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Venezuela's Implementation of the International Covenant on Civil and Political Rights
CCPR/C/VEN/98/3, Consideration of report of States parties due in 1993, Venezuela
Human Rights Watch welcomes this opportunity to submit information to the Human Rights Committee regarding Venezuela's implementation of the International Covenant on Civil and Political Rights. We wish to draw the Committee's attention to certain deficiencies in Venezuela's application of the Covenant, based on our monitoring of human rights conditions in that country over the past several years, including through a research visit to the country in January 2001.
In considering Venezuela's third periodic report on the implementation of the Covenant, the Committee should note that Venezuela's new Constitution came into force in December 1999, some seventeen months after the government's report was written. The new Constitution has important implications for the protection of human rights. For this reason we have divided this memorandum into two parts. The first part deals with those human rights issues that have been of long-standing concern to Human Rights Watch, relating to the Covenant's Article 6 (right to life), Article 7 (torture), and Article 10 (prison conditions). These problems are also addressed in Venezuela's report to the Committee. The second part deals specifically with problem areas in the new Constitution or in its application. These relate primarily to the Covenant's Article 14 (fair trial), Article 22 (freedom of association), Article 19 (freedom of expression), and Article 25 (political rights).
II. Long-standing concerns relating to violations of Articles 6, 7, and 10:
The most serious human rights violations in Venezuela arise in the context of the country's extremely high crime rate. Last year, levels of criminal violence increased notably (upwards of 9,000 homicides in 2000, with 241 occurring during the three-day Christmas break in December). The failure of the criminal justice system to adequately address the problem has been accompanied by a spiraling breakdown in public respect for the law, and mob lynchings have become increasingly common (eleven cases were reported during the first week of January 2001). Over the last decade, gross abuses by the police, including extrajudicial executions, the excessive use of lethal force, arbitrary arrests, and torture, have become pervasive and common.
1. Violations of Article 6 (the right to life)
Each year scores of criminal suspects are shot and killed during police raids on poor urban neighborhoods, in circumstances indicating that they were victims of extrajudicial executions or excessive use of force. Last year, Venezuelan human rights groups recorded 116 alleged extrajudicial executions by (in order of numbers recorded) Caracas' Metropolitan Police, the Technical Branch of the Judicial Police, state police forces in the states of Zulia, Anzoátegui, Carabobo, Aragua, Miranda, Bolívar, and the National Guard. This was the second highest annual total recorded since 1988, and was significantly above the average recorded during the last decade.
The Venezuelan government acknowledges in its report both that such abuses occur and that they are of the utmost gravity. Yet, both the police and the courts continue to fail to ensure that such incidents are properly investigated and that those officers responsible for committing extrajudicial executions or other serious abuses are brought to justice and/or disciplined. The information provided by the government (para. 63 of the third periodic report) is vague and lacks specificity regarding convictions of police officers responsible for such unlawful deaths. We fear, in fact, that police officers can commit abuses with virtual impunity and that this contributes to a pervasive culture and climate of official abuse. We are particularly concerned that, despite the elimination of the much-criticized pretrial inquiry known as "nudo hecho" (which had to be completed before a criminal investigation of abuses by public officials could even begin), there has been no improvement in the speed or effectiveness of official investigations into police abuses.
The Support Group for Justice and Peace, a Venezuelan human rights group that assists relatives of victims of extrajudicial executions in pursuing justice in the courts, followed thirty such cases over the past year. It reports that the prosecutor responsible for the cases has yet to decide whether or not to prosecute three cases that were identified more than one year ago. The same organization reported that four police officers were convicted of committing human rights abuses last year, but all their cases had been in the courts for five years or more. The introduction of the new Organic Code of Criminal Procedure (COPP), in July 1999, does not appear to have improved the speed or efficiency of official investigations in such cases.
The whereabouts or fate of four persons detained by the Parachute Regiment and the political police, known as the DISIP, during combined military and police operations in the state of Vargas in December 1999 remain unknown. The Ombudsman reported that there were sixty extrajudicial executions of suspected looters and criminals that month, a time when there was serious flooding in the province. The four who "disappeared" - Marco Antonio Monasterio Pérez, Oscar José Blanco Romero, José Francisco Rivas Fernández and Roberto Javier Hernández Paz - were detained during this period but have not been seen since.
The courts have rejected habeas corpus writs lodged on behalf of the four, though they have confirmed the arrests of Monasterio and Blanco, who were detained on December 21 by the Parachute Regiment and handed over on the same day to the DISIP. DISIP, however, said it had no record of having received them.
