,192. Nevertheless, the State has not yet ratified that instrument with the Organization of American States. Therefore, the Commission calls upon the Venezuelan State to complete its ratification of the Protocol of San Salvador.
RECOMMENDATIONS
The Commission is reiterating the specific recommendations made in the various chapters of the Report on Democracy and Human Rights in Venezuela and its final observations, which follow:
Guarantee the full exercise of political rights to all individuals, irrespective of their positions on government policies, and adopt the measures necessary to promote tolerance and pluralism in the exercise of political rights.
Refrain from taking reprisals or using the punitive power of the State to intimidate or sanction individuals based on their political opinions, and guarantee the plurality of opportunities and arenas for democratic activity, including respect for gatherings and protests held in exercise of the right of assembly and peaceful protest.
Effectively guarantee the separation and independence of the branches of government and, in particular, adopt urgent measures to ensure the independence of the judicial branch, by strengthening the procedures for appointing and removing judges and prosecutors, affirming their job stability and eliminating the provisional status in which the large majority of judges and prosecutors find themselves.
Adopt the measures necessary to protect the life and personal integrity of all persons, as well as specific measures to protect social communicators, human rights defenders, unionists, individuals who participate in public demonstrations, individuals who have been deprived of their liberty, and the LGTBI community. Additionally, strengthen the institutional capacity of the judicial bodies to combat the pattern of impunity in cases of violence and guarantee due diligence and effectiveness in the investigations into these cases.
Adopt urgent measures aimed at dismantling the armed civilian groups that operate outside the law and sanction the illicit acts of these groups to prevent acts of violence from being repeated in the future.
From the highest levels of government, continue to publicly condemn acts of violence against social communicators, communications media, human rights defenders, unionists, and political dissidents, with the aim of preventing actions that foment these crimes and of avoiding continued cultivation of a climate of stigmatization towards those who maintain a stance critical of government actions.
Promote a climate of tolerance that encourages and is conducive to the active participation of and an exchange of ideas among the various sectors of society, and design institutions that promote rather than inhibit or thwart public discourse.
Guarantee the conditions necessary for defenders of human rights and union rights to be able to engage freely in their activities, and refrain from taking any action or adopting any legislation that would limit or impede their work.
Take all necessary measures so that women who are victims of violence have full access to proper judicial protection and adopt the legal, judicial and other mechanisms necessary to investigate, punish and provide reparations when complaints are filed reporting violence committed against women in Venezuela.
Adopt urgent measures to comply with the State’s obligation to demarcate and delimit the ancestral lands of the Venezuelan indigenous communities, establishing adequate and effective procedures for such measures and for effectively giving the corresponding communities legal title to the lands.
Urgently adopt the measures necessary to correct the procedural delays and the high percentage of persons deprived of liberty without a final verdict, thereby avoiding the excessive, unnecessary and disproportionate reliance on preventive detention or detention pending trial . Also, take measures to reduce prison overcrowding and improve detention conditions so that they are in line with international standards in this area, while taking particular care to ensure safety inside prisons, effective control of weapons inside prisons, proper segregation of the inmate population to conform to the categories and criteria established in the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, and to prohibit prisons from holding more prisoners than they have space for.
Step up efforts so as to gradually give full effect to economic, social and cultural rights while ensuring that that this does not come at the cost of the people’s other basic rights. Furthermore, adopt public policies that allow for long-term continuity of efforts to guarantee economic, social and cultural rights, thereby ensuring that full enjoyment of these rights will not depend on the resolve of any future administration.
Implement the laws and mechanisms necessary so that the citizenry has easy and effective access to public information and ensure widespread circulation of information on the business of the various organs of government.
Adjust domestic law to conform to the parameters established by the inter-American human rights system, while taking into account the recommendations on the specific provisions that the Commission has examined in this report, including the laws approved by the National Assembly in December 2010.
Complete the ratification of the Protocol of San Salvador.
Finally, as it did in the Report on Democracy and Human Rights in Venezuela, the Commission is once again urging the State to comply with the international obligations it undertook upon ratifying the American Convention. Accordingly, it is reiterating its interest in making a visit to Venezuela and extends, within the framework of its competencies, its offer of cooperation and advisory assistance to the Venezuelan State to facilitate the adoption of the measures necessary to enable the State to carry out the Commission’s recommendations.
Article 59 of the Commission’s Rules of Procedure reads as follows: "1. The Annual Report presented by the Commission to the General Assembly of the OAS shall include the following: [...] h. any general or special report the Commission considers necessary with regard to the situation of human rights in Member States, and, as the case may be, follow-up reports noting the progress achieved and the difficulties that have existed with respect to the effective observance of human rights; […] 2. For the preparation and adoption of the reports provided for in paragraph 1.h of this article, the Commission shall gather information from all the sources it deems necessary for the protection of human rights. Prior to its publication in the Annual Report, the Commission shall provide a copy of said report to the respective State. That State may send the Commission the views it deems pertinent within a maximum time period of one month from the date of transmission. The contents of the report and the decision to publish it shall be within the exclusive discretion of the Commission.”
In its reply of February 18, 2011, the State observed that Venezuela is a sovereign country that demands that its economic and political Independence be respected. It reiterated that “the IACHR will visit again when it acknowledges that it supported the de facto government of Pedro Carmona Estanga.”
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 180; IACHR. Second Report on the Situation of Human Rights in Peru, June 2, 2000, Chapter II, para. 1; IACHR. Report on the Situation of Human Rights in Venezuela, October 24, 2003, para. 150.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 181; Venezuelan State’s response to the questionnaire for the analysis of the human rights situation in Venezuela. August 13, 2009, p. 9.
I/A Court H.R., Case of the Constitutional Court v. Peru, Merits, Reparations, and Costs, Judgment of January 31, 2001, Series C No. 71, paragraph 73; and Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment of August 5, 2008, Series C No. 182, para. 55.
Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment of August 5, 2008, Series C No. 182, and Case of Reverón Trujillo v. Venezuela. Judgment of June 30, 2009. Series C. No. 197.
IACHR. Report on Terrorism and Human Rights. October 22, 2002, para. 229.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, paragraphs 187-201.
Information received during the hearing on Democratic Institutions and Human Rights Defenders in Venezuela, 140th Session, October 29, 2010.
Article 255 of the Constitution of the Bolivarian Republic of Venezuela: “Appointments to judicial positions and promotions of judges shall be done by means of public competitions to ensure the suitability and excellence of the participants, with selection by the juries of the judicial circuits, in such a manner and on such terms as may be established by law. The appointment and swearing in of judges shall be the responsibility of the Supreme Court of Justice. Citizen participation in the process of selecting and designating judges shall be guaranteed by law. Judges shall be removed or suspended from office only through the procedures expressly provided by law.”
Information received during the hearing on Democratic Institutions and Human Rights Defenders in Venezuela, 140th Session, October 29, 2010.
See IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, paragraphs 202-205.
Article 267 of the Constitution of the Bolivarian Republic of Venezuela reads as follows: “The Supreme Court shall direct, govern and administer the Judicial Branch, inspect and monitor and courts of the Republic and the Public Defenders Offices. It shall also prepare and execute its own budget and the budget of the Judicial Branch.
Discipline within the judicial system shall be the responsibility of the disciplinary tribunals that the law determines.
The disciplinary system for magistrates and judges will be based on the Code of Ethics for the Venezuelan Judge, which the National Assembly shall enact. Disciplinary proceedings shall be public, oral and swift, in keeping with due process, and under the terms and conditions that the law establishes.
To discharge these functions, the Supreme Court en banc shall create an Executive Directorate of the Judiciary, with regional offices.”
See, inter alia: Resolution No. 2010-003 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of January 21, 2010; Resolution No. 2010-008 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of January 25, 2010; Resolution No. 2010-009 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of January 25, 2010; Resolution No. 2010-010 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of January 25, 2010; Resolution No. 2010-015 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of February 8, 2010; Resolution No. 2010-016 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of February 8, 2010; Resolution No. 2010-021 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of February 23, 2010; Resolution No. 2010-022 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of February 23, 2010; Resolution No. 2010-023 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of February 23, 2010; Resolution No. 2010-025 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of March 12, 2010; Resolution No. 2010-029 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of April 8, 2010; Resolution No. 2010-033 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of April 8, 2010; Resolution No. 2010-034 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of April 8, 2010; Resolution No. 2010-042 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of April 28, 2010; Resolution No. 2010-037 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of April 22, 2010; Resolution No. 2010-040 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of April 27, 2010; Resolution No. 2010-041 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of April 27, 2010; Resolution No. 2010-042 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of April 28, 2010; Resolution No. 2010-043 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of April 28, 2010; Resolution No. 2010-045 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of April 29, 2010; Resolution No. 2010-046 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of May 11, 2010; Resolution No. 2010-047 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of May 11, 2010; Resolution No. 2010-047-A of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of May 11, 2010; Resolution No. 2010-048 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of May 11, 2010; Resolution No. 2010-049 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of May 11, 2010; Resolution No. 2010-054 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of May 18, 2010; Resolution No. 2010-055 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of May 18, 2010; Resolution No. 2010-056 of the Supreme Court of Justice of the Bolivarian Republic of Venezuela of May 18, 2010.
IACHR. 2007 Annual Report. Chapter IV. Venezuela, para. 281; IACHR. 2008 Annual Report. Chapter IV. Venezuela, para. 393.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 269.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 274; Supreme Court of Justice, Resolution 2010-0004 of January 25, 2010; Supreme Court of Justice, Resolution 2010-011 of February 8, 2010; Supreme Court of Justice, Resolution 2010-0017 of February 23, 2010; Supreme Court of Justice, Resolution 2010-0036 of April 22, 2010; Supreme Court of Justice, Resolution 2010-0038 of April 23, 2010; Supreme Court of Justice, Resolution 2010-0039 of April 27, 2010; Supreme Court of Justice, Resolution 2010-0044 of April 29, 2010; Supreme Court of Justice, Resolution 2010-0046 of May 11, 2010; Supreme Court of Justice, Resolution 2010-0051 of May 18, 2010; Supreme Court of Justice, Resolution 2010-0058 of June 15, 2010.
I/A Court H.R., Case of the Constitutional Court v. Peru, Merits, Reparations, and Costs, Judgment of January 31, 2001, Series C No. 71, paragraph 75; Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment of August 5, 2008, Series C No. 182, para. 138.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 239.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 242.
Article 47 of the Code of Ethics provides that these associations will be established in each state and in the Capital District, composed of one representative of the judicial branch, one representative of the Public Prosecutor’s Office, one representative of the Public Defender’s Office, one representative of the attorneys licensed to practice, and 10 delegates from the Communal Councils legally organized by each of the federal entities in exercise of the people’s sovereignty and participatory and activist democracy.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, paragraphs 245-249.
Information received during the hearing on Democratic Institutions and Human Rights Defenders in Venezuela, 140th Session, October 29, 2010.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 265.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 265, and IACHR, 2006 Annual Report. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 167.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 225.
Information received during the hearing on Democratic Institutions and Human Rights Defenders in Venezuela, 140th Session, October 29, 2010.
See, inter alia: Official Gazette of the Bolivarian Republic of Venezuela of January 20, 2010; Official Gazette of the Bolivarian Republic of Venezuela of January 22, 2010; Official Gazette of the Bolivarian Republic of Venezuela of February 10, 2010; Official Gazette of the Bolivarian Republic of Venezuela of March 3, 2010; Official Gazette of the Bolivarian Republic of Venezuela of March 18, 2010; Official Gazette of the Bolivarian Republic of Venezuela of April 8, 2010; Official Gazette of the Bolivarian Republic of Venezuela of April 9, 2010; Official Gazette of the Bolivarian Republic of Venezuela of April 12, 2010; Official Gazette of the Bolivarian Republic of Venezuela of April 14, 2010; Official Gazette of the Bolivarian Republic of Venezuela of May 5, 2010; Official Gazette of the Bolivarian Republic of Venezuela of May 6, 2010; Official Gazette of the Bolivarian Republic of Venezuela of May 18, 2010; Official Gazette of the Bolivarian Republic of Venezuela of June 3, 2010; Official Gazette of the Bolivarian Republic of Venezuela of June 4, 2010; Official Gazette of the Bolivarian Republic of Venezuela of July 19, 2010; Official Gazette of the Bolivarian Republic of Venezuela of July 21, 2010; Official Gazette of the Bolivarian Republic of Venezuela of July 26, 2010; Official Gazette of the Bolivarian Republic of Venezuela of July 27, 2010; Official Gazette of the Bolivarian Republic of Venezuela of August 25, 2010; Official Gazette of the Bolivarian Republic of Venezuela of September 3, 2010; Official Gazette of the Bolivarian Republic of Venezuela of September 6, 2010; Official Gazette of the Bolivarian Republic of Venezuela of September 7, 2010.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 219; IACHR. Access to Justice and Social Inclusion: the Road towards Strengthening Democracy in Bolivia. June 28, 2007, para. 96.
Cf. ECHR. Case of Campbell and Fell v. the United Kingdom, Judgment of 28 June 1984, Series A No. 80, para. 78; ECHR. Case of Langborger v. Sweden, Judgment of 22 January 1989, Series A No. 155, para. 32.
United Nations Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Milan from August 26 to September 6, 1985, and endorsed by General Assembly resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985.
I/A Court H.R., Case of the Constitutional Court v. Peru, Merits, Reparations, and Costs, Judgment of January 31, 2001, Series C No. 71, paragraph 75.
Cf. I/A Court H.R., Case of the Constitutional Court v. Peru, Merits, Reparations, and Costs, Judgment of January 31, 2001, Series C No. 71, paragraph 75.
Cf. I/A Court H.R., Case of the Constitutional Court v. Peru, Merits, Reparations, and Costs, Judgment of January 31, 2001, Series C No. 71, paragraph 75; and Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment of August 5, 2008, Series C No. 138.
Cf. Principles 18 and 19 of the United Nations Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Milan from August 26 to September 6, 1985, and endorsed by General Assembly resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985.
Supreme Court of Justice, en banc, Resolution No. 2010-0011 of March 10, 2010, published in the Ordinary Official Gazette No. 39,324 of May 14, 2010.
Article 8 of the Organic Law of the Supreme Court of Justice, published in Official Gazette No. 39,522, October 1, 2010.
IACHR, Follow-up Report on Compliance by the State of Venezuela with the Recommendations made by the IACHR in Its 2003 Report on the Situation of Human Rights in Venezuela, para. 180.
Article 264 of the Constitution reads as follows: “The justices of the Supreme Court of Justice shall be elected for a single term of twelve years. The election procedure shall be determined by law. In all cases, candidates may be proposed to the Judicial Nominations Committee either on their own initiative or by organizations involved in the field of law. The Committee, after hearing the community’s views, will carry out a preliminary selection for presentation to the citizens’ branch, which shall then carry out a second pre-selection for submission to the National Assembly, which shall then make the final selection. Citizens may file objections to any of the candidates, for cause, with the Judicial Nominations Committee or the National Assembly.”
El Universal, May 17, 2010, En Gaceta resolución de jubilación de magistrados [Gazette has resolution on justices’ retirement], available [in Spanish] at: HYPERLINK "http://www.eluniversal.com/2010/05/17/polavaen-gaceta-resolucion17A3888263.shtml" http://www.eluniversal.com/2010/05/17/polavaen-gaceta-resolucion17A3888263.shtml
Official Gazette No. 39,569 of December 8, 2010. Issuing body: National Assembly. Title: Designation of principal and alternate members of the Constitutional, Electoral, Political-Administrative, Social Cassation, Criminal Cassation and Civil Cassation Chambers of the Supreme Court of Justice.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, paragraphs 285 –301.
According to Opinion No. 20/2010 of September 3, 2010 of the United Nations Human Rights Council’s Working Group on Arbitrary Detention, Judge Afiuni Mora had ordered the conditional release on bail of Mr. Cedeño, in full exercise of her jurisdictional authority; in place of his preventive detention, she ordered less severe measures, among them prohibiting him from leaving the country, withholding his passport, and requiring him to make a court appearance every 15 days.
IACHR, Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, paragraph 297.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 297; United Nations Human Rights Council’s Working Group on Arbitrary Detentions, Opinion No. 20/2010 (Bolivarian Republic of Venezuela) adopted on September 3, 2010, in the case of the detention of Judge María Lourdes Afiuni Mora in Venezuela, para. 7 (translation ours).
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 298.
United Nations Human Rights Council’s Working Group on Arbitrary Detention, Opinion No. 20/2010 (Bolivarian Republic of Venezuela), adopted on September 3, 2010, in connection with the case of the detention of Judge María Lourdes Afiuni Mora in Venezuela, para. 9 (translation ours).
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 299.
United Nations Human Rights Council’s Working Group on Arbitrary Detention, Opinion No. 20/2010 (Bolivarian Republic of Venezuela), adopted on September 3, 2010, in connection with the case of the detention of Judge María Lourdes Afiuni Mora in Venezuela, para. 11 (translation ours).
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 300; Statement available at: HYPERLINK "http://www.unog.ch/unog/website/news_media.nsf/(httpNewsByYear_en)/93687E8429BD53A1C125768E00529DB6?OpenDocument" http://www.unog.ch/unog/website/news_media.nsf/(httpNewsByYear_en)/93687E8429BD53A1C125768E00529DB6?OpenDocument
On January 11, 2010, the Inter-American Commission on Human Rights granted precautionary measures for Judge Afiuni and requested that the Venezuelan State: 1) adopt the measures necessary to safeguard the life and safety of Judge Afiuni; 2) adopt measures for Judge Afiuni’s transfer to a safe location, and 3) report on the measures put in place to investigate the facts that warranted adoption of precautionary measures. See IACHR, Precautionary Measures MC 380-09 – María Lourdes Afiuni, Venezuela, available at: http://www.IACHR.oas.org/medidas/2010.eng.htm.
Article. Anyimar Cova Lugo, “Denuncian tortura psicológica contra la jueza Afiuni” [Mental torture of Judge Afiuni denounced], El Universal, available [in Spanish] at HYPERLINK "http://www.eluniversal.com/2010/11/16/pol_ava_denuncian-tortura-ps_16A4736457.shtml" http://www.eluniversal.com/2010/11/16/pol_ava_denuncian-tortura-ps_16A4736457.shtml
I/A Court H.R., Matter of María Lourdes Afiuni regarding Venezuela. Order of the President of the I/A Court H.R., December 10, 2010 [available in Spanish only].
I/A Court H.R., Matter of María Lourdes Afiuni regarding Venezuela. Order of the I/A Court H.R., December 10, 2010, p. 13 [available in Spanish only].
United Nations Human Rights Council’s Working Group on Arbitrary Detention, Opinion No. 20/2010 (Bolivarian Republic of Venezuela), adopted September 3, 2010, in connection with the case of the detention of María Lourdes Afiuni Mora in Venezuela.
European Parliament resolution of 8 July 2010 on Venezuela, in particular the case of María Lourdes Afiuni, available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2010-0289+0+DOC+XML+V0//EN
Statement by the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Carina Knaul de Albuquerque e Silva. TERRORISM AND GLOBAL SECURITY: THREATS TO THE INDEPENDENCE OF THE JUDICIARY IN A CHANGING WORLD. INTERNATIONAL ASSOCIATION OF WOMEN JUDGES, 2010 10TH BIENNIAL INTERNATIONAL CONFERENCE, SEOUL, REPUBLIC OF KOREA, May 12, 2010.
Statement by Ms. Navanethem Pillay, United Nations High Commissioner for Human Rights, International Association of Women Judges, Jubilee Biennial Conference, Seoul, 12 May 2010.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter III, para. 301.
See, OEA/Ser.L/V/II.124, Doc. 5 rev.1, March 7, 2006, available at: HYPERLINK "http://www.cidh.oas.org/countryrep/Defenders/defenderstoc.htm" http://www.IACHR.oas.org/countryrep/Defenders/defenderstoc.htm, para. 23.
IACHR, Report on the Situation of Human Rights in Venezuela. October 24, 2003, para. 222.
I/A Court H.R. Case of Lysias Fleury. Order of June 7, 2003, consideranda 5; Case of Nieto Palma. Order of July 9, 2004, consideranda 8.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter V, para. 621; IACHR. Report on the Situation of Human Rights Defenders in the Americas. March 7, 2006, paragraph 41.
The following are among the most emblematic cases brought to the Commission’s attention: 1) the case of Wilfredo Rafael Hernández Avilés, Jesús Argenis Guevara and Jesús Alberto Hernández, officials of the Bolivarian Union of Workers in the Construction, Timber, Heavy Machinery, and Similar Industries, who were found shot to death in the vehicle in which they were traveling along the El Tigre-Pariaguán highway (state of Anzoátegui) on June 24, 2009; 2) the case of David David Alexander Zambrano and Freddy Miranda, members of the Single Construction Industry Trade Union (SUTIC), who were murdered on October 29, 2009; 3) the case of Héctor Montaño López, President of the Metam Petrol Bolívar trade union, who was murdered in San Félix (state of Bolívar) on December 23, 2009, when unidentified persons fired on him as they passed him on a motorcycle; 4) the case of Vilma Yenitza Zambrano and Rafael Antonio García, officials in the Venezuelan Workers Union for the Construction and Related Industries of the Capital District (SOVICA), employed in the construction work being done on the Caracas-Los Teques metro line, who were murdered on March 10, 2010, by someone who shot them at close range; 5) the case of Francisco Ferreira, delegate for control of working conditions and environment and union delegate claims secretary in the workers’ union of the company SIDETUR (Siderúrgica del Turbio), who was murdered on March 27, 2010, shot by persons unknown; and 6) the case of Jerry José Díaz, who was public information secretary for the union of the Manpa company (Sintrampa) and a member of the Ccura union movement, who was killed by two unidentified persons on April 24, 2010, in the La Barraca sector of Maracay (state of Aragua) as he was in a car waiting for his wife and children.
According to the information received, Mijail’s father told the media that the motive for the murder was political and that its purpose was to silence complaints of human rights violations committed in that region of the country. The Anti-Impunity Victims Committee to which Mijail Martínez belonged was founded in 2004 and has been denouncing the involvement of high-ranking regional officials in the creation of police mafias. Reports are that the murder occurred in a context of serious human rights violations in the region, which human rights organizations like Provea have been reporting. Indeed, the Lara State Police Force is the second police force denounced for violations of the right to life.
Information supplied during the hearing on Democratic Institutions and Human Rights Defenders in Venezuela, held during the Commission’s 140th Session.
The 358th Report of the Committee on Freedom of Association (ILO), paragraph 1012, available at: HYPERLINK "http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_146695.pdf" http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_146695.pdf
IACHR, Press Release 77/10, HYPERLINK "http://www.cidh.oas.org/Comunicados/Spanish/2010/77-10sp.htm" IACHR expresses concern over deaths and injuries during demonstrations in Panama. Washington, D.C., August 3, 2010, available at: http://www.IACHR.oas.org/Comunicados/English/2010/77-10eng.htm.
IACHR Concerned about the Use of the Punitive Power of the State to Silence Opponents in Venezuela. Washington, D.C., March 25, 2010.
Information supplied in the hearing on “Democratic Institutions and Human Rights Defenders in Venezuela,” held during the Commission’s 140th session.
Information supplied in the hearing on “Democratic Institutions and Human Rights Defenders in Venezuela,” held during the Commission’s 140th session.
Ameco. Venezuela: Mujeres yukpas denuncian violaciones por parte de militares [Yukpa Women Denounce Rapes by Military]. Available [in Spanish] at: HYPERLINK "http://www.amecopress.net/spip.php?article4616" http://www.amecopress.net/spip.php?article4616; SEMLAC, HYPERLINK "http://www.redsemlac.net/web/index.php?option=com_content&view=article&id=663:venezuela-mujeres-yukpas-denuncian-violaciones-por-parte-de-militares&catid=45:derechos-indigenas&Itemid=64" http://www.redsemlac.net/web/index.php?option=com_content&view=article&id=663:venezuela-mujeres-yukpas-denuncian-violaciones-por-parte-de-militares&catid=45:derechos-indigenas&Itemid=64
IACHR, 140th Session, Hearing on “Citizen Security, Prisons, Sexual Diversity, and Equality in Venezuela.”
In its communication of February 18, 2011, the State indicated that despite the complaints filed by Mr. Humberto Prado, “nothing has happened to him, thanks to God and to the rule of law that prevails in Venezuela.”
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter 5, para. 603.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter 5, para. 562.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter 5, para. 562.
Supreme Court of Justice, Constitutional Chamber, “Ombudsman’s Office v. National Legislative Commission,” June 30, 2002, Judgment “Governors v. Minister of Finance”, November 21, 2000.
Supreme Court of Justice of Venezuela, Constitutional Chamber, Justice writing the decision: Jesús Eduardo Cabrera Romero, Judgment of November 21, 2000.
Members of the Foro por la Vida: Acción Ciudadana Contra el Sida [Citizen Action against AIDS] (ACCSI), Cáritas de Venezuela [Caritas of Venezuela], Cáritas de Los Teques [Caritas of Los Teques], the Human Rights Center of the Universidad Católica Andrés Bello, the Center for Peace of the Universidad Central de Venezuela, Comité de Defensa del estado Guárico [Guárico State Defense Committee], Comité de Familiares y Víctimas de los sucesos febrero-marzo de 1989 [Committee of Relatives and Victims of the events of February-March 1989] (COFAVIC), Espacio Público [Public Arena], Fundación de Derechos Humanos de Anzoátegui [Anzoátegui Human Rights Foundation], Observatorio Venezolano de Prisiones [Venezuelan Observatory of Prisons], Red de Monitores de Táchira [Táchira Monitors Network], Servicio Jesuita para Refugiados [Jesuit Service for Refugees], Vicaría de Derechos Humanos Caracas [Caracas Human Rights Vicariate] and Vicaría de Puerto Ayacucho [Puerto Ayacucho Vicariate].
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter 5, para. 575.
On July 23, 2010, the Commission, exercising its authorities under Article 41 of the American Convention, asked the Venezuelan State to report the following to the Commission within five days: the criminal investigations that were requested; the organizations and persons that are the targets of the requested criminal investigations; the bases or grounds for requesting those investigations; and, most especially, the laws and regulations that prohibit NGOs from receiving international funding and the status of the earlier cases. In a communication dated August 10, 2010, the State informed the IACHR that in fact, on July 13, 2010, the Movimiento Periodismo Necesario, represented by journalists Esther Quiaro, Harin Rodriguez D´Santiago and Isidoro Hugo Duarte, filed a complaint with the Prosecutor General’s Office asking for an investigation of the millions of dollars in financing that the United States Government’s Department of State was allegedly funneling to media outlets and journalists by way of Venezuelan nongovernmental organizations, as reported in documents declassified and researched by Eva Golinger, a Venezuelan-American journalist.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter 5, paragraphs 576- 581.
IACHR, Press Release 118/10, IACHR concerned over International Cooperation initiative in Venezuela, December 3, 2010.
Communication from the State, dated February 18, 2011.
Official Gazette of the Bolivarian Republic of Venezuela, Special Issue No. 6,009, Caracas, Friday, December 17, 2010.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter 5, para. 560.
Information supplied during the hearing on Democratic Institutions and Human Rights Defenders in Venezuela, held during the Commission’s 140th session.
Information supplied during the hearing on Democratic Institutions and Human Rights Defenders in Venezuela, held during the Commission’s 140th session.
IACHR. Report on the Situation of Human Rights Defenders in the Americas. March 7, 2006, paragraph 69.
IACHR. Report on the Situation of Human Rights Defenders in the Americas. March 7, 2006, paragraph 76.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter II, para. 18.
I/A Court H.R. Case of Castañeda Gutman v. Mexico. Judgment of August 6, 2008. Series C No. 184, para. 143.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter II, para. 95.
IACHR, Press release 36/10, IACHR Concerned about the Use of the Punitive Power of the State to Silence Opponents in Venezuela. Washington, D.C., March 25, 2010.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter II, para. 48.
Information received during the Commission’s hearing on Democratic Institutions and Human Rights Defenders in Venezuela, 140th session, October 29, 2010. VTV, 01.06.2010. Inhabilitaciones impuestas por la Controlaría General están ajustadas a derecho [Disqualifications ordered by the Office of the Comptroller General are lawful]. Available [in Spanish] at: HYPERLINK "http://www.vtv.gob.ve/noticias-nacionales/36649" http://www.vtv.gob.ve/noticias-nacionales/36649. Cited in Civilis. Investigación y Acción de la Sociedad Civil de Derechos Humanos. Amenazas y Restricciones a los Derechos Humanos y la Democracia en Venezuela Informe Comprehensivo de Seguimiento. [Civilis. Investigation and Action by Human Rights Civil Society. Threats and Restrictions to Human Rights and Democracy in Venezuela. Comprehensive Follow-up Report], January-September 2010, p. 46.
Communication from the State, dated February 18, 2011.
Communication from the State, dated February 18, 2011.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter II, paragraphs 56 and 57.
Information received at the hearing on Democratic Institutions and Human Rights Defenders in Venezuela, 140th Session, October 29, 2010. Cited in Civilis. Investigación y Acción de la Sociedad Civil de Derechos Humanos. Amenazas y Restricciones a los Derechos Humanos y la Democracia en Venezuela Informe Comprehensivo de Seguimiento. [Civilis. Investigation and Action by Human Rights Civil Society. Threats and Restrictions to Human Rights and Democracy in Venezuela. Comprehensive Follow-up Report], January-September 2010, p. 47.
Information received at the hearing on Democratic Institutions and Human Rights Defenders in Venezuela, 140th Session, October 29, 2010. Supreme Court. Ruling No. 796 of July 22, 2010. Available [in Spanish] at: HYPERLINK "http://www.tsj.gov.ve/decisiones/scon/Julio/796-22710-2010-09-0555.html" http://www.tsj.gov.ve/decisiones/scon/Julio/796-22710-2010-09-0555.html. Cited in Civilis. Investigación y Acción de la Sociedad Civil de Derechos Humanos. Amenazas y Restricciones a los Derechos Humanos y la Democracia en Venezuela Informe Comprehensivo de Seguimiento. [Civilis. Investigation and Action by Human Rights Civil Society. Threats and Restrictions to Human Rights and Democracy in Venezuela. Comprehensive Follow-up Report], January-September 2010, p. 47.
Information received at the hearing on Democratic Institutions and Human Rights Defenders in Venezuela, 140th Session, October 29, 2010. Supreme Court. Ruling No. 796 of July 22, 2010. Available [in Spanish] at: HYPERLINK "http://www.tsj.gov.ve/decisiones/scon/Julio/796-22710-2010-09-0555.html" http://www.tsj.gov.ve/decisiones/scon/Julio/796-22710-2010-09-0555.html. Cited in Civilis. Investigación y Acción de la Sociedad Civil de Derechos Humanos. Amenazas y Restricciones a los Derechos Humanos y la Democracia en Venezuela Informe Comprehensivo de Seguimiento. [Civilis. Investigation and Action by Human Rights Civil Society. Threats and Restrictions to Human Rights and Democracy in Venezuela. Comprehensive Follow-up Report], January-September 2010, p. 47.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter 6, para. 668.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter 6, para.672; Press release 16/07. IACHR calls upon States to reflect on the importance of public security. March 15, 2007. IACHR. 2008 Annual Report. Chapter I: Introduction.
IACHR, 140th Session, Hearing on citizen security, prisons, diversity and sexual equality in Venezuela.
Diario El Nacional, 20.08.2010. 19,133 personas fueron asesinadas en Venezuela en 2009. Cifra extraída de estudio realizado por el Instituto Nacional de Estadísticas (INE), "Encuesta Nacional de Victimización y Percepción de Seguridad Ciudadana 2009" [19,133 persons murdered in Venezuela in 2009. Figure taken from the study done by the National Institute of Statitstics (INE), “National Survey of Victims and Perception of Citizen Security 2009”]. Available [in Spanish] at: http://www.el-nacional.com/www/site/p_contenido.php?q=nodo/150260/Sucesos/19.133-personas-fueron-asesinadas-en-Venezuela-en-2009
Diario Últimas Noticias, 07.07.2010. Hubo 2.513 homicidios en el primer semestre [2,513 murders in the first half year].
Reports of the Venezuelan Observatory on Violence done by LACSO and other academic institutions: Incosec Reports on Security in Venezuela. Available (in Spanish) at: http://incosec.sumospace.com/
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter V, para. 638.
IACHR, Press Release No. HYPERLINK "http://www.cidh.oas.org/Comunicados/Spanish/2010/102-10sp.htm" 102/10 – IACHR deplores extrajudicial executions against a family in Venezuela. Washington, D.C., October 8, 2010.
; HYPERLINK "http://www.unicef.org/venezuela/spanish/overview_4200.htm" http://www.unicef.org/venezuela/spanish/overview_4200.htm ; Diario El Nacional, 28.02.10. Venezolanos pagan con la vida las omisiones del Estado [Venezuelans pay for the State’s omissions with their lives].
Cecodap/Agencia Pana. Informe Impacto de la Cobertura de las Diferentes Formas de Violencia contra Niños, Niñas y Adolescentes [Impact of the Coverage of the Various Forms of Violence Inflicted on Children and Adolescents]. Available in Spanish at: http://www.cecodap.org.ve/papagayo/files/Informe%20Monitoreo%20Violencia%20Octubre%202008-Septiembre%202009%20VD.pdf; and at HYPERLINK "http://www.cecodap.org.ve/papagayo/files/Noticias%20Balance.pdf" http://www.cecodap.org.ve/papagayo/files/Noticias%20Balance.pdf; Investigación y Acción de la Sociedad Civil de Derechos Humanos (Civilis). Amenazas y Restricciones a los Derechos Humanos y la Democracia en Venezuela Informe Comprehensivo de Seguimiento. [Investigation and Action by Human Rights Civil Society (Civilis). Threats and Restrictions to Human Rights and Democracy in Venezuela. Comprehensive Follow-up Report], January-September 2010, p. 72
Miranda State Government. Bureau of Social Development. Let’s Hear from Miranda’s Children and Adolescents. Summary of the findings of a survey conducted among students in grades 3 to 9 of the Miranda state schools. May-June 2009; Investigación y Acción de la Sociedad Civil de Derechos Humanos (Civilis). Amenazas y Restricciones a los Derechos Humanos y la Democracia en Venezuela Informe Comprehensivo de Seguimiento. [Investigation and Action by Human Rights Civil Society (Civilis). Threats and Restrictions to Human Rights and Democracy in Venezuela. Comprehensive Follow-up Report], January-September 2010, p. 72.
Communication from the State dated February 18, 2011.
See, IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter 6, para. 697.
See, IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter 6, paragraphs 694-700.
IACHR, 140th Session, Hearing on Citizen Security, Prisons, Diversity and Sexual Equality in Venezuela.
Diario El Universal, 27.01.2010. Empresas estatales ya cuentan con cerca de 150.000 milicianos [State-run businesses already have close to 150,000 militia members]. Available [in Spanish] at http://economia.eluniversal.com/2010/01/27/eco_art_empresas-estatales-y_1739358.shtml
Prensa Minmujer, 22.04.2010. Milicia Nacional: Derrotaremos la cultura machista heredada del capitalism [National Militia: Let’s Abolish the Machista Culture: Capitalism’s Legacy]. Available [in Spanish] at: http://www.minmujer.gob.ve/index.php?option=com_content&view=article&id=85:miliciaderrotarmachismo&catid=52&Itemid=69
Prensa Minmujer, 24.03.2010. Ministerio de la Mujer conformó cuerpo de combatiente de la Milicia Bolivariana [Ministry of Women’s Issues formed Bolivarian Militia corps of combatants]. Available [in Spanish] at: http://www.ojopelao.com/nacionales/13142-ministerio-de-la-mujer-conformo-cuerpo-combatiente-de-la-milicia-bolivariana-10-fotos.html and at http://www.notivargas.org/nacionales/9176-ministerio-de-la-mujer-conformo-cuerpo-combatiente-de-la-milicia-bolivariana-10-fotos.html
VTV, 26.07.2010. Ministra León anunció juramentación de 1200 mujeres combatientes para el mes de agosto [Minister León announced that 1200 women combatants took the oath in August]. Available [in Spanish] at: http://www.vtv.gob.ve/noticias-nacionales/21345 and at http://www.laprensadebarinas.com.ve/nueva/xxview.php?ArtID=83954
IACHR, 140th Session, Hearing on Citizen Security, Prisons, Diversity and Sexual Equality in Venezuela.
Resolution from the Office of the President of the Republic No. 7,362. Official Gazette No. 39,401.YVKE Mundial. Available [in Spanish] at: http://www.radiomundial.com.ve/yvke/noticia.php?455540
VTV, 12.04.2010. Diosdado Cabello: Los venezolanos tendrán una Asamblea más rojita y radical [Diosdado Cabello: Venezuelans will have a slightly redder and more radical Assembly]. Available [in Spanish] at: http://www.vtv.gov.ve/noticias-nacionales/33574
Communication from the State, dated February 18, 2011.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter 6, para. 826.
I/A Court H.R., Matter of Centro Penitenciario de Aragua "Cárcel de Tocorón" regarding Venezuela. Order of the President of the Inter-American Court of Human Rights of November 1, 2010.
Communication from the State, dated February 18, 2011.
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter 6, para. 905.
IACHR, 140th Session, Hearing on Citizen Security, Prisons, Diversity and Sexual Equality in Venezuela.
HYPERLINK "http://www.iglhrc.org/cgi-bin/iowa/language/4/index.html" http://www.iglhrc.org/cgi-bin/iowa/language/4/index.html
Acording to article 279 of the Venezuelan Constitution, the Venezuelan Ombudsman as part of the organs exercising Citizen Power is charged, in accordance with this Constitution and with the law, with preventing, investigating and punishing actions that undermine public ethics and administrative morals; to see to sound management and legality in the use of public property, and fulfillment and application of the principle
of legality in all of the State’s administrative activities, as well as to promote education as a process that helps create citizenship, together with solidarity, freedom, democracy, social responsibility and work.
HYPERLINK "http://venezueladiversaac.blogspot.com/2010/10/brigada-motorizada-de-la-policia.html" http://venezueladiversaac.blogspot.com/2010/10/brigada-motorizada-de-la-policia.html
Communication from the State, dated February 18, 2011.
In this section, the Office of the Special Rapporteur for Freedom of Expression recounts some of the events documented in the Special Report on Freedom of Expression in Venezuela in 2009 and adds what happened in 2010.
Public Prosecutor’s Office. May 19, 2010. Former Carabobo police office sentenced to 25 years for murder of Orel Sambrano and Francisco Larrazábal. Available at: HYPERLINK "http://www.ministeriopublico.gob.ve/web/guest;jsessionid=99E6CE71A48F599F434E36B1B56CBA05" http://www.ministeriopublico.gob.ve/web/guest;jsessionid=99E6CE71A48F599F434E36B1B56CBA05; Reporters Without Borders. May 21, 2010. First suspect convicted in journalist Orel Sambrano’s murder. Available at: HYPERLINK "http://en.rsf.org/venezuela-breakthrough-arrests-of-suspected-02-03-2010,36575.html" http://en.rsf.org/venezuela-breakthrough-arrests-of-suspected-02-03-2010,36575.html; Agencia EFE. November 21, 2010. Chávez says he believes Santos’ word on Wakled’s extradition. Available at: HYPERLINK "http://www.sandiegored.com/noticias/543/Chavez-dice-que-cree-en-la-palabra-de-Santos-sobre-extradicion-de-Makled/" http://www.sandiegored.com/noticias/543/Chavez-dice-que-cree-en-la-palabra-de-Santos-sobre-extradicion-de-Makled/.
Zulia State Legislative Council. August 12, 2010. Transparency Law unanimously approved. Available at: HYPERLINK "http://www.clezulia.gov.ve/index.php?option=com_content&view=article&id=4474%3Aley-de-transferencia-fue-aprobada-por-unanimidad&catid=1&Itemid=1" http://www.clezulia.gov.ve/index.php?option=com_content&view=article&id=4474%3Aley-de-transferencia-fue-aprobada-por-unanimidad&catid=1&Itemid=1
Associated Press and France Presse. June 9, 2010. Five Molotov cocktails hurled at various Venezuelan newspapers. Available at: HYPERLINK "http://www.clarin.com/mundo/america_latina/Lanzan-bombas-molotov-diarios-Venezuela_0_277172330.html" http://www.clarin.com/mundo/america_latina/Lanzan-bombas-molotov-diarios-Venezuela_0_277172330.html
Public Prosecutor’s Office. June 9, 2010. PPO stepped up investigation into explosives thrown at Cadena Capriles. Available at: HYPERLINK "http://www.ministeriopublico.gob.ve/web/guest/buscador/-/journal_content/56/10136/49993" http://www.ministeriopublico.gob.ve/web/guest/buscador/-/journal_content/56/10136/49993
IACHR. 2009 Annual Report. Volume II: Annual Report of the Special Rapporteur for Freedom of Expression, Chapter II (Evaluation of the state of freedom of expression in the hemisphere), para. 705.
Public Prosecutor’s Office. August 4, 2010. PPO investigates detonation of 2 explosive devices intended for Las Noticias de Cojedes. Available at: HYPERLINK "http://www.ministeriopublico.gob.ve/web/guest/buscador/-/journal_content/56/10136/52738" http://www.ministeriopublico.gob.ve/web/guest/buscador/-/journal_content/56/10136/52738
El Universal. September 26, 2010. Voting in Anzoátegui marked by aggression and taunting. Available at: HYPERLINK "http://www.eluniversal.com/2010/09/26/v2010_ava_proceso-en-anzoategu_26A4523533.shtml" http://www.eluniversal.com/2010/09/26/v2010_ava_proceso-en-anzoategu_26A4523533.shtml; El Nacional. September 26, 2010. Former mayor of El Tigre and journalists attacked by PSUV sympathizers. Available at:: HYPERLINK "http://el-nacional.com/www/site/p_contenido.php?q=nodo/157171/Sufragio%202010/Ex-alcalde-de-El-Tigre-y-periodistas-fueron-agredidos-por-simpatizantes-de-PSUV" http://el-nacional.com/www/site/p_contenido.php?q=nodo/157171/Sufragio%202010/Ex-alcalde-de-El-Tigre-y-periodistas-fueron-agredidos-por-simpatizantes-de-PSUV
Instituto de Prensa y Sociedad. June 9, 2010. Press team the target of violence. Available at: HYPERLINK "http://www.ifex.org/venezuela/2010/06/09/aragua_protest/es/" http://www.ifex.org/venezuela/2010/06/09/aragua_protest/es/
Colegio Nacional de Periodistas. September 25, 2010. President of National Press Association asks Vice President Jaua for respect. Available at: HYPERLINK "http://www.cnpven.org/data.php?link=2&expediente=626" http://www.cnpven.org/data.php?link=2&expediente=626
Colegio Nacional de Periodistas. October 1, 2010. National Press Association communiqué responds to attack on Beatriz Adrián. Available at: HYPERLINK "http://www.espaciopublico.org/index.php/noticias/1-libertad-de-expresi/885-comunicado-del-cnp-ante-agresion-a-beatriz-adrian" http://www.espaciopublico.org/index.php/noticias/1-libertad-de-expresi/885-comunicado-del-cnp-ante-agresion-a-beatriz-adrian
Espacio Público. October 18, 2010. Journalists assaulted in Carabobo state. Available at: HYPERLINK "http://www.espaciopublico.org/index.php/noticias/1-libertad-de-expresi/898-agreden-a-periodistas-en-el-estado-carabobo" http://www.espaciopublico.org/index.php/noticias/1-libertad-de-expresi/898-agreden-a-periodistas-en-el-estado-carabobo
Colegio Nacional de Periodistas. National Press Association deplores assault on journalists in Lara. Available at: HYPERLINK "http://www.cnpven.org/data.php?link=2&expediente=648" http://www.cnpven.org/data.php?link=2&expediente=648
Cf. Hearing on the right to freedom of expression and information in Venezuela, held on October 29, 2010, during the Commission’s 140th Session; Espacio Público. June 11, 2010. Espacio Público rejects conviction of journalist Francisco Pérez. Available at: HYPERLINK "http://www.espaciopublico.org/index.php/inicio-mainmenu-1/1-libertad-de-expresi/805-espacio-publico-rechaza-condena-contra-periodista-francisco-perez" http://www.espaciopublico.org/index.php/inicio-mainmenu-1/1-libertad-de-expresi/805-espacio-publico-rechaza-condena-contra-periodista-francisco-perez
El Universal. Conviction of “Pancho” Pérez overturned. December 1, 2010. Available at: HYPERLINK "http://www.eluniversal.com/2010/12/01/pol_art_anulan-fallo-contra_2123719.shtml" http://www.eluniversal.com/2010/12/01/pol_art_anulan-fallo-contra_2123719.shtml. Agencia Carabobeña de Noticias. “Pancho Pérez” conviction overturned. November 30, 2010. Available at: HYPERLINK "http://www.acn.com.ve/regional/item/18950-este-30-de-noviembre-le-dictan-sentencia-a-pancho-p%C3%A9rez.html" http://www.acn.com.ve/regional/item/18950-este-30-de-noviembre-le-dictan-sentencia-a-pancho-p%C3%A9rez.html
El Universal. March 23, 2010. Oswaldo Álvarez Paz taken into custody and held in El Helicoide. Available at: HYPERLINK "http://www.eluniversal.com/2010/03/23/pol_art_detienen-y-recluyen_23A3629571.shtml" http://www.eluniversal.com/2010/03/23/pol_art_detienen-y-recluyen_23A3629571.shtml. LA Times. March 25, 2010. Venezuela ex – governor to remain in jail without bail over drug remarks. Available at: HYPERLINK "http://articles.latimes.com/2010/mar/25/world/la-fg-venezuela-governor25-2010mar25" http://articles.latimes.com/2010/mar/25/world/la-fg-venezuela-governor25-2010mar25
El Universal. May 7, 2010. Álvarez Paz near release on bail. Available at: HYPERLINK "http://politica.eluniversal.com/2010/05/07/pol_art_alvarez-paz-a-pocos_1891456.shtml" http://politica.eluniversal.com/2010/05/07/pol_art_alvarez-paz-a-pocos_1891456.shtml
IFEX. May 19, 2010. Former governor granted parole after two months in detention. Available at: http://www.ifex.org/venezuela/2010/05/19/alvarez_paz_parole/19 de mayo de 2010. El País. May 14, 2010. Political opponent who linked Chávez to ETA and FARC released. Available at: HYPERLINK "http://www.elpais.com/articulo/internacional/Liberado/opositor/vinculo/Chavez/ETA/FARC/elpepiint/20100514elpepiint_10/Tes" http://www.elpais.com/articulo/internacional/Liberado/opositor/vinculo/Chavez/ETA/FARC/elpepiint/20100514elpepiint_10/Tes
According to information received from Juan Carlos Álvarez, by e-mail dated November 13, 2010 (on record with the Office of the Special Rapporteur for Freedom of Expression). Aporrea. August 10, 2010. Antonio Rivero told media outlets that he knew beforehand that the Military Proscutor would investigate him. Available at: HYPERLINK "http://www.aporrea.org/oposicion/n163204.html" http://www.aporrea.org/oposicion/n163204.html. Aporrea. August 14, 2011. Court orders precautionary measures for Antonio Rivero. Available at: HYPERLINK "http://www.aporrea.org/actualidad/n163383.html" http://www.aporrea.org/actualidad/n163383.html. On this issue, it is worth noting that the State of Venezuela said that Rivero “hasn’t been detained or subjected to any kind of trial, as the Commission stated.” Observations by the State of Venezuela to the draft of the General Report on the Situation of Human Rights in Venezuela, 2010. Communication of February 22, 2011, observations on the section on Freedom of Thought and Expression. It is worth noting that, as stated in the relevant paragraph, the Commission never stated that Rivero has been “detained.”
