May 4, 2006

Documenting the documentable...

Here's just a taste of the Venezuela Chapter of the Interamerican Commission on Human Right's 2005 Annual Report:

A. Risk of segregating a sector of Venezuelan society because of its political dissent

324. In 2005, the Commission received a mounting number of complaints and information indicating a worrisome trend in discriminatory actions against persons who make public their dissent from government policies and those who called for the removal of President Hugo Chávez Frías, in the referendum on revoking the presidential mandate that was held August 15, 2004. The Commission considers that the discriminatory actions based on one’s political opinion have a serious and grave detrimental impact on the observation and enjoyment of fundamental rights enshrined in the American Convention. A pronouncement by the Commission on Human Rights of the United Nations on this question recognizes that “…tolerance involves a positive acceptance of diversity and that pluralism encompasses the willingness to accord equal respect to the civil, political, economic, social and cultural rights of all individuals … tolerance and pluralism strengthen democracy, facilitate the full enjoyment of all human rights and thereby constitute a sound foundation for civil society, social harmony and peace[.]”[320]

325. In this regard, the Commission states its concern over the existence of a tendency to intimidate, harass, and stigmatize persons or organizations who speak out against government policies or officials. Even though over the last year the extent of social conflict characterized by violence and confrontation in public demonstrations has diminished, the Commission is concerned about the weakening of democratic checks and balances on the exercise of governmental authority, especially basic guarantees for the exercise of human rights advocacy, freedom of expression, and freedom to engage in opposition politics. The Commission was also alerted to the existence of a growing number of discriminatory acts by State entities and private sectors in giving employment and public services contracts for ideological or other related reasons. According to this information, those who have political disagreements with the current government would end up unemployed or negatively impacted by these discriminatory acts because of their views.

326. The complaints received include allegations that one of the tools used in this new pattern of discrimination is the so-called “Tascón list,” which contains the signatures of those persons who in 2004 submitted the request to call a referendum to revoke the mandate of President Hugo Chávez Frías. According to publicly-known information, the total list of the names of those persons was made public on the web site of the Movimiento Quinta República (MVR); beginning with Luís Tascón, this led to the dismissal of a large number of public employees, in various parts of the country, without recognition of their labor benefits.

327. The Commission learned that even though on April 15, 2005, the President of the Republic made an appeal to the regional authorities and those who work with them to archive and bury the so-called Tascón list[321], complaints persist to this day that “the list” is still being used to limit the signers’ access to basic services and social welfare programs, and that they continue being dismissed or not given employment in private firms as well as state enterprises.[322] Following are a few examples:

On April 15, 2005, the Center for Human Rights at the Universidad Católica Andrés Bello (CDH UCAB) and Provea filed an appeal against the decision of the 21st Oversight Court of the Criminal Circuit for the Caracas Metropolitan Area, which decided to consider concluded the investigation into the President and other officials of the CNE [Consejo Nacional Electoral] for applying pressure tactics to get citizens Rocío San Miguel, Magally Chang, and Thaís Peña to withdraw their signatures from the call for the referendum on revocation of the presidential mandate. Rocío San Miguel, Magally Chang, and Thaís Peña went to court to ratify their complaint alleging they had been dismissed in 2004 for political reasons, and with respect to which they have been pursuing various judicial remedies. The three of them worked in the CNF as legal counsel, public relations executive, and personnel assistant, respectively. On May 1, 2004, they were dismissed, without any reprimand in their files or any reorganization of the entity giving rise to a reduction in force. It is indicated that when they were given the notices, the Executive Secretary of the CNF informed them orally and individually that the dismissal was for having signed on against the President of the Republic.

The president of the public-sector workers’ union Federación Unitaria Nacional de Empleados Públicos (FEDEUNEP) stated that he has documented 780 cases of persons negatively affected by political discrimination, and the sanctions meted out by those public employees who applied this measure against those who signed petitions for the referendum to be held. Of this total, 200 were dismissed, 400 were subjected to pressure tactics, and 180 transferred. According to the records of the FEDEUNEP, at the Ministry of Interior and Justice (MIJ) 20 persons were dismissed; in the Deposit Guarantee and Bank Protection Fund (FOGADE), 42, although it is estimated that the actual figure is 120; in the water works (Operadora de Acueductos) of the Capital District and the states of Vargas and Miranda (Hidrocapital), 12; in the city government of Sucre, seven; in the National Elections Council (CNE), five; in the Ministry of Higher Education (MES), two; in the Ministry of Production and Commerce (MPC), two; in the National Parks Institute (INPARQUES); in the Urban Transportation Fund (FONTUR), four; in the Caracas Metro, 11; in the Corporation for Recovery and Development of the state of Vargas (CORPOVARGAS), 3; in Venezolana de Televisión (VTV), one; and also one each in the office of the Governor of Guárico, the National Sports Institute (IND), the National Tourism Institute (INATUR), the Office of the Controller of the state of Mérida, the National Council on Culture (CONAC), the Instituto Universitario del Este, the Commission for the Administration of Foreign Exchange (CADIVI), the Ministry of Labor (MINTRA), the Ministry of Finance (MF), the Ministry of Agriculture and Lands (MAT), the Ministry of Infrastructure (MINFRA), the Ministry of Health and Social Development (MSDS), the Ministry of Science and Technology (MCT), the Hospital Universitario; the municipal government of Libertador, and the Metropolitan Education Zone.

