Washington, D.C., May 16, 2016

 

Luis Almagro Lemes  

Secretary General

Organization of American States

Washington, D.C.

 

Dear Mr. Almagro,

I am writing to share with you Human Rights Watch’s views on applying the Inter-American Democratic Charter to Venezuela.

In light of the Venezuelan government’s egregious violation of the principle of separation of powers and the independence of the judiciary—manifest most recently in the re-packing of the country’s Supreme Court—we respectfully urge you to implement the mechanisms established in the charter for responding to threats to the democratic order in a member state. Specifically, we urge you to request the immediate convocation of the OAS’ Permanent Council to undertake a collective assessment of the situation in Venezuela and press for the restoration of judicial independence in the country.

The Venezuelan government has claimed that the OAS cannot invoke the charter to address the situation in Venezuela without the government’s consent. If this were true, such a requirement would defeat one of the central purposes the charter, which is to allow the OAS to respond when governments impair the democratic order within their own countries. Allowing such governments to determine when the charter can be applied would be to virtually guarantee it never will be.

But the Venezuelan government’s interpretation lacks legal basis. The charter makes perfectly clear in article 20 that the OAS can act without the consent of the government concerned to address “an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order.” The Inter-American Court of Human Rights has stated that judicial independence and the separation of powers are essential components of the democratic order that the OAS is mandated to protect by the charter. And authoritative interpretations by the Inter-American Juridical Committee and the OAS Secretariat for Legal Affairs make clear that situations like the one we are witnessing in Venezuela—where the judiciary has ceased to function as an independent branch of government—warrant an active response by the OAS, with or without the consent of the Venezuelan government.

 

Lack of Judicial Independence in Venezuela

One of the key principles enshrined in the charter is that an essential component of representative democracy is “the separation of powers and independence of the branches of government.”[1] Today in Venezuela no such separation of powers exists, and this has helped fuel an array of serious abuses that have gone unchecked.

In 2004, after the pro-government majority in the National Assembly increased the number of Supreme Court justices from 20 to 32 and packed the court with staunch political allies of the government, Human Rights Watch said that the crisis facing the Venezuelan judiciary threatened to have a profoundly negative effect on the country’s democracy. At the time, we called on the OAS secretary general to use his authority under article 18 of the charter—which requires the member state’s consent—to engage with the Venezuelan government to address the threats to its judicial independence that affected the country’s democratic system of government.[2]

Since the political takeover of the Supreme Court in 2004, the Venezuelan judiciary has ceased to function as an independent branch of government. Members of the Supreme Court have openly rejected the principle of separation of powers and publicly pledged their commitment to advancing the government’s “Bolivarian Revolution.” The court as a whole has routinely ruled in favor of the government when its actions were challenged, validating its growing disregard for human rights. Lower court judges—a majority of whom do not have security of tenure—are themselves susceptible to political pressure. Many appear unwilling to rule against government interests in sensitive cases, even when this means failing to uphold human rights.

Venezuelan authorities have repeatedly exploited the justice system’s lack of independence to arrest and prosecute prominent political opponents on dubious charges. For example, in March 2014, the Supreme Court summarily tried and sentenced two opposition mayors to 12 and 10-and-a-half months in prison, respectively. The court found the mayors in contempt of a Supreme Court injunction that purported to ensure that people not participating in the demonstrations could move around freely in their municipalities during the 2014 anti-government protests. The Supreme Court convicted the men immediately after proceedings that lasted no more than 7 hours. The Supreme Court’s rulings, in this case the court of first instance, are not subject to appeal, which violates the due process right of defendants to appeal a criminal conviction.[3]

In September 2015, a court convicted Leopoldo López, an opposition leader, and sentenced him to more than 13 years in prison for crimes that include “public incitement” to commit crimes during a demonstration in Caracas in February 2014. During Lopez’s trial, the prosecution failed to provide any credible evidence linking him to a crime, and the presiding judge, who is a provisional judge and lacks security of tenure, had not allowed Lopez’s lawyers to present evidence in his defense. In October, one of the prosecutors in that case fled Venezuela and claimed the prosecution had been a “farce.” The Supreme Court rejected all appeals filed by López.[4]