2. Violations of Article 7 (the right to be free from torture, or cruel, inhuman or degrading treatment or punishment)
Cases of torture and ill-treatment of criminal suspects in police or military custody continue to occur, although the incidence has declined since the mid-1990s. Venezuelan nongovernmental human rights organizations reported a further, welcome reduction in the number of reported cases of torture in the period from October 1999 to September 2000. The COPP, which reduces the frequency and duration of pretrial detention, and invalidates extrajudicial confessions as trial evidence, therefore appears to have had a positive impact in reducing torture and ill-treatment of detainees. The reforms introduced in the COPP are a praiseworthy response to recommendations made by, among others, the Special Rapporteur on Torture in his 1996 report on Venezuela.
Yet, although torture is prohibited in the new Venezuelan Constitution, it is not yet specifically included as a crime in the current Criminal Code. The Special Rapporteur has recommended that legislation be passed to remedy this deficiency. Venezuela's report makes reference to such legislation (para. 94 of the state's report), stating that a proposal will be sent to the legislature in 1998. The Fourth Transitory Provision of the 1999 Constitution states that the National Assembly will approve new legislation on torture and its eradication within a year of the installation of the National Assembly. So far, however, although drafts are under discussion in committee, a formal proposal to criminalize torture has yet to be presented to the National Assembly, which completes its first year of sessions in August 2001.
3. Violations of Article 10 (humane treatment of those deprived of their liberty)
Although the Venezuelan authorities have long recognized that the country's prisons are wracked by anarchy, violence, and inhumane treatment (paragraphs 186-190 of the state report), it has yet to take the necessary measures to bring conditions into line with international standards.
In 1997, Human Rights Watch published a major report, Punishment Before Trial: Prison Conditions in Venezuela. The serious problems described in that report, including, most notably, chronic and uncontrolled inmate-on-inmate violence, have yet to be addressed. According to the Ministry of Justice's Office of Regulation and Control of the Penitentiary System, during 1997 there were 188 deaths by stabbing, 134 deaths by gunfire, and 1,438 persons wounded by stabbing and gunfire in Venezuela's prisons. According to the Minister of the Interior and Justice (the new name of the combined ministry), during the first nine months of 1999, 298 prisoners died in violent incidents and 1,394 were seriously injured, mostly at the hands of other inmates. Between October 1999 and September 2000, 338 deaths and 1,255 serious injuries were reported in the prisons. These figures show little significant change, and are among the highest in the continent.
Venezuelan inmates have easy access to guns, knives, and home-made weapons; drug-trafficking is rife, and prison staff are few. As a result, prison gangs dispute control among themselves; corruption of guards for favors and privileges is the norm; sexual abuse and killings are common, particularly of prisoners held for sexual crimes or crimes against children. Such incidents generally go unreported and unpunished.
There has been a significant reduction in prison overcrowding, however, due to a reduction in the number of unsentenced inmates (who made up 70 percent of the prison population at the time of our 1997 report). During the last two years, thousands of prisoners awaiting trial have been released in accordance with the requirements of the COPP. As a result, the total prison population dropped from around 32,000 in July 1999 to some 15,160 at the end of 2000.
However, pretrial detainees across the country held violent prison protests in mid-1999 when the COPP was not immediately implemented in full after its formal entry into force. In October 1999, the National Constituent Assembly, in coordination with the judicial and prison authorities, announced a "Prison Emergency Plan" that speeded up the release of unconvicted prisoners. This emergency plan, however, indirectly fuelled widespread criticism of the COPP because administrative chaos resulted in the release into the community of a number of potentially dangerous criminals. Indeed, Venezuelan human rights groups are concerned that the new code of criminal procedural has become a political scapegoat for law enforcement problems that arose out of the failure to institute secure and effective mechanisms for its implementation. Worryingly, the continuing high level of crime has led to proposals to reintroduce some of the abusive practices - such as arrest on mere suspicion and prolonged pretrial detention - that the COPP was designed to eliminate.
III. Problem areas in the new Constitution and its application
The Constitution of the Bolivarian Republic of Venezuela entered into effect on December 30, 1999, following a national referendum. Its forty-two articles on human rights include some of the most advanced in the hemisphere. For example, under Article 45, the crime of enforced "disappearance" is explicitly prohibited, and any officials ordered to commit this offense are obliged to denounce their superiors to the authorities. In addition, Article 55 restricts the use of lethal force by police in accordance with the norms of necessity and proportionality; Article 68 bars the use of firearms and toxic weapons in policing demonstrations; Articles 280-283 establish a Human Rights Ombudsman; Article 23 accords human rights treaty obligations constitutional status and obliges the courts to apply them, if necessary in preference to domestic laws; and Article 31 guarantees the right to seek justice or protection from an international human rights body.