Manuel Cova, Secretary General of the Confederación de Trabajadores de Venezuela (CTV), alleged that ”political-labor persecution continues in the public sector through the list of those who signed the request for the presidential referendum, disseminated by deputy Luis Tascón.” Cova said that “in recent days 421 workers from city hall and the governor’s office in Miranda were removed from their positions by dismissals and forced retirement.”

Gloria Pacheco, representative of the first slate in the upcoming elections of the Venezuelan Dentistry Association (COV: Colegio de Odontólogos de Venezuela), alleged that Venezuelan dentists who participate in the Misión Barrio Adentro (MBA) program are being threatened with dismissal for political reasons: “the regional coordinating body of dentists who work in the Barrio Adentro program in Barinas, Olida Santiago, brought together her subordinates to tell them that in the upcoming elections for the Board of Directors of the COV they had to place their ballots open in the ballot boxes, so they could be identified by the slate they were voting for, and anyone who did not do so would be fired.” Pacheco indicated that "this, clearly, is a flagrant violation of the Constitution and the Law on Voting and Political Participation, which provides that voting is universal and by secret ballot."

328. One of these basic pillars of democratic government is respect for the fundamental rights of individuals under the principle of equality and non-discrimination. The consolidation of democracies requires stepped-up participation of all social sectors in the political, social, and cultural life of each nation. In this regard, Article 1 of the American Convention establishes the need for the States party to “undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.”

329. Given that the American Convention does not define discrimination, one can take as a basis the definitions contained in the International Convention on the Elimination of All Forms of Racial Discrimination and in the Convention on the Elimination of All Forms of Discrimination Against Women to argue that discrimination is any distinction, exclusion, restriction, or preference based on certain motives, such as race, color, sex, language, religion, political or other opinion, national or social origin, economic position, birth or any other social condition, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms of all persons.[323] Accordingly, the Commission considers that any treatment that may be considered discriminatory with respect to the rights enshrined in the Convention is, per se, incompatible with it.[324]

330. The Commission is of the view that the lack of equitable participation impedes the broad development of democratic and pluralist societies, exacerbating intolerance and discrimination. The inclusion of all sectors of society in the processes of communication, decision-making, and development is fundamental to ensuring that their needs, opinions, and interests are considered in designing policies and in decision-making.[325]

331. The Commission notes that the discriminatory acts of the State against persons who have an ideology or political opinion different from whatever administration is in office may take on more subtle indirect forms which at times may be more effective for deterring criticism or for exercising coercion that leads to a change of position, at least in public, resulting in greater apparent alignment with the positions of the governing party. The Commission finds that dismissing employees and obstructing access to social benefits, among other measures, to punish those persons who express their voice of dissent from the administration are violations of human rights and should be subject to generalized censure, and should be investigated.

332. In this context, and with a view to encouraging analysis, the Commission takes this opportunity to refer to some decisions of the United Nations Human Rights Committee[326] and the European Court of Human Rights that exemplify the case-law in international law, and which are relevant for discouraging a possible deepening of a culture of discrimination and intolerance for political pluralism in Venezuela.

333. In Yong Joo Kang vs. Republic of Korea[327], the Human Rights Committee of the UN held that the application of “an ideology conversion system” to a prisoner convicted of espionage for distributing publicly available information violated his right to freedom of expression. The petitioner, along with other acquaintances of his, was an opponent of the military regime. In 1984, he distributed pamphlets in which he criticized the regime and the use of the security forces to harass him and others. In January, March, and May 1985, he distributed dissident publications that addressed political, economic, social, and historical matters. On July 1, 1985, the petitioner was arrested without court order by the Agency for National Security Planning (ANSP) and tried on charges of violating the National Security Law, and sentenced to life in prison, after the Criminal District Court of Seoul related on his confessions.

334. In his communication, the petitioner argued that being coerced to change his political opinion and the withholding of benefits (such as the possibility of release on parole) if he did not “convert” were tantamount to a violation of his right to freedom of conscience. The Committee concluded that the “ideology conversion system” to which the author had been subjected while he served his sentence was coercive and applied in a discriminatory fashion for the purpose of changing the political opinion of a prisoner, offering him incentives in the way of special treatment in prison and a greater possibility of parole, constituting a violation of Article 19(1) of the International Covenant on Civil and Political Rights.

335. In a case decided by the European Court of Human Rights, Vogt vs. Germany[328] (1995), the European Court held that the state’s action of placing the petitioner at a disadvantage, mindful of her political convictions as an active member of the German Communist Party since 1972, violated Articles 10(2) and 11 of the European Convention. The case had to do with the dismissal of a language teacher from a public high school for having participated in public events as a member of her party and having run as a candidate in regional parliamentary elections in 1982. The dismissal went forward even though the petitioner had a satisfactory record in her performance as a professional and even though those activities were held outside of the school setting. In 1982 the Regional Council of Weser-Ems brought disciplinary proceedings against the petitioner for breach of the duty of every public servant to serve and swear loyalty to the Constitution, as she was involved in political activities of the German Communist Party since 1980. For her part, the petitioner argued that her political activity as a member of the Communist Party was lawful, and that every citizen has the right to participate in political activities.

336. In view of the international case-law on the matter, even the possibility that discriminatory actions might be taking place in Venezuela because of the political or ideological expression of persons is highly alarming. The Commission maintains that every person has the right to legitimately exercise his or her freedom of expression, assembly, association, and conscience, and that these constitute a form of pluralism that is necessary to ensure the rights recognized in the various international human rights instruments, and to strengthen democratic institutions. The obstruction or intimidation of persons seeking to exercise these liberties strips individuals and the various sectors of society of instruments for defending their interests, protesting, criticizing, making proposals, and exercising oversight and active citizenship in their pursuit of popular sovereignty within the democratic framework.

B. Human rights defenders[329]

337. In 2005 harassment and intimidation of human rights defenders continued. The Commission was informed that judicial proceedings were instituted against human rights defenders, whose purpose is allegedly to silence their reports. In addition, high-level officials continued to question the legitimacy of their work. The IACHR expresses its grave concern over the impact these statements could have on the security of human rights defenders.

1. Threats and violence against human rights defenders

338. The Commission has learned that a climate of hostility and threats to the lives and physical integrity of human rights defenders continues to exist in Venezuela. In this respect, the Commission was informed that on January 23, 2005, in the city of Caracas, eight alleged officers of the Metropolitan Police entered and searched, without court order, the residence of Luís Rafael Ugas, president of the Fundación para las Garantías, Prevención y Defensa de los Derechos Humanos (FUNGAPDEHCA). According to the information provided to the Commission, the police agents arbitrarily and illegally detained Mr. Ugas’s brother, when they found that Mr. Ugas was not home. Ten days later, Rafael Ugas was intercepted in the street by four unidentified individuals, who placed him in a vehicle. There he was beaten and cigarette burns were inflicted on his back several times. Before being released, death threats were made to Mr. Ugas.[330]

2. Discrediting of human rights work by state authorities

339. Since 2001 the Commission has received repeated reports of state acts aimed at de-legitimizing and criminalizing the actions of Venezuelan and international human rights organizations working in Venezuela. In 2005, the IACHR has observed an increase in such reports due to the statements made by representatives of the Legislative branch, the Executive branch, the Public Ministry, and the even Judicial branch. High-level members of these government bodies have publicly accused several human rights organizations and their members of being part of a pro-coup strategy, or of having improper ties with foreign countries supposedly plotting to destabilize the Government.[331]

340. The Commission is concerned by the statements made by public authorities aimed at discrediting and stigmatizing human rights defenders, especially when such statements are made by members of the Judiciary in charge of judicial investigations or proceedings against defenders. In addition, the Commission considers it lamentable that high-level state officials have made statements aimed at attacking the professionalism of persons who have appeared before the organs of protection of the inter-American system. In this respect, the Commission has learned of the statements by Attorney General Isaías Rodríguez, discrediting the professional activity of attorney Carlos Ayala Corao in his participation before the Inter-American Court of Human Rights[332]; and the statements by Interior and Justice Minister Jesse Chacón, in which he discredits the work of human rights defender Humberto Prado just days after he appeared in a hearing at the headquarters of the IACHR concerning the prison situation in Venezuela.[333]

341. As reported to the Commission, these statements seek to get human rights organizations to desist from making use of the international protection mechanisms, and help maintain and intensify the risk that human rights defenders face to their personal integrity. Official speeches and pronouncements that stigmatize, de-legitimize, and criminalize the work of human rights defenders have been followed by statements and opinion articles by persons close to the government that suggest that human rights defenders are participating in criminal acts aimed at overthrowing the established government. These declarations seek to create a mistaken perception in society regarding the work of human rights defenders.