In addition, authorities have also routinely brought or threatened to bring charges against lesser-known critics—including, for example, a medical doctor who criticized shortages of medicines on television, an engineer who criticized government policies that regulate access to electricity in a newspaper, and a businessman who criticized on television the government’s economic policies.[5]

Moreover, impunity for human rights violations in Venezuela —including cases of brutal repression against anti-government protesters in 2014, and widespread allegations of abuse against low-income and immigrant communities during public security operations conducted nationwide since July 2015— is the norm. A common denominator in these cases is that the victims—or their families— have nowhere to turn for protection. In a country without judicial independence, victims have no access to justice, nor can they count on prompt and impartial investigations that would help prevent abuses.

Most recently, at the end of December 2015, government supporters in the National Assembly re-packed the Supreme Court with ruling party supporters, just days before opposition legislators who had won the December 6, 2015 legislative elections took office. They appointed 13 permanent justices and 21 substitute ones, including 13 who had requested their early retirement in October 2015, reportedly a year before their terms ended, apparently in order to ensure that they would be replaced by allies of the government. Justices serve 12 year terms, so it may be many years before there is another opportunity to restore its political independence.

The impact of this move is already being felt. Since the new National Assembly legislators took office in January 2016, the Supreme Court has issued a series of rulings undermining the role of the opposition-led National Assembly, limiting its ability to meaningfully act as the country’s legislative branch.[6]

 

OAS Precedent Applying the Charter to Address Lack of Judicial Independence

In 2005, the OAS applied the charter after the Ecuadorean Congress arbitrarily dismissed all Supreme Court justices and members of other high courts in the country.[7] The situation in Ecuador in 2004, in which Supreme Court justices were removed in a single action by the legislature, is different from the situation in Venezuela in 2016, in which the independence of the judiciary has been deeply eroded by a series of actions by the executive and the previous pro-government majority in the legislature acting in concert, but the underlying concern regarding the lack of separation of powers that moved the OAS and the Inter-American human rights system to act then is every bit as urgent with regard to Venezuela today.

In Ecuador, the OAS’ implementation of the charter consisted of sending a mission to Ecuador that met with a wide array of political, judicial, and civil society actors. It then drafted a report outlining its concerns regarding the threat to democratic order in the country. The mission that went to Ecuador found that:

The judiciary – and its composition, performance, and autonomy – was affected by the constant conflicts between the other two branches of government and different political players. It has been, and still is, responsible for major decisions that affect the country’s political and economic life. Control over this branch of government and securing influence over its component judges and magistrates led to the politicization of its decisions which, in turn, served to trigger various political crises.[8]

The report recommended that Ecuador find “consensus on a definitive and amply legitimated formula guaranteeing appropriate integration of the judiciary and other jurisdictional organs, free from the vagaries of party politics and conflicting vested interests; while, in the meantime, agreeing on a temporary solution to the problem of integrating the Supreme Court of Justice.”[9] In November 2005, after an open selection process closely monitored by the international community, a new Supreme Court took office.

Although in the Ecuadorean case, the government requested the OAS intervention, requiring the government’s consent is not necessary for the OAS to apply the charter, as explained in the last section of this letter.

At the time of the OAS report on Ecuador, the Inter-American Commission on Human Rights also included Ecuador in Chapter IV of its annual report, a section that only covers the countries with the most serious human rights problems in the region. The Commission held, citing the charter, that “the full operation of the legitimately constituted branches of government, without any impairment of their independence, and in balance with the other branches, is an indispensable requirement for a democratic system.”[10]

In 2013, the Inter-American Court of Human Rights adopted a binding ruling on the case of the dismissed Ecuadorean Supreme Court justices, in which it interpreted the importance of judicial independence for democracy.[11] The Inter-American Court ruled that:

[T]he State must guarantee the independent exercise of the judiciary, both in its institutional aspect, that is, in terms of the judicial branch as a system, and in its individual aspect, that is, in relation to a particular individual judge. The Court deems it pertinent to point out that the objective dimension is related to essential aspects for the Rule of Law, such as the principle of separation of powers, and the important role played by the judiciary in a democracy. Consequently, this objective dimension transcends the figure of the judge and collectively affects society as a whole.[12]

The Inter-American Court concluded that “the arbitrary dismissal of the entire Supreme Court constituted an attack on judicial independence, disrupted the democratic order and the Rule of Law and implied that there was no real separation of powers at that time…”[13] Citing article 3 of the charter, which mentions that essential elements of a representative democracy include the separation and independence of branches of government, the court held:

[T]he dismissal of all the members of the Supreme Court of Justice implied the destabilization of the democratic order existing in Ecuador at the time, because a rupture occurred in the separation and independence of the branches of government when an attack was made on Ecuador’s three high courts at that time. This Court emphasizes that the separation of powers is closely associated, not only with the consolidation of the democratic system, but also seeks to preserve the freedoms and human rights of citizens.[14]

 

The OAS Should Apply the Charter Even Absent Venezuela’s Consent

Given the Venezuelan government’s inability or unwillingness to recognize and address the profound damage to democratic institutions and the rule of law its policies and practices have caused, it is extremely unlikely that Venezuela will consent to the application of the charter. In fact, the government has already rejected the idea, arguing that doing so would violate Venezuela’s sovereignty and interfere with its internal affairs.[15]

Under articles 19 and 20 of the Inter-American Democratic Charter, however, the OAS secretary general or any other member state may convoke a Permanent Council meeting without the government’s consent to evaluate if there is an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state.”[16]

Although these articles have been invoked in the past to address situations that amounted to a coup d’etat—such as the coup in Honduras in 2009—authoritative interpretations of the charter indicate that not only such situations justify invoking these articles of the charter. According to the OAS Secretariat for Legal Affairs, an “alteration” occurs when essential elements and components of the democratic order—including the separation of powers and independence of the branches of government—are affected. The secretariat specifically held that this “alteration” is different from an “interruption of the democratic order,” which arises more clearly when “there is no government.”[17]

Similarly, the Inter-American Juridical Committee included in its 2015 annual report a special report on the Inter-American Democratic Charter that states that “serious threats to and interruptions of democratic order extend beyond coup d’état.” The report states:

[T]he Inter-American Democratic Charter moves beyond the idea of electoral democracy and unambiguously espouses the concept of democracy as democratic in both origin and practice and that to be regarded as democratic a government must not only be democratically elected but also govern democratically, with full respect for the rights of all. The [charter] cannot be regarded as a mechanism for responding solely to the traditional coup d’état consisting of the violent usurpation of political power, completely interrupting any and all semblance of democratic order; instead it must also be regarded as a mechanism for responding to abuses of democracy where the democratically elected governments are themselves undermining the institutions of democratic government and violating human rights [emphasis added].[18]

In these cases, the fact that a government does not consent to the application of the charter is no excuse not to act. The charter states that representative democracy is indispensable for the stability, peace, and development of the region, and governments have an obligation to promote and defend it.[19] The collapse of judicial independence in Venezuela and the resulting spread of human rights abuses and impunity implicate the most basic principles enshrined in the charter and other regional agreements. It is time to put this discussion on the table, and make the Venezuelan government accountable to the OAS for the dramatic erosion of the rule of law in the country.

I hope that the information included in this letter contributes to your assessment of the precarious human rights situation in Venezuela, and to a rigorous assessment by the OAS Permanent Council on how best to press the Venezuelan government to address it.

Sincerely,

José Miguel Vivanco
Human Rights Watch

 

[1] Inter-American Democratic Charter, http://oas.org/charter/docs/resolution1_en_p4.htm (accessed May 12, 2016), art. 3.

[2] Human Rights Watch, Rigging the Rule of Law: Judicial Independence Under Siege in Venezuela, June 2004, https://www.hrw.org/reports/2004/venezuela0604/6.htm#_Toc75153616.

[3] Human Rights Watch, “Venezuela: Letter to Pope Francis,” June 5, 2016, https://www.hrw.org/news/2015/06/05/venezuela-letter-pope-francis .

[4] Human Rights Watch, “Venezuela: Opposition Leader Unjustly Convicted,” September 10, 2015, https://www.hrw.org/news/2015/09/10/venezuela-opposition-leader-unjustly-convicted .

[5] Human Rights Watch, “Critics Under Threat,” August 6, 2015, https://www.hrw.org/news/2015/08/06/venezuela-critics-under-threat.  

[6] Human Rights Watch, “Upholding Abuse in Venezuela,” April 14, 2016, https://www.hrw.org/news/2016/04/14/upholding-abuse-venezuela .

[7] In November 2004, after opposition legislators attempted to impeach President Lucio Gutiérrez, who was accused of embezzlement of public funds, Gutiérrez managed to block the impeachment through his legislators in Congress, and began an “irregular process of restructuring the judiciary,” according to the Inter-American Commission on Human Rights. Without following formal constitutional requirements, Congress dismissed judges of the Constitutional Court and the Supreme Electoral Tribunal, arguing that they had been illegally appointed, and subsequently dismissed all Supreme Court justices, stating that their appointments had been temporary and thus had expired in January 2003. On December 1, 2004, the dismissed Constitutional Court judges were subjected to an impeachment trial, and Congress acquitted them. On December 8, 2004, Congress appointed new members to the Constitutional Court, the Supreme Electoral Tribunal, and the Supreme Court. In April 2005, the new Supreme Court dismissed cases against former government officials, including one against former President Bucaram Ortiz, who returned to the country a day after the ruling. These decisions sparkled large anti-government demonstrations, which were met with repression, and led to a presidential decree declaring a state of emergency in Quito. The decree also dismissed the Supreme Court members who were elected in December 2004, and days later Congress dissolved the Supreme Court of Justice. After the president of Congress (an ally of Lucio Gutiérrez) was removed from office, the new leadership in Congress removed Gutiérrez from office as president of Ecuador. The new president, Alfredo Palacios, requested the application of the Democratic Charter and OAS support to address the crisis Ecuador was facing. Inter-American Commission on Human Rights, “Annual Report of the Inter-American Human Rights Commission on Human Rights 2005,” February 2006, http://www.cidh.org/annualrep/2005eng/chap.4b.htm (accessed May 12, 2016), paras. 137 – 160.

[8] OAS Permanent Council, “Report to the Permanent Council on the Situation in Ecuador, OAS Mission to Ecuador, April 26 to 30, 2005,” CP/doc.4028/05, May 20, 2005.

[9] Ibid.

[10] Inter-American Commission on Human Rights, “Annual Report of the Inter-American Human Rights Commission on Human Rights 2005,” para. 127.

[11] Inter-American Court of Human Rights, Case of the Supreme Court of Justice (Quintana Coello et al.) v Ecuador, Judgement of August 23, 2013.

[12] Ibid., para. 154.

[13] Ibid., para. 178.

[14] Ibid., para. 179.

[15] Ministry of the Popular Power of Foreign Affairs, “What is behind the interest of invoking the Inter-American Democratic Charter against Venezuela?,” n.d.; “Special meeting of the Permanent Council, May 5, 2016,” YouTube clip video, published on May 6, 2016 by OAS Videos, https://www.youtube.com/watch?v=safRiTf2hAA (accessed May 12, 2016).

[16] Inter-American Democratic Charter, arts. 19 and 20.

[17] Report by the Secretariat for Legal Affairs, “Legal Considerations for Invoking the Inter-American Democratic Charter,” OEA/Ser.G CP/INF.7394/16, May 5, 2016, para. 4.

[18] Annual Report of the Inter-American Juridical Committee to the General Assembly 2015, OEA/Ser.Q. CJI/doc.495/15, September 8, 2015, p. 110.

[19] Inter-American Democratic Charter, preamble and art. 1.