Diario El Impulso. March 24, 2010. Manuel Villalba requested investigation of Guillermo Zuloaga. Available at: HYPERLINK "http://www.elimpulso.com/pages/vernoticia.aspx?id=99763" http://www.elimpulso.com/pages/vernoticia.aspx?id=99763
IACHR. Press Release 36/10 of March 25, 2010. IACHR concerned about the use of the punitive power of the State to silence opponents in Venezuela. Available at: HYPERLINK "http://www.cidh.oas.org/Comunicados/English/2010/36-10eng.htm" http://www.IACHR.oas.org/Comunicados/English/2010/36-10eng.htm
IACHR. Press Release 36/10 of March 25, 2010. IACHR concerned about the use of the punitive power of the State to silence opponents in Venezuela. Available at: HYPERLINK "http://www.cidh.oas.org/Comunicados/English/2010/36-10eng.htm" http://www.IACHR.oas.org/Comunicados/English/2010/36-10eng.htm
IACHR. Press Release 36/10 of March 25, 2010. IACHR concerned about the use of the punitive power of the State to silence opponents in Venezuela. Available at: HYPERLINK "http://www.cidh.oas.org/Comunicados/English/2010/36-10eng.htm" http://www.IACHR.oas.org/Comunicados/English/2010/36-10eng.htm
El Universal. August 9, 2010. Military Prosecutor’s Office charges Antonio Rivero. Available at: HYPERLINK "http://www.eluniversal.com/2010/08/09/pol_ava_fiscalia-militar-imp_09A4317051.shtml" http://www.eluniversal.com/2010/08/09/pol_ava_fiscalia-militar-imp_09A4317051.shtml; New York Times. 11 de agosto de 2010. Ex – General in Venezuela, a Chávez Foe, faces inquiry. Disponible en: HYPERLINK "http://www.nytimes.com/2010/08/12/world/americas/12venez.html" http://www.nytimes.com/2010/08/12/world/americas/12venez.html.
Public Prosecutor’s Office. March 27, 2010. Journalist Gustavo Azócar sentenced to prison for two years six months. Available at: HYPERLINK "http://www.ministeriopublico.gob.ve/web/guest/buscador/-/journal_content/56/10136/36783" http://www.ministeriopublico.gob.ve/web/guest/buscador/-/journal_content/56/10136/36783
Tal Cual Digital. January 29, 2010. A Venezuela without Esteban. Available at: HYPERLINK "http://www.talcualdigital.com/Avances/Viewer.aspx?id=31096&secid=44" http://www.talcualdigital.com/Avances/Viewer.aspx?id=31096&secid=44. See also Reporte 360. January 29, 2010. Minci will charge Laureano Márquez. Available at: HYPERLINK "http://www.reporte360.com/detalle.php?id=24154" http://www.reporte360.com/detalle.php?id=24154
Ministry of the People’s Power for Communications and Information. Communiqué dated January 29, 2010. Available at: HYPERLINK "http://www.minci.gob.ve/noticias/1/195620/comunicado_del_ministerio.html" http://www.minci.gob.ve/noticias/1/195620/comunicado_del_ministerio.html.
Observations by the State of Venezuela to the draft of the General Report on the Situation of Human Rights in Venezuela, 2010. Communication of February 22, 2011, observations on the section on Freedom of Thought and Expression.
On this issue, see infra par. *** 469.
Espacio Público. November 12, 2010. Fan will have to stand trial for anti-revolutionary message on T-shirt. Available at: HYPERLINK "http://www.espaciopublico.org/index.php/noticias/1-libertad-de-expresi/914-fanatico-debera-comparecer-ante-tribunales-por-mensaje-antirrevolucionario-en-franela" http://www.espaciopublico.org/index.php/noticias/1-libertad-de-expresi/914-fanatico-debera-comparecer-ante-tribunales-por-mensaje-antirrevolucionario-en-franela
Observations by the State of Venezuela to the draft of the General Report on the Situation of Human Rights by the IACHR, 2010. Communication of February 22, 2011, observations on the section on Freedom of Thought and Expression.
El Nacional. November 12, 2010. 33 people detained after protests at Caracas metro. Available at: HYPERLINK "http://el-nacional.com/www/site/p_contenido.php?q=nodo/165218/Ciudad/Protesta-en-estaci%C3%B3n-del-Metro-de-Propatria-dej%C3%B3-33-personas-detenidas" http://el-nacional.com/www/site/p_contenido.php?q=nodo/165218/Ciudad/Protesta-en-estaci%C3%B3n-del-Metro-de-Propatria-dej%C3%B3-33-personas-detenidas
Sociedad Parasitológica Venezolana. May 27, 2010. Communiqué from the Sociedad Parasitológica Venezolana. Available at: HYPERLINK "http://www.asovac.org/2010/05/31/comunicado-de-la-sociedad-parasitologica-venezolana/" http://www.asovac.org/2010/05/31/comunicado-de-la-sociedad-parasitologica-venezolana/. Espacio Público. June 11, 2010. Parliament of the state of Anzoáteguí begins investigation against doctor from that state. Available at: HYPERLINK "http://www.espaciopublico.org/index.php/noticias/1-libertad-de-expresi/803-parlamento-del-estado-anzoategui-inicio-investigacion-en-contra-de-medico-de-esa-entidad" http://www.espaciopublico.org/index.php/noticias/1-libertad-de-expresi/803-parlamento-del-estado-anzoategui-inicio-investigacion-en-contra-de-medico-de-esa-entidad
Federación de Periodistas de América Latina y el Caribe. April 8, 2010. FEPALC joins the SNTP in condemning the detention of a Venezuelan journalist. Available at: HYPERLINK "http://www.fepalc.org/noticias_det.php?Itemid=516" http://www.fepalc.org/noticias_det.php?Itemid=516
El Tiempo. July 16, 2010. Colombian journalists detained in Venezuela held incommunicado. Available at: HYPERLINK "http://www.eltiempo.com/archivo/documento/CMS-7810897" http://www.eltiempo.com/archivo/documento/CMS-7810897
Comittee to Protect Journalists. August 20, 2010. Venezuelan censorship over morgue photos is selective. Available at: HYPERLINK "http://cpj.org/blog/2010/08/venezuelan-censorship-over-morgue-photos-is-select.php" http://cpj.org/blog/2010/08/venezuelan-censorship-over-morgue-photos-is-select.php. El Universal. August 16, 2010. Newspaper Tal Cual denounced for Publishing Photo of Morgue. Available at: HYPERLINK "http://www.eluniversal.com/2010/08/16/pol_ava_denuncian-a-diario-t_16A4345011.shtml" http://www.eluniversal.com/2010/08/16/pol_ava_denuncian-a-diario-t_16A4345011.shtml
Office of the Ombudsperson of the Bolivarian Republic of Venezuela. August 16, 2010. Ombudsperson’s Office asks print media to refrain from publishing images that adversely affect children and adolescents. Available at: HYPERLINK "http://www.defensoria.gob.ve/index.php?option=com_content&view=article&id=589:defensoria-solicita-a-tribunales-medida-preventiva-para-que-medios-impresos-se-abstengan-de-publicar-imagenes-que-atenten-contra-la-infancia-y-la-adolescencia-&catid=7:principal&Itemid=79" http://www.defensoria.gob.ve/index.php?option=com_content&view=article&id=589:defensoria-solicita-a-tribunales-medida-preventiva-para-que-medios-impresos-se-abstengan-de-publicar-imagenes-que-atenten-contra-la-infancia-y-la-adolescencia-&catid=7:principal&Itemid=79
Cf. Decision of the Judge of the Twelfth Court of First Instance for Mediation and Protection of Children and Adolescents. Communication 107/10 addressed to Miguel Enrique Otero, Editor of the newspaper “El Nacional,” dated August 16, 2010. Available at: HYPERLINK "http://www.el-nacional.com/www/files/ADMISION_DICTADA_MEDIDA_PREVENTIVA_INNOMINADA_17_8_2010.pdf" http://www.el-nacional.com/www/files/ADMISION_DICTADA_MEDIDA_PREVENTIVA_INNOMINADA_17_8_2010.pdf
Cf. Decision of the Judge of the Twelfth Court of First Instance for Mediation and Protection of Children and Adolescents. Communication 107/10 addressed to Miguel Enrique Otero, Editor of the newspaper “El Nacional,” dated August 16, 2010. Available at: HYPERLINK "http://www.el-nacional.com/www/files/ADMISION_DICTADA_MEDIDA_PREVENTIVA_INNOMINADA_17_8_2010.pdf" http://www.el-nacional.com/www/files/ADMISION_DICTADA_MEDIDA_PREVENTIVA_INNOMINADA_17_8_2010.pdf
Cf. Decision of the Judge of the Twelfth Court of First Instance for Mediation and Protection of Children and Adolescents. Communication 107/10 addressed to Miguel Enrique Otero, Editor of the newspaper “El Nacional,” dated August 16, 2010. Available at: HYPERLINK "http://www.el-nacional.com/www/files/ADMISION_DICTADA_MEDIDA_PREVENTIVA_INNOMINADA_17_8_2010.pdf" http://www.el-nacional.com/www/files/ADMISION_DICTADA_MEDIDA_PREVENTIVA_INNOMINADA_17_8_2010.pdf
Cf. Decision of the Judge of the Twelfth Court of First Instance for Mediation and Protection of Children and Adolescents. Communication 111/10 addressed to Editor/President of the Newspaper “Tal Cual,” dated August 17, 2010. Available at: HYPERLINK "http://static.eluniversal.com/2010/08/17/medida_de_proteccion.jpg" http://static.eluniversal.com/2010/08/17/medida_de_proteccion.jpg
Cf. Decision of the Judge of the Twelfth Court of First Instance for Mediation and Protection of Children and Adolescents. Communication 111/10 addressed to Editor/President of the Newspaper “Tal Cual,” dated August 17, 2010. Available at: HYPERLINK "http://static.eluniversal.com/2010/08/17/medida_de_proteccion.jpg" http://static.eluniversal.com/2010/08/17/medida_de_proteccion.jpg
Agencia Venezolana de Noticias. August 19, 2010. Ban on publishing violent images in print media lifted. Available at: HYPERLINK "http://www.avn.info.ve/node/12388" http://www.avn.info.ve/node/12388
At the time, the IACHR’s Office of the Special Rapporteur for Freedom of Expression and the UN Special Rapporteur for Freedom of Expression, in an August 19, 2010 joint press release, expressed their concern regarding these events. Press Release R82/10. Rapporteurs for Freedom of Expression concerned over Prior Censorship in Venezuela. Available at: HYPERLINK "http://www.cidh.oas.org/relatoria/showarticle.asp?artID=811&lID=1" http://www.cidh.oas.org/relatoria/showarticle.asp?artID=811&lID=1
CONATEL. Administrative Order 01/09 of December 22, 2009. Technical Standard on Domestic Audiovisual Production Services. Available at: HYPERLINK "http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf" http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf
CONATEL. Administrative Order 01/09 of December 22, 2009. Technical Standard on Domestic Audiovisual Production Services. Article 3. Available at: HYPERLINK "http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf" http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf
In this connection, Article 4 of the Technical Standard provides that “Domestic Audiovisual Production Services shall comply with the provisions of the Law on Social Responsibility in Radio and Television.” Available [in Spanish] at: HYPERLINK "http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf" http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf
CONATEL. Administrative Order 01/09 of December 22, 2009. Technical Standard on Domestic Audiovisual Production Services. Article 6. Available at: HYPERLINK "http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf" http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf
See, in this regard, CONATEL. December 2009. Guide to doing notifications for Domestic Audiovisual Production Services. Available at: HYPERLINK "http://docs.google.com/viewer?a=v&q=cache:wSCBZFiZ01kJ:www.conatel.gob.ve/download/Servicio_Produccion_Nacional_Audiovisual/Guia_Notificacion_PNA_%2812-2009%29.pdf+para+los+servicios+de+Producci%C3%B3n+Nacional+Audiovisual+%22Gu%C3%ADa+para+realizar+notificaciones+%22+site:www.conatel.gob.ve&hl=en&gl=us&pid=bl&srcid=ADGEESiilcds2V6qHGI5mtWFieEj6Fynro3K9xhit4kMnrhSXr2mzBYchVagBvIF1wQ7Ftf6JgiBEUbkxJl7iDLYFjoXrLbS4r4XEU7XXOv6HoQ3-JiKtEjav0_HDZPj0R08j6pRfRm-&sig=AHIEtbTUEin-D4wSYmTqSx92OAXpf2ZliQ&pli=1" http://docs.google.com/viewer?a=v&q=cache:wSCBZFiZ01kJ:www.conatel.gob.ve/download/Servicio_Produccion_Nacional_Audiovisual/Guia_Notificacion_PNA_%2812-2009%29.pdf+para+los+servicios+de+Producci%C3%B3n+Nacional+Audiovisual+%22Gu%C3%ADa+para+realizar+notificaciones+%22+site:www.conatel.gob.ve&hl=en&gl=us&pid=bl&srcid=ADGEESiilcds2V6qHGI5mtWFieEj6Fynro3K9xhit4kMnrhSXr2mzBYchVagBvIF1wQ7Ftf6JgiBEUbkxJl7iDLYFjoXrLbS4r4XEU7XXOv6HoQ3-JiKtEjav0_HDZPj0R08j6pRfRm-&sig=AHIEtbTUEin-D4wSYmTqSx92OAXpf2ZliQ&pli=1
CONATEL. Administrative Order 01/09 of December 22, 2009. Technical Standard on Domestic Audiovisual Production Services. Transitory Provision One. Available at: HYPERLINK "http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf" http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf
CONATEL. Administrative Order 01/09 of December 22, 2009. Technical Standard on Domestic Audiovisual Production Services. Transitory Provision One. Available at: HYPERLINK "http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf" http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf
I/A Court H.R., Case of Ríos et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 194, para. 115.
See IACHR. 2007 Annual Report. Volume II: Annual Report of the Office of the Special Rapporteur for Freedom of Expression, Chapter II (Situation of Freedom of Expression in the Region).
IACHR. 2009 Annual Report of the Inter-American Commission on Human Rights. Report of the Special Rapporteur for Freedom of Expression. Chapter 2, Para. 572. OEA/Ser.L/V/II. Doc. 51, December 30, 2009. Available at: HYPERLINK "http://www.cidh.oas.org/pdf%20files/Annual%20Report%202009.pdf" http://www.IACHR.oas.org/pdf%20files/Annual%20Report%202009.pdf
CONATEL. Administrative Order 1,569 dated March 4, 2010. On file with Office of the Special Rapporteur. See also Apporea. March 5, 2010. Conatel rejects RCTV’s inscription as extemporaneous. Available at: HYPERLINK "http://www.aporrea.org/medios/n152383.html" http://www.aporrea.org/medios/n152383.html
El Universal. January 21, 2010. RCTV radically changes its programming. Available at: HYPERLINK "http://www.eluniversal.com/2010/01/21/til_art_rctv-cambia-radicalm_1731007.shtml" http://www.eluniversal.com/2010/01/21/til_art_rctv-cambia-radicalm_1731007.shtml
Communiqué from RCTV Internacional, dated January 21, 2010. Available at: HYPERLINK "http://www.rctv.net/Noticias/VerNoticia.aspx?Noticiaid=8207&CategoriaId=31" http://www.rctv.net/Noticias/VerNoticia.aspx?Noticiaid=8207&CategoriaId=31
CONATEL. Administrative Order 1,569 of March 4, 2010. On file with Office of the Special Rapporteur. See also Apporea. March 5, 2010. Conatel rejects RCTV’s inscription as extemporaneous. Available at: HYPERLINK "http://www.aporrea.org/medios/n152383.html" http://www.aporrea.org/medios/n152383.html
CONATEL. Administrative Order 01/09 of December 22, 2009. Technical Standard on Domestic Audiovisual Production Services. Transitory Provision One. Available at: HYPERLINK "http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf" http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf
Venezolana de Televisión. Minister Cabello’s press conference. Available at: HYPERLINK "http://www.youtube.com/watch?v=UPQ0nu2WC_I&feature=related" http://www.youtube.com/watch?v=UPQ0nu2WC_I&feature=related
In addition to RCTV, the following channels were also taken off the air: América TV, TV Chile, American Network, Ritmo Son and Momentum. See IFEX. January 26, 2010. Cable companies take six television stations off the air following communications regulator's orders. Available at: HYPERLINK "http://www.ifex.org/venezuela/2010/01/26/cable_stations_off_air/" http://www.ifex.org/venezuela/2010/01/26/cable_stations_off_air/. Committee to Protect Journalists. February 25, 2010. Venezuela bars RCTV, 5 other stations from cable, satellite. Available at: HYPERLINK "http://cpj.org/2010/01/venezuela-bars-rctv-5-other-stations-from-cable-sa.php" http://cpj.org/2010/01/venezuela-bars-rctv-5-other-stations-from-cable-sa.php
Office of the Special Rapporteur for Freedom of Expression of the IACHR. Press release No. R08/10 of January 24, 2010. Available at: HYPERLINK "http://www.cidh.org/relatoria/showarticle.asp?artID=781&lID=1" http://www.IACHR.org/relatoria/showarticle.asp?artID=781&lID=1
European Court of Human Rights, Case of Tolstoy Miloslavsky v. United Kingdom, Judgment of July 13, 1995, para. 37, where it wrote that: “The expression ‘prescribed by law’ [in Article 10 of the European Convention on Human Rights] requires firstly that the impugned measures should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it be accessible to the persons concerned and formulated with sufficient precision to enable them […] to foresee, to a degree that is reasonable in the circumstances, which a given action may entail.”
In this regard it is worth recalling that the Inter-American Court held that “Although Article 8 of the American Convention is entitled ‘Judicial Guarantees’ [in the Spanish version – ‘Right to a Fair Trial’ in the English version], its application is not strictly limited to judicial remedies, ‘but rather the procedural requirements that should be observed in order to be able to speak of effective and appropriate judicial guarantees, so that a person may defend himself adequately in the face of any kind of act of the State that affects his rights.’” And that “although this article does not establish minimum guarantees in matters relating to the determination of rights and obligations of a civil, labor, fiscal or any other nature, the full range of minimum guarantees stipulated in the second paragraph of this article are also applicable in those areas and, therefore, in this type of matter, the individual also has the overall right to the due process applicable in criminal matters.” IACHR. 2009 Annual Report. Volume II: Annual Report of the Special Rapporteur for Freedom of Expression, Chapter VI (Freedom of Expression and Broadcasting), para. 144; I/A Court H.R., Case of the Constitutional Court v. Peru. Judgment of January 31, 2001. Series C No. 71, paragraphs 69-70.
Reporters without Borders. February 23, 2010. RCTV yields in order to resume broadcasting, but problem of “cadenas” remains. Available at: HYPERLINK "http://en.rsf.org/venezuela-rctvi-yields-in-order-to-resume-23-02-2010,36202.html" http://en.rsf.org/venezuela-rctvi-yields-in-order-to-resume-23-02-2010,36202.html
See CONATEL. Administrative order No. PASDR-1.569. March 4, 2010.
Organic Law on Telecommunications. Article 32. Available at: HYPERLINK "http://www.tsj.gov.ve/legislacion/lt_ley.htm" http://www.tsj.gov.ve/legislacion/lt_ley.htm
See CONATEL. Administrative order No. PASDR-1.569. March 4, 2010.
See Supreme Court, Political Administrative Chamber, Examining Court. August 11, 2010. Available at: HYPERLINK "http://www.tsj.gov.ve/decisiones/jspa/Agosto/467-11810-2010-10-657.html" http://www.tsj.gov.ve/decisiones/jspa/Agosto/467-11810-2010-10-657.html
Article 171.6 of the Organic Law on Telecommunications provides as follows: “Article 171. Without prejudice to the fines that are to be applied in accordance with the provisions in this Law, the penalty shall be cancellation of the government license or concession, as the case may be, in the case of: […] (6) Someone who utilizes or allows the use of telecommunications services for which one is licensed, as a means to aid and abet the commission of crimes.” Article 172 of the Organic Law on Telecommunications states: “Article 172. Natural or legal persons whose government license or concession is revoked will be unable to obtain another, either directly or indirectly, for a period of five years. This period will be start as of the date the administrative decision becomes final. In the case of legal persons, the de-licensing will extend to administrators or other organs responsible for the management and direction of the sanctioned operator which were performing these functions at the time the offense was committed, provided they had knowledge of the situation that led to the de-licensing and did nothing to notify the National Telecommunications Commission in writing before the opening of the punitive proceedings. The violation of the de-licensing and disqualifications established in this Law will cause natural persons responsible for such an offense to be liable for a special disqualification prohibiting them from owning capital shares in or being administrators or managers of telecommunications companies, either directly or indirectly, for a period of five years.” Available at: HYPERLINK "http://www.tsj.gov.ve/legislacion/lt_ley.htm" http://www.tsj.gov.ve/legislacion/lt_ley.htm
Guillermo Zuloaga’s statements, available at: HYPERLINK "http://www.youtube.com/watch?v=1KpM4g1uwa4" http://www.youtube.com/watch?v=1KpM4g1uwa4
National Assembly. National Assembly asks Public Prosecutor’s Office to investigate Guillermo Zuloaga. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_content&task=view&id=24416&Itemid=27" http://www.asambleanacional.gob.ve/index.php?option=com_content&task=view&id=24416&Itemid=27
Reporte 360. March 24, 2010. Manuel Villalba asked Public Prosecutor’s Office to investigate Zuloaga. Available at: HYPERLINK "http://www.reporte360.com/detalle.php?id=29756&c=1" http://www.reporte360.com/detalle.php?id=29756&c=1
IPYS. March 25, 2010. Globovisión Owner Taken into Custody. Available at: HYPERLINK "http://www.ipys.org/alertas/atentado.php?id=2231" http://www.ipys.org/alertas/atentado.php?id=2231. Noticias 24. March 25, 2010. Prosecutor General explains reasons for Zuloaga’s arrest. Available at: HYPERLINK "http://www.noticias24.com/actualidad/noticia/149235/video-fiscal-general-cuenta-razones-de-la-detencion-de-zuloaga/" http://www.noticias24.com/actualidad/noticia/149235/video-fiscal-general-cuenta-razones-de-la-detencion-de-zuloaga/
El Universal. March 25, 2010. Zuloaga to be charged with crime of contempt and offending the President. Available at: HYPERLINK "http://www.eluniversal.com/2010/03/25/pol_ava_imputaran-a-zuloaga_25A3646055.shtml" http://www.eluniversal.com/2010/03/25/pol_ava_imputaran-a-zuloaga_25A3646055.shtml
El Universal. March 26, 2010. Zuloaga will not be jailed during his trial for “contempt of and offending the President”. Available at: HYPERLINK "http://politica.eluniversal.com/2010/03/26/pol_art_enjuiciaran-en-liber_1810121.shtml" http://politica.eluniversal.com/2010/03/26/pol_art_enjuiciaran-en-liber_1810121.shtml
El Universal. June 12, 2010. Arrest warrant issued for Zuloaga and his son. Available at: HYPERLINK "http://www.eluniversal.com/2010/06/12/pol_art_dictan-orden-de-apre_1936129.shtml." http://www.eluniversal.com/2010/06/12/pol_art_dictan-orden-de-apre_1936129.shtml. Tal Cual. June 12, 2010. Chávez gives the orders and the judge acts. Available at: HYPERLINK "http://www.talcualdigital.com/Avances/Viewer.aspx?id=36344&secid=28" http://www.talcualdigital.com/Avances/Viewer.aspx?id=36344&secid=28. Notitarde. June 11, 2010. 13th Examining Court ordered arrest of Guillermo Zuloaga. Available at: HYPERLINK "http://www.notitarde.com/notitarde/plantillas/nota.aspx?idart=1051140&idcat=9841&tipo=2" http://www.notitarde.com/notitarde/plantillas/nota.aspx?idart=1051140&idcat=9841&tipo=2
El Universal. June 11, 2010. Zuloaga ordered arrested for usury and hoarding. Available at: HYPERLINK "http://www.eluniversal.com/2010/06/11/pol_ava_ordenan-arrestar-a-z_11A4006611.shtml" http://www.eluniversal.com/2010/06/11/pol_ava_ordenan-arrestar-a-z_11A4006611.shtml. El Nacional. June 29, 2010. Public Prosecutor’s Office accuses Zuloaga of usury and hoarding. Available at: HYPERLINK "http://el-nacional.com/www/site/p_contenido.php?q=nodo/143323/Nacional/Ministerio-P%C3%BAblico-acusa-a-los-Zuloaga-de-usura-y-agavillamiento" http://el-nacional.com/www/site/p_contenido.php?q=nodo/143323/Nacional/Ministerio-P%C3%BAblico-acusa-a-los-Zuloaga-de-usura-y-agavillamiento
Telesur. June 11, 2010. Venezuelan Public Prosecutor’s Office orders businessman’s arrest for the crime of usury. Available at: HYPERLINK "http://www.telesurtv.net/secciones/noticias/73447-NN/ministerio-publico-venezolano-ordena-captura-de-empresario-por-delito-de-usura/" http://www.telesurtv.net/secciones/noticias/73447-NN/ministerio-publico-venezolano-ordena-captura-de-empresario-por-delito-de-usura/
Office of the Special Rapporteur for Freedom of Expression of the IACHR. Letter sent to the Bolivarian Republic of Venezuela on June 14, 2010, in connection with the Situation of Freedom of Expression in the Bolivarian Republic of Venezuela (on file with the Office of the Special Rapporteur). See in this regard, IACHR Commissioner for Venezuelan Matters and the Special Rapporteur for Freedom of Expression Send Communication to the Venezuelan State Expressing Deep Concern over the Serious Situation of Freedom of Expression. Press Release No. R61/10, July 14, 2010. Available at: HYPERLINK "http://www.IACHR.org/Relatoria/showarticle.asp?artID=800&lID=1" http://www.IACHR.org/Relatoria/showarticle.asp?artID=800&lID=1
Office of the Special Rapporteur for Freedom of Expression of the IACHR. Letter sent to the Bolivarian Republic of Venezuela on June 14, 2010, in connection with the Situation of Freedom of Expression in the Bolivarian Republic of Venezuela (on file with the Office of the Special Rapporteur).
El Universal. June 29, 2010. Public Prosecutor’s Office seeks extradition of Guillermo Zuloaga. Available at: HYPERLINK "http://www.eluniversal.com/2010/06/29/pol_ava_ministerio-publico-p_29A4106093.shtml" http://www.eluniversal.com/2010/06/29/pol_ava_ministerio-publico-p_29A4106093.shtml. Ministry of the People’s Power for Communications and Information. June 29, 2010. Public Prosecutor’s Office asks for Zuloaga’s extradition. Available at: HYPERLINK "http://minci.gob.ve/nacionales/1/200778/ministerio_publico_solicita.html" http://minci.gob.ve/nacionales/1/200778/ministerio_publico_solicita.html
El Universal. August 17, 2010. Supreme Court authorizes Zuloaga’s extradition. Available at: HYPERLINK "http://www.eluniversal.com/2010/08/17/pol_ava_tsj-autoriza-extradi_17A4349131.shtml" http://www.eluniversal.com/2010/08/17/pol_ava_tsj-autoriza-extradi_17A4349131.shtml. Agencia Venezolana de Noticias. August 17, 2010. Supreme Court allows request to extradite Guillermo Zuloaga. Available at: HYPERLINK "http://www.avn.info.ve/node/11919" http://www.avn.info.ve/node/11919
Public statements by the President of the Bolivarian Republic of Venezuela, Hugo Chávez Frías. Available at: HYPERLINK "http://www.youtube.com/watch?v=3NzzmVGtqIs" http://www.youtube.com/watch?v=3NzzmVGtqIs
El Universal. December 21, 2010. Prosecutor’s Office launches investigation into alleged bank-related “rumor mills”. Available at: HYPERLINK "http://www.eluniversal.com/2009/12/21/pol_ava_fiscalia-abre-invest_21A3220251.shtml" http://www.eluniversal.com/2009/12/21/pol_ava_fiscalia-abre-invest_21A3220251.shtml. Noticias RTV. December 22, 2010. Chávez again says that Mezerhane’s claims will be investigated. Available at: HYPERLINK "http://noticiasrtv.com/noticiasrtv/2009/12/22/chavez-reitero-que-declaraciones-de-mezerhane-seran-investigadas/" http://noticiasrtv.com/noticiasrtv/2009/12/22/chavez-reitero-que-declaraciones-de-mezerhane-seran-investigadas/
Venezolana de Televisión. June 14, 2010. Sudeban announces closed-door takeover of Federal Bank. Available at: HYPERLINK "http://www.vtv.gov.ve/noticias-econ%C3%B3micas/37501" http://www.vtv.gov.ve/noticias-econ%C3%B3micas/37501. El Universal. June 14, 2010. Closed-door takeover of Federal Bank ordered. Available at: HYPERLINK "http://www.eluniversal.com/2010/06/14/eco_ava_ordenan-intervencion_14A4020011.shtmlv" http://www.eluniversal.com/2010/06/14/eco_ava_ordenan-intervencion_14A4020011.shtml
Código ADN. June 16, 2010. Chávez: ‘Zuloaga and the Banker: Come to me, I have a flower’. Available at: HYPERLINK "http://www.codigovenezuela.com/2010/06/noticias/pais/chavez-zuloaga-y-el-banquero-vengan-a-mi-que-tengo-flor/" http://www.codigovenezuela.com/2010/06/noticias/pais/chavez-zuloaga-y-el-banquero-vengan-a-mi-que-tengo-flor/. Venezolana de Televisión. June 16, 2010. Revelan que Banco Federal posee acciones de Globovisión [Revealed: Federal Bank has shares in Globovisión]. Available [in Spanish] at: HYPERLINK "http://www.vtv.gob.ve/noticias-econ%C3%B3micas/37707" http://www.vtv.gob.ve/noticias-econ%C3%B3micas/37707
Código ADN. June 16, 2010. “Chávez: ‘Zuloaga y ‘El Banquero’: Vengan a mí, que tengo flor” Chávez: ‘Zuloaga and the Banker: Come to me, I have a flower’]. Available [in Spanish] at: HYPERLINK "http://www.codigovenezuela.com/2010/06/noticias/pais/chavez-zuloaga-y-el-banquero-vengan-a-mi-que-tengo-flor/" http://www.codigovenezuela.com/2010/06/noticias/pais/chavez-zuloaga-y-el-banquero-vengan-a-mi-que-tengo-flor/. Venezolana de Televisión. June 16, 2010. Revelan que Banco Federal posee acciones de Globovisión [Revealed: Federal Bank has shares in Globovisión]. Available [in Spanish] at: HYPERLINK "http://www.vtv.gob.ve/noticias-econ%C3%B3micas/37707" http://www.vtv.gob.ve/noticias-econ%C3%B3micas/37707
Statements made by President Hugo Chávez, available at: HYPERLINK "http://www.youtube.com/watch?v=PWp2PQ6iKUQ" http://www.youtube.com/watch?v=PWp2PQ6iKUQ
Venezolana de Televisión. Programa La Hojilla. July 20, 2010. On file with the Office of the Special Rapporteur for Freedom of Expression and available at: HYPERLINK "http://www.ojopelao.com/opinion/la-hojilla/18065-la-hojilla-del-dia-martes-20-de-julio-de-2010-video.html" http://www.ojopelao.com/opinion/la-hojilla/18065-la-hojilla-del-dia-martes-20-de-julio-de-2010-video.html
Debate socialista. Address by President Chávez. Available at: HYPERLINK "http://www.debatesocialistadigital.com/Discursos/discursos_2010/julio/acto_ahorrista_banco_federal.html" http://www.debatesocialistadigital.com/Discursos/discursos_2010/julio/acto_ahorrista_banco_federal.html
President’s interview with Venezolana de Televisión on November 20, 2010. Video available at: HYPERLINK "http://www.youtube.com/watch?v=zpR-V-MQnEw" http://www.youtube.com/watch?v=zpR-V-MQnEw
Address delivered by the President of the Republic before a gathering of students. Video available at: HYPERLINK "http://www.youtube.com/watch?v=EuSspn04hEg" http://www.youtube.com/watch?v=EuSspn04hEg. See also: Bloomberg. November 21, 2010. Venezuela’s Chavez Threatens ‘Actions’ Against Globovisión. Available at: HYPERLINK "http://www.bloomberg.com/news/2010-11-21/venezuela-s-chavez-threatens-actions-against-globovision.html" http://www.bloomberg.com/news/2010-11-21/venezuela-s-chavez-threatens-actions-against-globovision.html. El Universal. November 22, 2010. Chávez gives orders to go after Zuloaga. Available at: HYPERLINK "http://www.eluniversal.com.mx/internacional/70630.html" http://www.eluniversal.com.mx/internacional/70630.html
Response received from the Bolivarian Republic of Venezuela on November 24, 2010. AGEV. 000485 (on file with the Office of the Special Rapporteur).
IACHR. 2009 Annual Report. Volume II: Annual Report of the Special Rapporteur for Freedom of Expression, Chapter III (Inter-American Legal Framework of the Right to Freedom of Expression), para. 200.
I/A Court H.R., Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment of August 5, 2008, Series C No. 182, para. 131. See also: I/A Court H.R., Case of Ríos et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 194, para. 139; I/A Court H.R., Case of Perozo et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 195, para. 151
I/A Court H.R., Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment of August 5, 2008, Series C No. 182, para. 131.
IACHR. 2009 Annual Report. Volume II: Annual Report of the Special Rapporteur for Freedom of Expression, Chapter III (Inter-American Legal Framework of the Right to Freedom of Expression), para. 204.
I/A Court H.R., Case of Ríos et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 194, para. 139; I/A Court H.R., Case of Perozo et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 195, para. 151.
I/A Court H.R., Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment of August 5, 2008, Series C No. 182, para. 131.
I/A Court H.R., Case of Ríos et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 194, para. 121; I/A Court H.R., Case of Perozo et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 195, para. 132.
United Socialist Party of Venezuela. July 12, 2010. Cabello: Counter-revolutionary journalists receiving funding from abroad. Available at: HYPERLINK "http://www.psuv.org.ve/temas/noticias/cabello-periodistas-contrarrevolucionarios-reciben-financiamiento-externo/" http://www.psuv.org.ve/temas/noticias/cabello-periodistas-contrarrevolucionarios-reciben-financiamiento-externo/
Venezolana de Televisión. July 13, 2010. Movimiento Periodismo Necesario asked that alleged U.S. funding of NGOs and the media be investigated. Available at: HYPERLINK "http://www.vtv.gov.ve/noticias-econ%C3%B3micas/39519" http://www.vtv.gov.ve/noticias-econ%C3%B3micas/39519; El Universal. July 13, 2010. Investigations of IPYS and Espacio Público sought. Available at: HYPERLINK "http://www.vtv.gov.ve/noticias-econ%C3%B3micas/39519" http://www.vtv.gov.ve/noticias-econ%C3%B3micas/39519
On July 14, in a publicly televised event, President Hugo Chávez asked for an “in-depth” investigation of the complaint filed with the Office of the Prosecutor General concerning the funding of nongovernmental organizations. Programa Venezolano de Educación-Acción en Derechos Humanos. July 14, 2010. President Chávez asked for “in-depth” probe of U.S. funding of Venezuelan NGOs. Available at: HYPERLINK "http://www.derechos.org.ve/proveaweb/?p=5140" http://www.derechos.org.ve/proveaweb/?p=5140. Similarly, on July 20, the Permanent Parliamentary Commission on Science, Technology and Social Communication presented a report on foreign funding of journalists and political parties in Venezuela, based on “declassified U.S. State Department documents.” The Chair of the Commission, Manuel Villalba, recommended that the investigation delve further “to ascertain whether activities that could be classified as crimes under the Constitution and other laws, are being carried out.” El Nacional. July 20, 2010. National Assembly approves report on international funding of Venezuelan journalists. Available at: HYPERLINK "http://www.el-nacional.com/www/site/p_contenido.php?q=nodo/145966/Nacional/AN-aprueba-informe-contra-financiamiento-internacional-a-periodistas-venezolanos" http://www.el-nacional.com/www/site/p_contenido.php?q=nodo/145966/Nacional/AN-aprueba-informe-contra-financiamiento-internacional-a-periodistas-venezolanos
Venezolana de Televisión. August 16, 2010. Golinger files complaint with Prosecutor General concerning U.S. funding of opposition NGOs. Available at: HYPERLINK "http://www.vtv.gob.ve/noticias-nacionales/42054" http://www.vtv.gob.ve/noticias-nacionales/42054
International Coalition of Organizations for Human Rights in the Americas [Coalición Internacional de Organizaciones por los Derechos Humanos en las Américas]. August 12, 2010. International Coalition condemns harassment of organizations and persons who defend human rights in Venezuela. Available at: HYPERLINK "http://www.derechos.org.ve/proveaweb/?p=5871" http://www.derechos.org.ve/proveaweb/?p=5871
Instituto Prensa y Sociedad. July 2010. Concerning our funding and the smear campaign against PIYS Venezuela. Available at: HYPERLINK "http://www.ipys.org.ve/documentos/En%20Venezuela.pdf" http://www.ipys.org.ve/documentos/En%20Venezuela.pdf
El Nacional. December 16, 2010. Carlos Correa struck on the head during NGO demonstration en route to the National Assembly. Available at: HYPERLINK "http://www.el-nacional.com/www/site/p_contenido.php?q=nodo/172370/Naci%C3%B3n/Carlos-Correa-result%C3%B3-agredido-en-manifestaci%C3%B3n-de-ONG-hacia-la-AN" http://www.el-nacional.com/www/site/p_contenido.php?q=nodo/172370/Naci%C3%B3n/Carlos-Correa-result%C3%B3-agredido-en-manifestaci%C3%B3n-de-ONG-hacia-la-AN. El Universal. December 17, 2010. Reporters without Borders condemns attack on Carlos Correa. Available at: HYPERLINK "http://tiempolibre.eluniversal.com/2010/12/17/pol_ava_reporteros-sin-front_17A4868573.shtml" http://tiempolibre.eluniversal.com/2010/12/17/pol_ava_reporteros-sin-front_17A4868573.shtml
I/A Court H.R., Case of Ríos et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 194, para. 145; I/A Court H.R., Case of Perozo et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 195, para. 157.
I/A Court H.R., Case of Ríos et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 194, para. 146; I/A Court H.R., Case of Perozo et al. v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009. Series C No. 195, para. 158.
IACHR. Report on the situation of human rights defenders in the Americas, para. 342, recommendation 19. OEA/Ser.L/V/II.124. Doc. 5 rev.1. March 7, 2006.
IACHR. Request to the Bolivarian Republic of Venezuela seeking information. Ref: Investigation launched against nongovernmental organizations. July 23, 2010.
Observations by the State of Venezuela to the draft of the General Report on the Situation of Human Rights in Venezuela, 2010. Communication of February 22, 2011, observations on the section on Freedom of Thought and Expression.
I/A Court H.R. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment of August 5, 2008, Series C No. 182, para. 131; IACHR. 2008 Annual Report. Volume II: 2008 Annual Report of the Office of the Special Rapporteur for Freedom of Expression. Chapter III: Inter-American legal framework of the right to freedom of expression, para. 202. OEA/Ser.L/V/II.134. Doc. 5 rev. 1. February 25, 2009. Available at: http://www.IACHR.oas.org/annualrep/2008eng/ INFORME%20ANUAL%20RELE%202008.pdf
CIDH. Democracy and Human Rights in Venezuela. December 30, 2009, Chapter IV, para. 411. Available at: HYPERLINK "http://www.cidh.oas.org/countryrep/Venezuela2009eng/VE09CHAPIVENG.htm" http://www.cidh.oas.org/countryrep/Venezuela2009eng/VE09CHAPIVENG.htm
IACHR. 2009 Annual Report of the Inter-American Commission on Human Rights. Report of the Special Rapporteur for Freedom of Expression. Chapter II, Para. 572. OEA/Ser.L/V/II. Doc.51, December 30, 2009. Available at: HYPERLINK "http://www.cidh.oas.org/pdf%20files/Annual%20Report%202009.pdf" http://www.cidh.oas.org/pdf%20files/Annual%20Report%202009.pdf
Reporters without Borders. February 3, 2010. Presidential speeches should have to be broadcast by just one station. Available at: HYPERLINK "http://en.rsf.org/venezuela-presidential-speeches-should-have-03-02-2010,36299" http://en.rsf.org/venezuela-presidential-speeches-should-have-03-02-2010,36299
CONATEL. Administrative Order 01/09 of December 22, 2009. Technical Standard on Domestic Audiovisual Production Services. Available at: HYPERLINK "http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf" http://imagenes.globovision.com/archivos/136439_2009_diciembre_g.o_39.333.pdf
El Nacional. June 17, 2010. Vicente Díaz complains that presidential broadcasts are being increased to help the government party’s campaign. Available at: HYPERLINK "http://el-nacional.com/www/site/p_contenido.php/comentar/p_contenido.php?q=nodo/141940/Nacional/Vicente-D%C3%ADaz-denuncia-incremento-de-cadenas-para-favorecer-campa%C3%B1a-oficial" http://el-nacional.com/www/site/p_contenido.php/comentar/p_contenido.php?q=nodo/141940/Nacional/Vicente-D%C3%ADaz-denuncia-incremento-de-cadenas-para-favorecer-campa%C3%B1a-oficial; Venevisión. National Electoral Council Dean Vicente Díaz complains of notable increase in blanket presidential broadcasts. Available at: HYPERLINK "http://www.youtube.com/watch?v=4RRchK90aOQ" http://www.youtube.com/watch?v=4RRchK90aOQ; Informe21.com. June 17, 2010. Electoral Dean Vicente Díaz asks for an investigation of the increase in blanket presidential broadcasts. Available [at: HYPERLINK "http://informe21.com/politica/rector-vicente-diaz-pide-investigar-incremento-las-cadenas-presidenciales" http://informe21.com/politica/rector-vicente-diaz-pide-investigar-incremento-las-cadenas-presidenciales
Article 58 of the Constitution states: “Communication is free and plural, according to the duties and responsibilities established by law. Every person is entitled to timely, truthful and impartial information, with no censorship, in accordance with the principles established in this Constitution, as well as to reply and rectify whenever [the person] is harmed by inaccurate or harmful information. Boys, girls and teenagers have a right to receive appropriate information for their holistic development.”
Observations by the State of Venezuela to the draft of the General Report on the Situation of Human Rights in Venezuela, 2010. Communication of February 22, 2011, observations on the section on Freedom of Thought and Expression.
Decree 7,454 from the Office of the President of the Republic. Official Gazette 39,434 of June 1, 2010. Available [in Spanish] at: HYPERLINK "http://www.tsj.gov.ve/gaceta/Junio/162010/162010-2863.pdf#page=2" http://www.tsj.gov.ve/gaceta/Junio/162010/162010-2863.pdf#page=2
Decree 7,454 from the Office of the President of the Republic. Official Gazette 39,434 of June 1, 2010. Articles 1 and 4. Available [in Spanish] at: HYPERLINK "http://www.tsj.gov.ve/gaceta/Junio/162010/162010-2863.pdf#page=2" http://www.tsj.gov.ve/gaceta/Junio/162010/162010-2863.pdf#page=2
See in this regard the consideranda to Decree 7,454 from the Office of the President of the Republic. Official Gazette 39,434 of June 1, 2010. Available at: HYPERLINK "http://www.tsj.gov.ve/gaceta/Junio/162010/162010-2863.pdf#page=2" http://www.tsj.gov.ve/gaceta/Junio/162010/162010-2863.pdf#page=2 (where it is asserted that national security “is an essential authority and responsibility of the State” and that the National Executive has exclusive authority over “the collection, classification and dissemination of those matters that have a direct bearing on the planning and executions of operations that concern the security of the Nation.”)
Decree 7,454 from the Office of the President of the Republic. Official Gazette 39,434 of June 1, 2010. Article 3. Available at: HYPERLINK "http://www.tsj.gov.ve/gaceta/Junio/162010/162010-2863.pdf#page=2" http://www.tsj.gov.ve/gaceta/Junio/162010/162010-2863.pdf#page=2
Decree 7,454 from the Office of the President of the Republic. Official Gazette 39,434 of June 1, 2010. Article 9. Available at: HYPERLINK "http://www.tsj.gov.ve/gaceta/Junio/162010/162010-2863.pdf#page=2" http://www.tsj.gov.ve/gaceta/Junio/162010/162010-2863.pdf#page=2
Espacio Público. July 15, 2010. Espacio Público, CNP and SNTP demand repeal of CESNA decree. Available at: HYPERLINK "http://www.espaciopublico.org/index.php/noticias/1-libertad-de-expresi/825-espacio-publico-cnp-y-sntp-exigen-derogatoria-del-decreto-del-cesna-" http://www.espaciopublico.org/index.php/noticias/1-libertad-de-expresi/825-espacio-publico-cnp-y-sntp-exigen-derogatoria-del-decreto-del-cesna-
IACHR. 2009 Annual Report. Volume II: Annual Report of the Special Rapporteur for Freedom of Expression, Chapter IV (The right of access to information), paras. 52, 57, 59. See also, IACHR, Final written pleadings to the Inter-American Court in the Case of Julia Gomes Lund et al (Guemilha do Araguaia).
See in this regard, IACHR, Final written pleadings to the Inter-American Court in the Case of Julia Gomes Lund et al (Guemilha do Araguaia).
Decree 7,454 from the Office of the President of the Republic, Article 9. Official Gazette 39,434 of June 1, 2010. Available at: HYPERLINK "http://www.tsj.gov.ve/gaceta/Junio/162010/162010-2863.pdf#page=2" http://www.tsj.gov.ve/gaceta/Junio/162010/162010-2863.pdf#page=2
I/A Court H.R., Case of Claude Reyes et al. Judgment of September 19, 2006. Series C No. 151, para. 89.
Constitutional Chamber of the Supreme Court of Justice. Judgment 745 of July 15, 2010. Available [in Spanish] at: HYPERLINK "http://www.tsj.gov.ve/decisiones/scon/Julio/745-15710-2010-09-1003.html" http://www.tsj.gov.ve/decisiones/scon/Julio/745-15710-2010-09-1003.html
Constitutional Chamber of the Supreme Court of Justice. Judgment 745 of July 15, 2010, Section V. Operative paragraph two. Available [in Spanish] at: HYPERLINK "http://www.tsj.gov.ve/decisiones/scon/Julio/745-15710-2010-09-1003.html" http://www.tsj.gov.ve/decisiones/scon/Julio/745-15710-2010-09-1003.html
I/A Court H.R., Case of Claude Reyes et al. Judgment of September 19, 2006. Series C No. 151, para. 92.
IACHR. Arguments made to the Inter-American Court of Human Rights in the case of Claude Reyes et al. Transcribed in: I/A Court H.R., Case of Claude Reyes et al. Judgment of September 19, 2006. Series C No. 151, para. 58 c).
I/A Court H.R., Case of Claude Reyes et al. Judgment of September 19, 2006. Series C No. 151, para. 92. See also, the 2004 Joint Declaration of the UN Rapporteur for Freedom of Expression, the OAS Rapporteur for Freedom of Expression and the OSCE Representative on Freedom of the Media, where they explained that the principle of maximum disclosure establishes “a presumption that all information is accessible subject only to a narrow system of exceptions.”
In its 2005 Annual Report, the IACHR observed that: “The Commission and the Office of the Special Rapporteur also express their concern over the March 2005 amendment to the Criminal Code. The Office of the Special Rapporteur believes that this amendment strengthens and expands a legal framework that criminalizes forms of expression protected by the American Convention, by both journalists and private citizens. The Office of the Special Rapporteur observes that the amendment expands the reach of desacato laws in terms of the number of public officials protected, and in terms of content. It also observes that the new provisions increase the penalties for desacato and other forms of defamation, libel, instigation, outrage, and slander, among other criminal offenses. It also criminalizes new types of protest against the government, in both the public and private spheres, and increases the penalties for violating these laws.” IACHR. 2005 Annual Report. Chapter IV, para. 357. Available at: HYPERLINK "http://www.cidh.oas.org/annualrep/2005eng/chap.4d.htm" http://www.IACHR.oas.org/annualrep/2005eng/chap.4d.htm. See also: IACHR. 2005 Annual Report: Volume II: Annual Report of the Special Rapporteur for Freedom of Expression. Chapter II, para. 227. Available at: HYPERLINK "http://www.cidh.oas.org/relatoria/showarticle.asp?artID=662&lID=1" http://www.IACHR.oas.org/relatoria/showarticle.asp?artID=662&lID=1; Office of the Special Rapporteur – IACHR, March 28, 2005. Press Release No. 118/05. Available at: HYPERLINK "http://www.cidh.org/relatoria/showarticle.asp?artID=402&lID=1" http://www.IACHR.org/relatoria/showarticle.asp?artID=402&lID=1; IACHR. Report on the Situation of Human Rights in Venezuela, paragraphs 451-466. OEA/Ser.L/V/II.118. Doc. 4 rev. 1. October 24, 2003. Available at: HYPERLINK "http://www.cidh.oas.org/countryrep/Venezuela2003eng/chapter6.htm" http://www.IACHR.oas.org/countryrep/Venezuela2003eng/chapter6.htm
“Article 147. One who offends by word or in writing, or in any other manner disrespects the President of the Republic or whoever is taking his or her place, shall be punished with imprisonment of six to thirty months if the offense was grave, and with half that period if it was minor.//The penalty will be increased by one-third if the offense was committed publicly”.
“Article 148. When the acts specified in the previous article are carried out against the person of the Executive Vice President of the Nation, one of the Judges of the Supreme Court of Justice, a Cabinet Minister, a Governor of a state, a deputy of the National Assembly, the Metropolitan Mayor, a dean of the National Electoral Council, the Human Rights Ombudsman, the Solicitor General, the Attorney General, the Comptroller General of the Republic, or some members [sic] of the High Military Command, the penalty indicated in that article will be reduced to one half, and to one third in the case of municipalities”. Penal Code of Venezuela. Official Gazette No. 5768E of August 13, 2005. Available at: HYPERLINK "http://www.ministeriopublico.gob.ve/web/guest/codigo-penal" http://www.ministeriopublico.gob.ve/web/guest/codigo-penal
“Article 149. Whoever publicly denigrates the National Assembly, the Supreme Court of Justice, or the Cabinet, or the Council of Ministers, as well as one of the legislative councils of the states or one of the superior courts, shall be punished with imprisonment for a period of fifteen days to ten months.
The penalty will be half that period in the case of those who commit the acts referred to in this article with respect to municipal councils.
The penalty will be increased by half if the offense was committed while one of the enumerated bodies was exercising its official functions”. Penal Code of Venezuela. Official Gazette No. 5768E of August 13, 2005. Available [in Spanish] at: HYPERLINK "http://www.ministeriopublico.gob.ve/web/guest/codigo-penal" http://www.ministeriopublico.gob.ve/web/guest/codigo-penal
IACHR. 2009 Annual Report. Volume II: Annual Report of the Special Rapporteur on Freedom of Expression, Chapter II (Evaluation of the State of Freedom of Expression in the Hemisphere), para. 550.
IACHR. 1994 Annual Report. Chapter V: Report on the Compatibility of the Desacato Laws with the American Convention on Human Rights. OEA/Ser. Doc. 9 rev., February 17, 1995, Title I: Introduction. L/V/II.88. doc. 9 rev. February 17, 1995. Available at: HYPERLINK "http://www.cidh.oas.org/annualrep/94eng/chap.5.htm" http://www.IACHR.oas.org/annualrep/94eng/chap.5.htm
IACHR. Report on the Situation of Human Rights in Venezuela, para. 452. OEA/Ser.L/V/II.118. Doc. 4 rev. 1. October 24, 2003. Available at: HYPERLINK "http://www.cidh.oas.org/countryrep/Venezuela2003eng/chapter6.htm" http://www.IACHR.oas.org/countryrep/Venezuela2003eng/chapter6.htm
It is important to point out that this was the article under which Francisco Usón Ramírez was convicted and sentenced to six years and five months in prison. I/A Court H.R., Case of Usón Ramírez v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 20, 2009. Series C No. 207, para. 38.
I/A Court H.R., Case of Usón Ramírez v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 20, 2009. Series C No. 207, para. 56.
I/A Court H.R., Case of Usón Ramírez v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 20, 2009. Series C No. 207, para. 56.
I/A Court H.R., Case of Usón Ramírez v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 20, 2009. Series C No. 207, paras. 59 et seq.
The relevant laws and regulations are explained in greater detail in the 2009 Annual Report of the Special Rapporteur for Freedom of Expression, Chapter II (Evaluation of the State of Freedom of Expression in the Hemisphere), paragraphs 505 et seq.
National Assembly of the Bolivarian Republic of Venezuela. Decree 7,588 from the Office of the President of the Republic (Official Gazette No. 39,479 of August 3, 2010). Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_download&gid=2500&Itemid=250&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_download&gid=2500&Itemid=250&lang=es
IACHR. 2009 Annual Report. Volume II: Annual Report of the Special Rapporteur for Freedom of Expression, Chapter II (Evaluation of the state of freedom of expression in the hemisphere), paragraphs 535 et seq.
IACHR. 2009 Annual Report. Volume II: Annual Report of the Special Rapporteur for Freedom of Expression, Chapter II (Evaluation of the state of freedom of expression in the hemisphere), para. 538. Under Article 29 of the Law on Social Responsibility, providers of radio and television services that “promote, justify or incite to war; that promote, defend or incite disruption of law and order; promote, defend or encourage crime; are discriminatory; promote religious intolerance; [or] are inimical to the Nation’s security” may face a penalty of suspension for a period of 72 hours or have their operating license revoked for up to five years in the case of repeat offenders. Heretofore, the Commission has commented on the dangers that provisions like Article 29 pose [which] “set very punitive sanctions for violating restrictions that are defined in vague or generic language.” Cf. IACHR. 2008 Annual Report. Chapter IV. Human Rights Developments in the Region, para. 381. Available at: HYPERLINK "http://www.cidh.oas.org/annualrep/2008eng/Chap4eng.htm" http://www.IACHR.oas.org/annualrep/2008eng/Chap4eng.htm
Article 219 of the Constitution of the Bolivarian Republic of Venezuela reads as follows: “Article 219. The first regular legislative session of the National Assembly shall begin, without advance notice, on January fifth of each year or as soon thereafter as possible, and will last until August 15.// The second session shall begin on September 15 or as soon thereafter as possible and will end on December 15.” Available at: HYPERLINK "http://www.tsj.gov.ve/legislacion/enmienda2009.pdf" http://www.tsj.gov.ve/legislacion/enmienda2009.pdf
El Nacional. December 10, 2010. Chávez solicitará Habilitante a la AN para aprobar leyes extraordinarias en navidad [Chávez will ask NA for Enabling Law in order to approve special laws at Christmas]. Available at: HYPERLINK "http://el-nacional.com/www/site/p_contenido.php?q=nodo/171254/Naci%C3%B3n/Ch%C3%A1vez-solicitar%C3%A1-Habilitante-a-la-AN-para-aprobar-leyes-extraordinarias-en-navidad" http://el-nacional.com/www/site/p_contenido.php?q=nodo/171254/Naci%C3%B3n/Ch%C3%A1vez-solicitar%C3%A1-Habilitante-a-la-AN-para-aprobar-leyes-extraordinarias-en-navidad. Noticiero Digital. December 10, 2010. Chávez solicitará una Ley Habilitante y pide “celeridad” a la AN [Chávez will seek an Enabling Law and is asking the NA to work quickly]. Available at: HYPERLINK "http://www.noticierodigital.com/2010/12/chavez-solicitara-ley-habilitante-a-la-an/" http://www.noticierodigital.com/2010/12/chavez-solicitara-ley-habilitante-a-la-an/
IACHR. Press Release 122/10. December 15, 2010. IACHR Concerned about Law Initiatives in Venezuela that Could Undermine the Effective Exercise of Human Rights. Available at: HYPERLINK "http://www.cidh.oas.org/Comunicados/English/2010/122-10eng.htm" http://www.IACHR.oas.org/Comunicados/English/2010/122-10eng.htm
Law authorizing the President of the Republic to issue decrees with the rank, value and force of law on the subjects delegated to him. Approved by the National Assembly on December 16, 2010. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2783&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2783&tmpl=component&format=raw&Itemid=185&lang=es
El Universal. December 21, 2010. New Ley Resorte said to limit internet violence. Available at: HYPERLINK "http://internacional.eluniversal.com/2010/12/21/eco_ava_afirman-que-nueva-le_21A4883573.shtml" http://internacional.eluniversal.com/2010/12/21/eco_ava_afirman-que-nueva-le_21A4883573.shtml. Telesur. December 22, 2010. Venezuela’s Media Law enacted. Available at: HYPERLINK "http://www.telesurtv.net/secciones/noticias/86202-NN/promulgada-ley-de-medios-en-venezuela/" http://www.telesurtv.net/secciones/noticias/86202-NN/promulgada-ley-de-medios-en-venezuela/
See Law on Social Responsibility in Radio, Television, and Electronic Media. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es. Article 1 reads as follows: The provisions of the present law shall apply to any text, image or sound that is disseminated and received within the territory of the Bolivarian Republic of Venezuela, whether it be by way of: (…) 4. Electronic media.”
See Law on Social Responsibility in Radio, Television, and Electronic Media. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es. Article 6 establishes four content types for rating programs: language, health, sex and violence. The regulation defines various types of content whose broadcasting by the communications media, mainly the audiovisual media, is subject to prohibitions and restrictions that confine that content to certain times of the day, which are spelled out in Article 7.
See Law on Social Responsibility in Radio, Television, and Electronic Media. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es. Article 27 provides that: “The radio, television and electronic media services are not permitted to broadcast messages that: // 1. Incite or promote hatred and intolerance on grounds of religion, politics, gender, racism or xenophobia. // 2. Incite or promote and/or justify or defend crime. // 3. Constitute war propaganda. // 4. Cause public fear or unrest. // 5. Ignore the legally constituted authorities. // 6. Induce killing. // 7. Incite or encourage disobedience of the established legal system.”
See Law on Social Responsibility in Radio, Television, and Electronic Media. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es. Indeed, Article 29 of the law establishes a fine for violations whereas under the previous version of the law, the penalty was simply to make airtime available for public interest announcements and the like.
See in this regard, IACHR. Democracy and Human Rights in Venezuela (2009). Available at: HYPERLINK "http://www.cidh.oas.org/countryrep/Venezuela2009eng/VE09.TOC.eng.htm" http://www.cidh.oas.org/countryrep/Venezuela2009eng/VE09.TOC.eng.htm. See the recommendations in Chapter IV at paragraphs 555 et seq, especially paragraph 555(1).
See Law on Social Responsibility in Radio, Television, and Electronic Media. Article 28. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es
This has been the Commission’s finding when similar provisions were examined. In effect, the Office of the Special Rapporteur for Freedom of Expression wrote that “vague, ambiguous, broad or open-ended laws, by their mere existence, discourage the dissemination of information and opinions out of fear of punishment, and can lead to broad judicial interpretations that unduly restrict freedom of expression” (IACHR, 2008 Annual Report. Volume II. Chapter III, paragraphs 65-66. Available at: HYPERLINK "http://www.cidh.oas.org/annualrep/2008eng/Annual%20Report%202008-%20RELE%20-%20version%20final.pdf" http://www.cidh.oas.org/annualrep/2008eng/Annual%20Report%202008-%20RELE%20-%20version%20final.pdf).
See Law on Social Responsibility in Radio, Television, and Electronic Media. Article 28. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es
See Law on Social Responsibility in Radio, Television, and Electronic Media. Article 33. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es. See, in particular, Article 33 of the law, which reads as follows: “In the course of the penalty phase of the proceedings, or even when the case is opened, the National Telecommunications Commission may, either ex officio or at a party’s request, order the following precautionary measures: 1.- Order the providers of radio, television, cable or electronic media services to refrain from circulating messages that violate the provisions of this law. (…)”.
See Law on Social Responsibility in Radio, Television, and Electronic Media. Article 28. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es. The pertinent part of Article 28 reads as follows: “Electronic media providers shall be liable for any prohibited information and content to which the present article refers, in those cases in which they were the originators of the transmission, altered the data, selected the receivers or neglected to limit access to them, when so requested by the organs with competence in this matter.”
See Law on Social Responsibility in Radio, Television, and Electronic Media. Article 27. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es. The pertinent part of Article 27 provides as follows: “Paragraph One. The owners of the electronic media shall face a fine of from 50 to 200 tax units when they violate any of the bans contained in this article. Paragraph Two: Electronic media providers that fail to heed requests from the competent authorities to comply with the provisions of this law, shall face a fine of up to 4% of the gross earnings in the year immediately preceding the year in which the violation was committed.”
See Law on Social Responsibility in Radio, Television, and Electronic Media. Article 29. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2771&tmpl=component&format=raw&Itemid=185&lang=es. The pertinent part of Article 29 reads as follows: “The subjects to whom this law shall, whenever warranted, face the following penalties in the circumstances indicated: 1. A fine of up to 10% of the gross earnings in the year immediately preceding the year in which the violation was committed, and/or suspension for up to seventy-two uninterrupted hours of broadcasting, when they disseminate messages that: a) promote, justify or incite disruptions of public law and order; b) promote, justify or incite crime; c) incite or promote hatred or intolerance based on religion, politics, gender difference, racism or xenophobia; d) encourage discrimination; e) use anonymity; f) constitute propaganda for war; g) cause public anxiety or unrest; h) ignore the legitimately constituted authorities.”
2005 joint declaration of the rapporteurs for freedom of expression of the United Nations, the OSCE and the OAS. Available at: HYPERLINK "http://www.cidh.oas.org/relatoria/showarticle.asp?artID=650&lID=1" http://www.cidh.oas.org/relatoria/showarticle.asp?artID=650&lID=1
IACHR. Press Release 122/10. December 15, 2010. IACHR Concerned about Law Initiatives in Venezuela that Could Undermine the Effective Exercise of Human Rights. Available at: HYPERLINK "http://www.cidh.oas.org/Comunicados/English/2010/122-10eng.htm" http://www.IACHR.oas.org/Comunicados/English/2010/122-10eng.htm
AFP. December 21, 2010. New controls established on telecommunications and the internet in Venezuela. Available at: HYPERLINK "http://www.google.com/hostednews/afp/article/ALeqM5hVpCngs2i2MAWWTbatMQewyMMa2Q?docId=CNG.f7b316619e9b55b1cae698370b94f3cb.131" http://www.google.com/hostednews/afp/article/ALeqM5hVpCngs2i2MAWWTbatMQewyMMa2Q?docId=CNG.f7b316619e9b55b1cae698370b94f3cb.131. ANSA. December 21, 2010. Law regulating telecommunications passes. Available at: HYPERLINK "http://www.ansa.it/ansalatina/notizie/notiziari/venezuela/20101221155135194298.html" http://www.ansa.it/ansalatina/notizie/notiziari/venezuela/20101221155135194298.html. El Nacional. December 21, 2010. Telecommunications Law passed Monday night. Available at: HYPERLINK "http://www.el-nacional.com/www/site/p_contenido.php?q=nodo/173005/Naci%C3%B3n/Aprobada-Ley-de-Telecomunicaciones-en-horas-de-la-noche-del-lunes" http://www.el-nacional.com/www/site/p_contenido.php?q=nodo/173005/Naci%C3%B3n/Aprobada-Ley-de-Telecomunicaciones-en-horas-de-la-noche-del-lunes
Organic Law on Telecommunications (on file with the Office of the Special Rapporteur for Freedom of Expression). See also, Report of the Permanent Commission on Science, Technology and Social Communications, for second round of debate. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2780&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2780&tmpl=component&format=raw&Itemid=185&lang=es
Organic Law on Telecommunications (on file with the Office of the Special Rapporteur for Freedom of Expression). See also, Report of the Permanent Commission on Science, Technology and Social Communications, for second round of debate. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2780&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2780&tmpl=component&format=raw&Itemid=185&lang=es. Article 20 reads as follows: “The National Telecommunications Commission shall establish, based on the distinguishing characteristics of the type of networks and services concerned, the General Conditions that those interested in obtaining a government license, concession or permit must meet under the provisions of this law.”
Organic Law on Telecommunications (on file with the Office of the Special Rapporteur for Freedom of Expression). See also, Report of the Permanent Commission on Science, Technology and Social Communications, for second round of debate. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2780&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2780&tmpl=component&format=raw&Itemid=185&lang=es. Transitory regulation fourth reads as follows: “Current providers of domestic audiovisual production services shall apply to the National Telecommunications Commission for the necessary permit, within the time period and under the conditions that the National Telecommunications Commission establishes for that purpose. Only those natural or legal persons that apply for and obtain the corresponding permit, under the terms prescribed in this law, may continue to provide domestic audiovisual production services.” (On file with the Office of the Special Rapporteur for Freedom of Expression).
The law simply states that “[a]s the appointed organ, the National Telecommunications Commission is in charge of telecommunications in the State, and as such establishes the policies, plans and general standards that are to be followed in the telecommunications sector, in accordance with this law and in keeping with the national development plans that the National Executive establishes” (Article 34).
Organic Law on Telecommunications (on file with the Office of the Special Rapporteur for Freedom of Expression). See also, Report of the Permanent Commission on Science, Technology and Social Communications, for second round of debate. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2780&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2780&tmpl=component&format=raw&Itemid=185&lang=es. The pertinent part of Article 22 reads as follows: “The lead agency may, when it deems such action to be in the national interest or when public order or security so demand, revoke or suspend the government licenses or concessions.” (On file with the Office of the Special Rapporteur for Freedom of Expression).
Organic Law on Telecommunications (on file with the Office of the Special Rapporteur for Freedom of Expression). See also, Report of the Permanent Commission on Science, Technology and Social Communications, for second round of debate. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2780&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2780&tmpl=component&format=raw&Itemid=185&lang=es. Article 170(10) provides that: “A repeat of any of the offenses to which this section refers and that occurs within the space of one year from the date when the previous violation was definitively established.” (On file with the Office of the Special Rapporteur for Freedom of Expression).
IACHR. Press Release 122/10. December 15, 2010. IACHR Concerned about Law Initiatives in Venezuela that Could Undermine the Effective Exercise of Human Rights. Available at: HYPERLINK "http://www.cidh.oas.org/Comunicados/English/2010/122-10eng.htm" http://www.IACHR.oas.org/Comunicados/English/2010/122-10eng.htm
Radio Nacional de Venezuela. December 22, 2010. Head of State enacts laws on Parties and Defense of Sovereignty. Available at: HYPERLINK "http://www.rnv.gob.ve/noticias/index.php?act=ST&f=2&t=145270" http://www.rnv.gob.ve/noticias/index.php?act=ST&f=2&t=145270. La Crónica de Hoy. December 23, 2010. National Assembly approves law that prevents parties and NGOs from receiving foreign support. Available at: HYPERLINK "http://www.cronica.com.mx/nota.php?id_nota=551474" http://www.cronica.com.mx/nota.php?id_nota=551474
Bill on Defense of the Political Sovereignty and Self-Determination of the Nation. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2769&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2769&tmpl=component&format=raw&Itemid=185&lang=es
IACHR. Press Release 122/10. December 15, 2010. IACHR Concerned about Law Initiatives in Venezuela that Could Undermine the Effective Exercise of Human Rights. Available at: HYPERLINK "http://www.cidh.oas.org/Comunicados/English/2010/122-10eng.htm" http://www.IACHR.oas.org/Comunicados/English/2010/122-10eng.htm
Bill on Defense of the Political Sovereignty and Self-Determination of the Nation. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2769&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2769&tmpl=component&format=raw&Itemid=185&lang=es. Article 8. Representatives of political organizations, representatives of organizations for the defense of political or private individuals that invite, under their sponsorship, foreign citizens or organizations to express views that offend the institutions of the State, its high-ranking officials or attack their exercise of sovereignty, shall face a fine of between five and ten thousand tax units, apart from any penalties established in other laws. // Foreign citizens who participate in the activities described in this article shall be expelled from the territory of the Republic, in accordance with the provisions of the laws that regulate this subject.
According to the information received, at the time this reoprt went to press, the President had vetoed the legislation. For original articles, see AFP. December 23, 2010. Venezuela approves law that promotes socialism in universities. Available at: HYPERLINK "http://www.google.com/hostednews/afp/article/ALeqM5jMroNmzm-jj5jP0E72U9hdDBeoBQ?docId=CNG.50e279c89752000e7527bb02f044cce8.331" http://www.google.com/hostednews/afp/article/ALeqM5jMroNmzm-jj5jP0E72U9hdDBeoBQ?docId=CNG.50e279c89752000e7527bb02f044cce8.331. La Nación. December 23, 2010. Polémica ley sobre socialismo en Venezuela. Available at: HYPERLINK "http://www.nacion.com/2010-12-24/Mundo/NotasSecundarias/Mundo2631604.aspx" http://www.nacion.com/2010-12-24/Mundo/NotasSecundarias/Mundo2631604.aspx
University Education Bill. Article 3.2. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2788&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2788&tmpl=component&format=raw&Itemid=185&lang=es
University Education Bill. Article 3.6. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2788&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2788&tmpl=component&format=raw&Itemid=185&lang=es
University Education Bill. Article 17. Available at: HYPERLINK "http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2788&tmpl=component&format=raw&Itemid=185&lang=es" http://www.asambleanacional.gob.ve/index.php?option=com_docman&task=doc_view&gid=2788&tmpl=component&format=raw&Itemid=185&lang=es
IACHR. Report on Democracy and Human Rights in Venezuela, December 30, 2009, Chapter V, paragraphs 953-956.
Information received at the hearing on Democratic Institutions and Human Rights Defenders in Venezuela, 140th Session, October 29, 2010. Cited in Civilis. Investigación y Acción de la Sociedad Civil de Derechos Humanos. Amenazas y Restricciones a los Derechos Humanos y la Democracia en Venezuela Informe Comprehensivo de Seguimiento. [Civilis. Investigation and Action by Human Rights Civil Society. Threats and Restrictions to Human Rights and Democracy in Venezuela. Comprehensive Follow-up Report], January-September 2010, p. 50.
Information received at the hearing on the Situation of Human Rights in Venezuela, 140th Session, October 29, 2010. Bolivarian Republic of Venezuela. Accomplishing the Millennium Development Goals.
United Nations Development Programme and the OAS General Secretariat. Nuestra Democracia, 2010.
http://www.americaeconomia.com/economia-mercados/finanzas/cepal-destaco-reduccion-de-la-pobreza-en-argentina-brasil-venezuela-y-bol.
In its response of February 18, 2011, the State recognized that its weakness regarding procedural delays, Venezuela's overcrowded prisons and high rate of violence, mentioned in the eleventh recommendation.
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