342. The Commission was informed of this situation in a communiqué dated June 29, 2005, in which the Ministry of Foreign Affairs suggested that the organizations providing counsel to the victims in one of the cases before the Inter-American Court were seeking to use human rights for economic and political gain. To this communiqué followed various editorial opinions in the media known as aligned with the government where the representatives of the victims which participated in the Court’ hearing were single out as conspirator against the regime[334].

343. The Commission recommends that the Government foster a culture of human rights in which the role of human rights defenders in guaranteeing democracy and the rule of law in society is recognized. Public officials should refrain from making statements that stigmatize human rights defenders or that suggest that human rights organizations operate improperly or illegally, merely because of their work promoting and protecting human rights.

3. Restrictions on access to international financing

344. The Commission has been informed that the State has imposed restrictions on the operation of human rights organizations by making it impossible for them to gain access to resources provided through international cooperation.[335] This prohibition, in a context in which financing for civil society organizations in Latin America and the Caribbean generally comes from foreign cooperation, in fact makes it impossible for organizations working in the area of human rights to operate. In previous reports, the Commission has referred to judicial measures that unlawfully restrict the work of organizations by preventing them from participating in public matters, based on their having received funds from international cooperation.[336]

345. In 2005, the Commission received more reports indicating that criminal proceedings were being instituted against several human rights organizations in retaliation for having raised and executed funds from foreign cooperation.[337] Those charges, according to available information, have been made in keeping with provisions of the Criminal Code, whose vague and imprecise content violates the principle of legality and makes it possible to consider any conduct criminal.

346. Specifically, human rights defenders have noted that Article 132 of the Criminal Code is being used to criminalize organizations’ foreign financing.[338] Through this provision, several members of human rights organizations are currently being investigated for the crime of requesting foreign intervention in Venezuela’s domestic political affairs, because they raised money for the legitimate exercise of constitutionally and internationally recognized rights exercising and societal efforts to keep tabs on the State, and fostering political participation.

347. The Commission recalls that the punitive power of the State and its justice organs should not be used to harass those who are engaged in legitimate activities. States have the duty to investigate those who violate the law in their territory, but they also have the duty to take all measures necessary to prevent state investigations from being used to submit to unfair or unfounded trials persons who legitimately call for respect for and protection of human rights.

4. Instituting criminal actions to the detriment of the work of human rights defenders

348. The Commission has also received reports of criminal proceedings being instituted against human rights defenders on charges of defamation, libel, and conspiracy. According to what was reported to the Commission, such proceedings are brought for the purpose of hindering the work of human rights defenders. The Commission received information that indicates that the prosecutors from the Public Ministry in charge of those investigations have committed procedural irregularities that limit the defense of the accused, including restrictions on access to the terms of the indictments and the discretional blocking of the production of evidence. In particular, it is noted that in the proceedings instituted against human rights defenders, the actions of the prosecutorial authorities are always aimed at shifting the burden of proof to the accused, contrary to the principle of the presumption of innocence.[339]

349. The Commission has also learned of judicial proceedings and steps supposedly aimed at carrying out international measures of protection, by which the burden of proof is shifted, and they end up being used against the beneficiaries of such measures. Threats and acts of harassment such as phone threats and being followed are very difficult to prove, which could lead to the authorities initiating criminal inquiries against the defenders on charges of simulation of a criminal act. The Commission was informed that these measures, in addition to seeking to subordinate international rulings to domestic law, are aimed at getting human rights defenders to assume the role of being the ones to lodge the complaints, which, given Venezuela’s system of criminal procedure, shifts the burden of proof to them, requiring them to prove that the facts they allege are true.[340]

350. For the IACHR, the pronouncement by the Twenty-ninth Court illustrates the that it is ill-advised to submit the decisions of international human rights organs to the review and decision of domestic judicial organs, and therefore it urges that this judicial interpretation be recognized as that which is most compatible with international law and the American Convention, as indicated in the introductory section of this chapter.

351. The Commission reiterates that the failure to implement effectively and in good faith the measures of protection granted by the organs of the inter-American system increases the risk to these persons, which in turn weakens democracy and the rule of law. In addition, the Commission is concerned that cases of violence and harassment targeting human rights defenders, even though criminal inquiries have been instituted, have remained in total impunity to date.