Nonetheless, the Constitution has some weaknesses in human rights protection, and there remain important inconsistencies between it and existing laws. Finally, with regard to some issues, particularly those involving political rights, the government and the courts have failed to abide by its requirements.
1. Violations of Article 14 (the right to a fair and public hearing by a competent, independent and impartial tribunal established by law)
Article 261 of the new Constitution states that "the commission of common crimes, violations of human rights and crimes against humanity shall be judged by ordinary tribunals. The competence of military tribunals is limited to crimes of a military nature." Until the introduction of this provision, jurisdiction over the prosecution of human rights abuses committed by members of the military and the National Guard (such as prison massacres) was often assumed by military tribunals, which did not offer sufficient guarantees of independence and impartiality.
By restricting the jurisdiction of military courts to crimes of a military nature, Article 261 does not, at least in peacetime, permit the trial of civilians in military courts. This new rule, however, was not readily accepted by the Venezuelan armed forces. On January 7, 2001, Pablo Aure Sánchez, a civilian and a law professor, was detained by members of military intelligence following an investigation by the Third Military Prosecutor into a letter critical of the armed forces that he published in the newspaper El Nacional. Aure was accused of defaming the armed forces, a crime codified in the Organic Code of Military Justice. The Minister of Defense insisted that the armed forces retain jurisdiction over the case, even though the Foreign Minister, the Attorney General, and the Human Rights Ombudsman all expressed the view that the case should be heard by the ordinary courts. On February 2, the Supreme Tribunal of Justice upheld this view and ordered the case transferred to a civilian court. The Aure case indicates that the military criminal code needs urgent revision to ensure that it is consistent with the new Constitution.
2. Violations of Article 22 (freedom of association and the right to form trade unions)
Article 52 of the new Constitution states that "every person shall have to right to associate for licit purposes in accordance with the law. The State is obliged to facilitate the exercise of this right." Yet the Constitution carves out an explicit exception to this rule that covers judges. According to the second paragraph of Article 256: "judges may not associate amongst themselves." On February 23, 2000, the International Congress of the Latin American Federation of Magistrates (Federación Latinoamericana de Magistrados, FLAM) passed a motion finding that "this deprivation of the right of association implies a denial of fundamental rights that gravely affects the rule of law in the Republic of Venezuela."
Article 95 of the new Constitution establishes the right of workers to form trade unions without any distinction or prior authorization, and states that trade unions "are not subject to intervention, suspension or administrative dissolution." The election of trade union leaders is by universal, direct and secret ballot. Those who abuse trade union positions for their own financial interest will be punished according to the law. Article 96 protects the right of collective bargaining.
Despite this constitutional provision, however, the Venezuelan government held a national referendum on trade union reform on December 3, 2000. Voters were urged by the government to support the immediate suspension of the leaders of the country's main trade union confederations, and their replacement in elections to be held within 180 days, under a statute to be written by the National Electoral Council. This proposal violated, among other norms, Article 3 of the 87th Convention of the International Labor Organization, which states that the public authorities must abstain from intervention in union elections and administration. It drew protests from the International Confederation of Free Trade Unions (ICFTU), and in late November 2000 ILO Secretary General Juan Somavía wrote to the National Electoral Council asking that the referendum be canceled. The government disregarded these appeals.
On November 28, the Constitutional Chamber of the Supreme Court rejected a writ lodged by trade union representatives and civil rights organizations to nullify the referendum on constitutional grounds, without giving an audience to the plaintiffs. Among the provisions of the new Constitution violated by the referendum was Article 23, which gives constitutional status and precedence over domestic law to human rights treaties and conventions, and requires courts to apply them "immediately and directly."
3. Violations of Article 19 (freedom of expression)
Article 57 of the Constitution protects everyone's right "to express freely their thoughts, ideas and opinions aloud, in writing or through any other form of expression, and to make use of any medium of communication or diffusion, without any censorship." Article 58, however, has provoked widespread concern among advocates of freedom of expression by giving every person "the right to opportune, true and impartial information." This clause, if codified in legislation regulating the press, could potentially lead to censorship or legal reprisals against media, including journalists, that publish information deemed by the authorities not to be impartial, to be inopportune or untrue. Clearly, any such law would constitute a serious threat to media freedom and limit significantly the media's ability to act as a "watchdog" of the public interest. Fortunately, no such steps have been taken to date. Indeed, the Venezuelan media reflect a wide range of political opinions, many of them highly critical of the government. Nevertheless, the existence of this constitutional provision remains a potential threat to press freedom and, as such, it should be repealed.
Human Rights Watch calls on the Committee to: