It has been 10 years since Hugo Chávez was elected president of Venezuela and set out to overhaul the country's largely discredited political system. His first major achievement, the enactment of a new constitution in 1999, offered an extraordinary opportunity for the country to shore up the rule of law and strengthen the protection of human rights. The 1999 Constitution significantly expanded human rights guarantees by, among other things, granting Venezuela's international rights obligations precedence over domestic law. It also created a new Supreme Court and sought to provide this court with the institutional independence it would need to serve as the ultimate guarantor of these fundamental rights.
But this historic opportunity has since been largely squandered. The most dramatic setback came in April 2002 when a coup d'état temporarily removed Chávez from office and replaced him with an unelected president who, in his first official act, dissolved the country's democratic institutions, suspending the legislature and disbanding the Supreme Court. Within 40 hours, the coup unraveled, Chávez returned to office, and the constitutional order was restored. But while this derailment of Venezuelan democracy lasted less than two days, it has haunted Venezuelan politics ever since, providing a pretext for a wide range of government policies that have undercut the human rights protections established in the 1999 Constitution.
Discrimination on political grounds has been a defining feature of the Chávez presidency. At times, the president himself has openly endorsed acts of discrimination. More generally, he has encouraged his subordinates to engage in discrimination by routinely denouncing his critics as anti-democratic conspirators and coup-mongers-regardless of whether or not they had any connection to the 2002 coup.
Another defining feature of the Chávez presidency has been an open disregard for the principle of separation of powers enshrined in the 1999 Constitution-and, specifically, the notion that an independent judiciary is indispensable for protecting fundamental rights. After the 2002 coup, the most damaging blow to the rule of law in Venezuela was the political takeover of the Supreme Court by Chávez and his supporters in 2004.
In the absence of credible judicial oversight, the Chávez government has engaged in often discriminatory policies that have undercut journalists' freedom of expression, workers' freedom of association, and civil society's ability to promote human rights in Venezuela.
This book examines the current state of Venezuelan democracy from a human rights perspective.It does not address all the pressing human rights issues facing the country today, many of which pre-date the Chávez presidency. Rather, it focuses on the impact that the Chávez government's policies have had on institutions that play key roles in ensuring that human rights are respected: the courts, the media, organized labor, and civil society.
The book's findings are based primarily on research that Human Rights Watch conducted during multiple visits to Venezuela between December 2006 and July 2008. It also draws on research carried out during previous visits dating back to 2002. While in Venezuela, Human Rights Watch conducted extensive interviews with government officials, judicial authorities, jurists, academics, human rights advocates, trade unionists, and journalists.
The Venezuelan government under President Chávez has tolerated, encouraged, and engaged in wide-ranging acts of discrimination against political opponents and critics. Chapter 2 documents how the government has:
- Fired and blacklisted political opponents from some state agencies and from the national oil company;
- Denied some citizens access to social programs based on their political opinions; and
- Discriminated against media outlets, labor unions, and civil society in response to legitimate criticism or political activity.
Chávez assumed the presidency in part on the promise to free Venezuela from its entrenched patterns of political exclusion. However, while his government has uprooted established networks of political patronage, it has replaced them with new forms of discrimination against its own critics and opponents.
While Chávez himself has at times recognized that discrimination is a problem and spoken out against it, his routine expressions of political intolerance have served to undergird the discriminatory actions of his supporters. On occasion, Chávez has openly advocated political discrimination against opponents, as when he publicly supported declarations by his energy minister that the state oil company would remove employees who did not support the president.
Human Rights Watch recommends that the Venezuelan government take concrete steps to end political discrimination. In particular, the president and other top officials should refrain from public statements that appear to endorse discrimination. The government should give clear instructions to all government officials explicitly prohibiting political discrimination in the hiring and firing of employees and in the access to government programs. It should also carry out prompt and thorough investigations into all credible allegations of politically motivated discrimination and sanction officials found to be responsible.
The government under President Chávez has effectively neutralized the judiciary as an independent branch of government. Chapter 3 documents how the president and his supporters carried out a political takeover of the Supreme Court in 2004, and how the court has since largely abdicated its role as a check on arbitrary state action and a guarantor of fundamental rights.
When Chávez first assumed the presidency, there was broad public support for his calls to clean up a judiciary that was dysfunctional and profoundly discredited. The 1999 Constitution created a new Supreme Court and sought to guarantee its integrity and independence. But in 2004 Chávez signed legislation that made it possible for his supporters in the National Assembly to both pack and purge the Supreme Court. The governing coalition implemented this court-packing legislation by filling the 12 new seats (in what had been a 20-member court) with political allies. This packed Supreme Court subsequently fired hundreds of lower court judges and appointed hundreds more.
Since this takeover occurred, the court's response to government measures that threaten fundamental rights has typically been one of passivity and acquiescence. It has failed, in particular, to counter assaults on the separation of powers, such as the 2004 court-packing law and, more recently, a 2007 constitutional reform package. It has also failed to safeguard fundamental rights in prominent cases involving the media and organized labor.
Human Rights Watch recommends that steps be taken to reverse the damage done by the 2004 court-packing law. After the next legislative elections in 2010, the new National Assembly should implement a one-time ratification process to legitimize the composition of the Court by, for example, requiring a two-thirds majority affirmation vote for each Supreme Court justice who has been appointed since the passage of the 2004 Supreme Court law. Measures should then be taken to permit the lawful removal of any justice who does not receive a two-thirds majority vote during this process. Any resulting vacancies should be filled through a selection process that is open, transparent, and ensures broadest possible political consensus. The legislature should also immediately repeal the 2004 provisions that allow justices to be removed by a simple majority vote.
The Venezuelan government under President Chávez has undermined freedom of expression through a variety of measures aimed at reshaping media content and control. Chapter 4 documents how the government has:
·Expanded the scope of insult laws, which punish disrespectful expression toward government officials, and toughened penalties for criminal defamation and libel;
·Expanded and toughened the penalties of vaguely defined "incitement" provisions that allow for the arbitrary suspension of TV and radio channels;
·Restricted public access to official information; and
·Abused the state's control of broadcasting frequencies to threaten and discriminate against stations with overtly critical programming.
Venezuela still enjoys a vibrant public debate, in which anti-government and pro-government media are equally vocal in their criticism and defense of Chávez. However, whereas Chávez faced an almost entirely hostile private media at the time of the 2002 coup, he has since significantly shifted the balance of the mass media in the government's favor. This shift has been accomplished, not by promoting more plural media, but by stacking the deck against critical opposition outlets while advancing state-funded media that represent the views only of Chávez's supporters.
By expanding and toughening the penalties for speech and broadcasting offenses, Chávez and his legislative supporters have strengthened the state's capacity to limit free speech and created powerful incentives for critics to engage in self-censorship. Journalists working for opposition media have borne the brunt of prosecutions under these laws in recent years, generating pressure on these media to tone down criticism. Should the government choose to utilize the expanded speech and broadcasting offenses more aggressively, the space for political debate in Venezuela could be severely curtailed.
One area where the government's media policy has produced positive results is broadcasting at the community level. The government has actively supported the creation of community radio and TV stations, whose broadcasting contribute to media pluralism and diversity in Venezuela.
Human Rights Watch recommends that the National Assembly repeal all existing legislation that contravenes international norms on freedom of expression, including insult laws, laws criminalizing defamation of public officials and institutions, and the overly broad incitement provisions of its broadcasting law. It should also pass legislation to implement the constitutional right of access to information held by public entities in an effective and non-discriminatory manner. In addition, after the next legislative elections in 2010, the National Assembly should establish a new state agency to administer broadcasting frequencies and enforce broadcasting laws. Steps should be taken to ensure that this new agency possesses the institutional autonomy that CONATEL is formally granted by law but lacks in practice.
The Venezuelan government under President Chávez has sought to remake the country's labor movement in ways that violate basic principles of freedom of association. Chapter 5 documents how the government has:
- Undermined workers' right to elect their representatives by requiring state oversight and certification of union elections;
- Denied the right to bargain collectively to unions which do not receive state approval of election results;
- Undermined workers' right to freely join the labor organization of their choosing by engaging in favoritism toward pro-government unions; and
- Undermined workers' right to strike by banning legitimate strike activity and engaging in mass reprisals against striking oil workers.
President Chávez and his allies have tried to justify these actions as part of a broader effort to "democratize" the labor movement by safeguarding workers' rights against allegedly corrupt and co-opted union leaders. However, firing workers who exercise their right to strike, denying workers their right to bargain collectively, and discriminating against workers because of their political beliefs does not promote union democracy.
Moreover, it is a central principle of the international law protecting workers' rights that states should not interfere in the internal affairs of unions, including their leadership elections. This prohibition-enshrined in the conventions of the International Labour Organization (ILO) to which Venezuela is a party-exists to prevent the political manipulation and state control that can often result from state interference in union affairs.
Through its systematic violation of workers' right to organize, the Chávez government has undercut established unions and favored new, parallel unions that support its political agenda. For example, it has denied established unions the right to bargain collectively until they hold state-certified elections-which have been delayed and even blocked by electoral authorities-while negotiating with new pro-Chávez unions exempt from electoral requirements. It has fired and blacklisted thousands of workers in the state oil company who engaged in legitimate strike activity, and later threatened to remove all remaining workers who did not support Chávez. And it has promoted the formation of alternative workers' organizations that could be used to suppress legitimate worker organizing, undermine existing unions, and circumvent the country's labor laws.
Human Rights Watch recommends that the government cease intervening in union affairs and engaging in political discrimination against workers. Specifically, the government should promote legislation to make state oversight and certification of union elections strictly optional (in the absence of a court order) and to eliminate political discretion in the choice of collective bargaining partners. It should also refrain from reprisals against workers engaged in legitimate strike activity and permit strikes grounded in economic and social policy demands, as required by international law. And it should amend existing and proposed legislation on alternative workers' associations to ensure that they are not used to subject organized labor to state control, block legitimate worker organizing, or evade national labor legislation.
The Venezuelan government under President Chávez has undermined its own ability to address the country's long-standing human rights problems through its aggressively adversarial approach to local rights advocates and civil society organizations. Chapter 6 documents how the government has:
- Subjected rights advocates to criminal investigations on groundless or grossly exaggerated charges;
- Sought to discredit and undermine rights organizations through unfounded allegations of complicity in subversion;
- Sought to exclude organizations receiving foreign funding from participation in international forums; and
- Promoted legislation that would allow arbitrary state interference in rights organizations' fundraising and operations.
President Chávez and his supporters have tried to justify these measures by arguing that rights advocates and civil society organizations were pursuing a partisan political agenda aimed at destabilizing the country and toppling President Chávez. Yet, while it is reasonable for a government to investigate and prosecute credible allegations of criminal activity, as well as to regulate foreign funding of civil society groups to promote greater transparency, these measures have gone beyond these legitimate forms of accountability and regulation.
Given the gravity of the human rights problems facing Venezuela, the government could greatly benefit from the expertise and input of the country's human rights advocates and organizations in developing and implementing needed reforms. Instead authorities have harassed and intimidated leading human rights advocates, marginalizing them from policy discussions. In one notable exception, the government incorporated civil society experts in a commission set up to analyze and make proposals to reform Venezuela's police forces. Unfortunately, however, the commission on police reform is merely the exception that proves the rule regarding the cost of the government's adversarial approach to Venezuelan civil society.
The Chávez government should abandon its aggressively adversarial posture toward local human rights defenders and civil society organizations. As the experience with police reform demonstrates, even in the midst of a polarized political situation, constructive engagement is possible and can contribute to finding solutions to the country's chronic human rights problems.
The Future of Venezuelan Democracy
The recommendations outlined in this book are fully consistent with the broader goal enshrined in the 1999 Constitution-and publicly espoused by the Chávez government-of promoting a more inclusive democracy in Venezuela. Indeed, Human Rights Watch believes that the recommended steps are prerequisites for any serious effort to pursue this vital and ambitious aim.
A country's citizens cannot participate fully and equally in its politics when their rights to freedom of expression and association are at risk. Ensuring these essential rights requires more than constitutional guarantees and political rhetoric. It requires institutions that are capable of countering and curbing abusive state practices. Above all, it requires a judiciary that is independent, competent, and credible. It is also critical that non-state institutions-such as the media, organized labor, and civil society-are free from government reprisals and political discrimination.
President Chávez has actively sought to project himself as a champion of democracy, not only in Venezuela, but throughout Latin America. Yet his professed commitment to this cause is belied by his government's willful disregard for the institutional guarantees and fundamental rights that make democratic participation possible. Venezuela will not achieve real and sustained progress toward strengthening its democracy-nor will it serve as a useful model for other countries in the region-so long as its government continues to flout the human rights principles enshrined in its own constitution.
Political discrimination has long plagued Venezuela. For decades, government patronage and spoils were divided along party lines at the expense of large sectors of Venezuelan society. Chávez assumed the presidency in part on the promise to free Venezuela from its entrenched patterns of political exclusion. While his government managed to uproot the established system of political discrimination, it has replaced it with new forms of discrimination against real and perceived political opponents.
The Chávez government proclaims a commitment to political inclusion, but has openly discriminated against those who do not share its views. Government officials have removed scores of detractors from the career civil service, purged dissident employees from the national oil company, denied citizens access to social programs based on their political opinions, and denounced critics as subversives deserving of discriminatory treatment. The Chávez administration's exclusion and harassment of those who voice their dissent belie its banner of democratic pluralism.
Political discrimination under Chávez was most pronounced in the aftermath of the 2004 recall referendum on Chávez's presidency. Citizens who exercised their right to call for the referendum-invoking one of the new participatory mechanisms championed by Chávez during the drafting of the 1999 Constitution-were threatened with retaliation and blacklisted from some government jobs and services. After denouncing the referendum effort as an act "against the country", Chávez requested that electoral authorities give legislator Luis Tascón a list of those who signed the referendum petition, which was made publicly available on the internet. The "Tascón list" and an even more detailed list of all Venezuelans' political affiliations-the "Maisanta program"-were then used by public authorities to target government opponents for political discrimination. (There were also reports that private sector employers utilized the lists to discriminate against Chávez supporters.)
In one prominent case from 2004, a government banking agency used the lists in compiling political profiles of its employees and then fired more than 80 employees deemed to be part of the political opposition. In a similar case shortly after the referendum, government officials refused to renew a contract with a cooperative that made school uniforms on the grounds that cooperative members had appeared on the Tascón list and thus did not "deserve" the benefits of the program.
Political discrimination has been openly endorsed and practiced in the oil industry, which is one of the country's largest sources of employment and the backbone of the national economy. After a two-month-long strike in December 2002, the government fired close to half of the workforce from the state oil company, Petróleos de Venezuela, S.A. (PDVSA), and blacklisted them from future employment in the oil sector. A month before the 2006 presidential election, the energy minister (who also serves as PDVSA president) boasted that the company had "removed 19,500 enemies of the country from the [oil] business" and would continue to do so, telling PDVSA employees that anyone who disagreed with the government "should give up their post to a Bolivarian." Although the minister issued a memo almost a year later proscribing political discrimination, there is credible evidence that the discriminatory mindset reflected in his initial remarks was also embodied in actual employment policies in some departments of PDVSA.
Political discrimination has been a recurring feature of the government's policies and actions in a wide variety of areas. Subsequent chapters of this report show how political discrimination has affected the media, organized labor, and civil society. The government has threatened opposition journalists and media outlets with criminal prosecution and termination of broadcasting licenses. It has favored the formation of new pro-government unions, while refusing to bargain collectively with those associated with the opposition. And it has also harassed prominent human rights advocates and NGOs critical of the government.
Government officials have attempted to defend acts of political discrimination as a necessity, either to contain a political opposition allegedly intent on overthrowing the government or to establish a government capable of undertaking a "revolutionary" project. One government minister called the 2004 recall referendum effort an act of "terrorism" and urged the dismissal of those not "committed to the revolutionary process." Other officials claimed that large groups of civil servants were political appointees who merited dismissal for having signed petitions calling for the referendum.
Chávez himself has sent mixed messages regarding political discrimination. At times he has recognized that discrimination is a problem and spoken out against it. For example, he directed employers to "bury" the Tascón list due to reports he received of employment discrimination (although he waited a full year after the list's implementation to do so). He also promoted a constitutional reform proposal to explicitly bar discrimination based on political orientation.
Yet Chávez has also at times openly advocated political discrimination against opponents of the "revolution." For example, after his energy minister told PDVSA workers they should give up their jobs if they were not Chávez supporters, Chávez publicly defended this openly discriminatory message and called on all oil workers who were not committed to the "revolution" to abandon their jobs and "go to Miami." Such expressions of political intolerance have served to undergird the discriminatory treatment applied by his supporters.
Political Discrimination under International Law
Discrimination against individuals for exercising democratic rights is proscribed under international law. Under Article 2 of the International Covenant on Civil and Political Rights (ICCPR), states must respect and ensure the rights recognized in the covenant "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status" (emphasis added). Although race and gender discrimination have occupied the attention of the international community, the ICCPR makes no distinction, in terms of gravity, between these different manifestations of discrimination.
International law specifically bars discrimination in public sector employment. Article 25c of the ICCPR requires that "every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions, to have access on general terms of equality to public service in his country." In its general comment on this article, the Human Rights Committee noted that to ensure equal access, "the criteria and processes for appointment, promotion, suspension and dismissal in public service positions must be objective and reasonable." Governments that bar entry to their opponents or fire those already in government jobs solely because of their political opinions would be in violation of their obligations under Articles 2 and 25.
The Human Rights Committee has stressed that "the principle of access to public service on general terms of equality implies that the State has a duty to ensure that it does not discriminate against anyone. This principle is all the more applicable to persons employed in the public service and to those who have been dismissed."
International labor standards, specifically Convention 111 of the International Labour Organization (ILO), also prohibit discrimination on the basis of political opinion in access to jobs and in terms and conditions of employment.
It is generally accepted that governments may apply political criteria in recruiting decision-makers at the top levels of public administration, and most governments do so. But these political appointments must be clearly defined and limited in nature so as to prevent abuse. It is a different matter when career civil servants are hired or dismissed in blanket fashion solely because of their presumed political views, whether such discrimination operates by law or occurs informally.
The Inter-American Commission on Human Rights has expressed concern about political discrimination in Venezuela. As it wrote in its 2005 report:
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.
Political Discrimination under Venezuelan Law
Venezuela gives constitutional rank to international human rights treaties; as such, no domestic laws can violate the international proscription on political discrimination described above. In addition, the 1999 Constitution expressly prohibits "political discrimination" in employment. Finally, and more broadly, it bars "any discrimination with the intent or effect of nullifying or encroaching upon the recognition, enjoyment or exercise, on equal terms, of the rights and liberties of every individual." Given that discriminatory actions based on political belief frequently result in a diminution of other rights, this broader prohibition can be read to provide general protections against political discrimination.
Political Patronage and Discrimination Before Chávez
Political discrimination is not new to Venezuela. For at least 30 years before Chávez's election, political allegiance was the passport to jobs in the public sector, as well as government contracts and services. Patronage-the provision of benefits, jobs, and services to those with party connections in exchange for political loyalty-was a pervasive feature of the power-sharing agreement between political parties known as the Punto Fijo pact.
The Punto Fijo pact was based on a system of political accommodation and a division of state jobs, contracts, and spoils between the two dominant political parties. As Human Rights Watch noted in a report published in 1993, "jobs in the public sector were allocated with calculated discrimination through the political parties, forming an important element in the stream of patronage descending from the top of each party to its bases throughout the nation."
The main losers of the political arrangement were the millions of poor Venezuelans outside the public sector of the economy. Many of these voters supported Chávez in 1998, partially with the hope of bringing an end to the corruption and exclusion of the Punto Fijo era.
The old system of patronage was largely uprooted with Chávez's election, which ended the dominance of the two main political parties. Beginning in 2003, the Chávez government launched a series of "missions" that delivered social services directly to the poor, circumventing existing state institutions that had been criticized for distributing aid based on political criteria. Yet while the Chávez government replaced the old, discriminatory system for allocating public jobs and services, it has replaced it with new forms of exclusion based on political loyalty.
Blacklisting: The "Tascón List" and "Maisanta Program"
Two lists have been key instruments for giving effect to political discrimination under Chávez: the "Tascón list" and the "Maisanta program." While ostensibly designed for legitimate electoral purposes, several high-ranking government officials encouraged or threatened to use the lists to retaliate against those identified as critical of the government. In the aftermath of a contentious 2004 referendum to recall Chávez from the presidency, some government officials blacklisted those who called for the removal of Chávez from government jobs, contracts, and services.
Chávez encouraged holding those who signed the petition for a recall referendum on his mandate "accountable" for their decision, although he stopped short of endorsing political discrimination. In October 2003, Chávez insinuated that there might be future uses of the petition: "Those who sign against Chávez, in truth are not signing against Chávez. They will be signing against the country…. They will be recorded in history, because [the CNE] will have to register their name, their surname, their signature, their ID, and their fingerprints."
In January 2004, Chávez wrote to then-CNE president Francisco Carrasquero to inform him that he had authorized his campaign manager, Congressman Luis Tascón, to obtain copies of the forms with over three million signatures in support of the recall referendum from the CNE. Chávez announced on television that he intended to use the list to expose what he claimed were bogus signatures. Having obtained the election forms, Tascón posted the list of names on his website so that any individual was able to consult the "Tascón list," ostensibly to verify their signature.
The creation of a list of those who signed for the recall referendum was not objectionable in itself. By supporting the call for a referendum, citizens were not voting in an election or even expressing a political preference. The petition for a recall referendum was a matter of public record in which the publication of signatures could increase the transparency of the process. What was impermissible was the use of the list to discriminate against signers.
Several high-ranking government officials explicitly threatened retaliation against signers. In one prominent expression of support for political discrimination, then-Health Minister Roger Capella, told members of the press in March 2004 that health workers and doctors who had signed the recall referendum would be fired because to sign the petition was "an act of terrorism." Capella added that "the only doctors who will work in the country's hospitals will be comrade medics committed to the revolutionary process." On the following day, Capella rectified his comments, stating that they had a "personal connotation" and that discrimination on political grounds is unconstitutional. Nonetheless, given that Capella made his initial statements in a public forum, speaking as a government official, they could not be easily retracted or lightly forgotten.
In another example of the political pressure placed on public sector employees, then-PDVSA President Alí Rodríguez warned of potential firings in the oil company for signing for the referendum, saying that "it wouldn't surprise me" if workers who signed the referendum petition were fired from their jobs. Some PDVSA employees later reported to the press that they had been fired and, when they asked for the reason, they were told it was because they had signed the referendum petition.
Over a year after ordering the creation of the Tascón list, Chávez himself acknowledged the discriminatory purposes for which the list had been used. In April 2005, having won the referendum, Chávez called on employers to archive and "bury" the list on public television:
It was a moment that we've put behind us. If one of us who has to take a personal decision about someone goes to consult the list, what they are doing is dragging past situations into the present, and helping to recreate them … the famous list certainly fulfilled a useful role at a given moment, but that moment has passed.
We're asking the whole country to build bridges. I say this because I've been receiving some letters-of all the papers I receive-that make me think that in some spaces they still have the Tascón list on the table to decide whether somebody is going to work or is not going to work. Bury the Tascón list!
Chávez almost certainly knew in 2004 of allegations that government departments were using the Tascón list to fire workers and block job applications. In fact, according to the state radio station, Tascón said in April 2004 that he had spoken to Chávez personally about cases of discrimination by both anti-Chávez private employers and pro-Chávez government institutions and urged Chávez to halt the continuing abuse of the list.Nonetheless, it took Chávez over a year from his first order to compile the list-in which time, as noted above, several high-ranking government officials endorsed the use of political discrimination-to give clear instructions that the information should not be used for discriminatory purposes.
Following Chávez's statements, the Attorney General's Office opened an investigation in April 2005 to determine if private employers or public institutions used the Tascón list to discriminate against those who signed in favor of a recall referendum. However, to our knowledge, no convictions resulted.
Moreover, Chávez's call to "bury" the Tascón list did not end political discrimination. While his announcement was welcome, some supporters responded by developing more sophisticated tools with which to discriminate. During the 2005 congressional elections, pro-Chávez campaigners designed a database known as the "Maisanta program". Unlike the Tascón list, which contained only the names of those who had signed for the recall referendum, the Maisanta program contained detailed information on all registered voters, totaling over 12 million citizens. It informed the user if voters had signed the recall referendum against Chávez, abstained in earlier elections, participated in the government's missions, and signed the counter-petition for a recall referendum against opposition legislators.
The designers of the Maisanta program justified the program as an effort to democratize access to information. The database could indeed prove useful for campaign purposes. However, like the Tascón list, the Maisanta software was used for more than just electoral ends.
Hundreds of allegations emerged starting in 2004 and 2005 that government officials in different branches of public administration were using the Tascón list, the Maisanta program, or both, to fire and screen applicants for government jobs and programs. Even Tascón acknowledged that there were cases of "people who were not given documents, who faced delays in completing paperwork, and who were denied the ability to work" because they signed for the referendum.
The vast majority of allegations of political discrimination were leveled by members of the opposition against government ministries and agencies, according to the nonpartisan Venezuelan human rights NGO, PROVEA. However, there were also reports of political discrimination against Chávez supporters in lower levels of public administration, state and municipal governments, and the private sector.
In most cases, it was not possible to prove political discrimination-with rare exceptions, citizens were given no grounds at all for the actions taken-yet many were told informally that they were losing their jobs, contracts, or services for having signed the referendum petition. For example, in one case reported to Human Rights Watch, a 98-year-old woman was denied medicines that she had long received from a state development agency because, as her family was told by the program secretary, she had signed the referendum petition.
Human Rights Watch documented several representative cases, detailed below, in which government officials employed the Tascón list or Maisanta program to target individuals for discriminatory actions.
Fund for the Guarantee of Deposits and Banking Protection
Among the cases of alleged politically motivated firings, one of the most prominent was the dismissal of more than 80 civil servants from a government banking agency, the Fund for the Guarantee of Deposits and Banking Protection (Fondo de Garantías de Depósitos y Protección Bancaria, FOGADE), in 2004. All the fired employees reportedly had been named as members of the political opposition on a list, based in part on the Tascón list, circulated within the agency. While the workers were fired without explanation, the president of the agency openly stated that the employees were being dismissed to make way for those "that adhered to the government project."
According to former employees, in May 2004 a group of FOGADE employees who belonged to a Bolivarian Circle-a type of grassroots political group supported and funded by the government-along with a senior official in the human resources department, created and circulated a list of the political affiliations of FOGADE's more than five hundred employees. Alongside each name was a handwritten number indicating the employee's political profile based on perceived political inclinations-ranging from "1" for a hard-line Chavista to "6" for "radical political opposition"-and an initial noting whether the employee had signed the petition for the recall referendum based on the Tascón list.
The president of FOGADE, Jesús Caldera Infante, seemed to endorse the use of the list to purge the organization of government opponents, stating in a television interview that, "The revolution touched the soul and essence of FOGADE and … we are going to carry out the necessary changes." In June 2004, Caldera Infante announced on television that numerous employees, "many of whom had held their positions for over 19 years," had been dismissed because they "came from a culture that did not conform to the project envisioned by the Constitution for socioeconomic development" and that they would be substituted with officials "that adhered to the government project." Eighty FOGADE staff members had lost their jobs by August 2004, and, according to former employees, they all had been ranked as government opponents on the list.
Among the dismissed employees was Yadira Pérez, a secretary who had worked for FOGADE for 11 years until she was fired in June 2004. Pérez had signed for the recall referendum. Pérez told Human Rights Watch that her dismissal notice stated that her job qualified as a political appointment, allowing FOGADE to fire her without cause. However, Pérez was long considered a career civil servant and decided to fight her case in court.
FOGADE claimed that the firings were legally permissible because all the employees held political appointments from which they could be fired without explanation, and even for political reasons. An administrative decree from the president of FOGADE, shortly prior to the firings, established that all bank employees were political appointees because they handled sensitive information. "They are 'at will' [libre nombramiento y remoción] employees so we fired them at will," Caldera Infante explained.
The court would eventually determine that the FOGADE employees were civil servants, and that the administrative order violated constitutional provisions protecting civil servants against politically motivated or arbitrary dismissals. The court ordered Pérez and several other FOGADE employees reinstated.
National Council of Frontiers (CNF)
In another case that suggests politically motivated discrimination, an employee at the National Council of Frontiers (Consejo Nacional de Fronteras, CNF) was told by her boss that she and three other employees had been fired solely because they signed for the recall referendum.
Since 1996, Rocío San Miguel had worked as a contract employee and legal counsel to the CNF, a government agency attached to the office of the vice-president. Four of the council's 22 employees-Magally Chang, Jorge Guerra, Thais Peña Rocío, and San Miguel-were fired on March 22, 2004. The dismissal letters gave no reasons for their termination.
San Miguel discovered that of the CNF's 22 employees only she and the other three who were fired were listed as having signed the referendum petition. One of the employees, Guerra, was eventually allowed to keep his job, after he insisted his ID card had been fraudulently used and that he would withdraw his name from the petition.
After receiving her dismissal letter, San Miguel told Human Rights Watch that her supervisor explained to her in a telephone conversation that she was a political appointee and therefore was being dismissed for "showing disloyalty" by signing the petition for the recall referendum. But San Miguel was in fact a contract employee, not a political appointee. While the council had the right not to renew her annual contract-though it had chosen to do so for eight years-her political beliefs should not have factored into any decision about her continued employment.
National Electoral Council (CNE)
Political discrimination has also extended to unpaid public service positions. In the months prior to the recall referendum, the National Electoral Council (Consejo Nacional Electoral, CNE) dismissed volunteer members of municipal electoral councils, explicitly stating in dismissal letters that they were removed for having signed the recall referendum petition. The council members were citizens fulfilling their assigned civic duties, only to find their ability to render their services contingent on their political opinions.
Local electoral boards (juntas municipales electorales) are composed of unpaid citizens who are selected by public lottery to assist with elections as part of their duties as voting citizens.
Human Rights Watch interviewed one former member of these boards, Jorge Luis Suárez, who had served as president of the municipal electoral board of El Hatillo, a middle-class municipality of Caracas. Suárez, a lawyer, was selected by lottery to serve on the board to oversee the recall referendum in February 2004. But just days prior to the referendum, on August 11, 2004, Suárez received a letter from the regional director of the CNE informing him that the CNE had decided to "replace as members of the municipal electoral boards all those who signed [petitions calling] for a referendum on the presidency [or for a referendum against opposition] deputies of the National Assembly; accordingly it has resolved to replace you in your capacity as principal member of said electoral board." The letter cited a CNE resolution to this effect, dated July 30, 2004.
Suárez told Human Rights Watch that four out of five members of the El Hatillo electoral board received similar discharge letters from the CNE. All four had signed for the referendum to recall President Chávez; the fifth member had not signed it.
According to Suárez, the municipal board members were replaced by government supporters handpicked by the CNE just days prior to the referendum, although Venezuelan law requires that municipal board members be selected by public lottery at least two months prior to a referendum. Suárez said that when he went to retrieve his personal belongings from the municipal office, the new members-all dressed in red, the color of the government-would not let him in.
Suárez told Human Rights Watch that he had never received a copy of the CNE resolution referred to in his discharge letter, but he knew of municipal board members in other districts who were also dismissed for having signed for the recall referendum against President Chávez. Suárez did not know of any cases of municipal board members dismissed for having signed a simultaneous counter-petition for recall referenda against legislators belonging to opposition parties.
Former vice-president of the CNE, Ezequiel Zamora, told Human Rights Watch that the resolution was applied nationwide, but that only those who signed the petition to recall President Chávez were dismissed. Human Rights Watch was unable to find any cases of individuals suspended for signing for the referendum to recall opposition legislators.
Even if the CNE resolution had been applied evenhandedly, it would have been improper: the exclusion of citizens from civic service because of their political beliefs violates the basic guarantees of equality and freedom of opinion essential to democratic government. Leaving aside the question of whether a signature in support of a recall referendum is a statement of political opinion, political belief should not be a disqualification for civic service.
Single Social Fund (FUS) and Fund for Microfinanced Development
The Tascón list was also applied to allocate government contracts. In one case from 2004, a cooperative lost an important government contract because, according to a letter from the government agency responsible for the contract, the cooperative's directors had signed the referendum petition and thus did not "deserve" the benefits of the contract.
The Single Social Fund (Fondo Único Social, FUS), a government agency that administers social development projects, had bought school uniforms from Coprotene, a cooperative in the state of Nueva Esparta, since 2001. In 2004, FUS decided not to renew the annual contract. According to a letter from the president of the Nueva Esparta division of FUS, Coprotene was denied the contract to give an opportunity to cooperatives "truly committed to the revolutionary process and followers of our maximum leader President Hugo Rafael Chávez Frías."
The letter pointed out that FUS had checked the "signature status" of Coprotene's members and discovered "to its great surprise" that one of Coprotene's representatives, as well as her husband and the cooperative's treasurer, had all signed against Chávez. According to the FUS letter:
DUE [the school uniform program] depends strictly on the president of the republic and if they signed against the president, they cannot now claim to deserve the benefits of a program that they themselves wanted to eliminate through the signatures. As such, with a resounding "NO," we said that Coprotene cannot participate in the DUE Program, nor can any other cooperatives or microenterprises that have shown their willingness to remove the top leader of the Bolivarian revolution, our President Hugo Rafael Chávez Frías.
The discriminatory use of the Tascón list appears to have been practiced by other state agencies as well. María Isabel Graciani, a former employee at the Fund for Microfinanced Development (Fondo del Desarrollo de la Microempresa, FONDEMI), a government development agency that provides small loans to cooperatives and social projects, told Human Rights Watch that she received orders from her superiors to use the Tascón list to weed out applications for loans, but that she refused to apply the list.
Discrimination in PDVSA
Political discrimination has been openly practiced in the state oil company, PDVSA. PDVSA fired more than 18,000 employees who participated in a two-month-long strike in 2002 in a mass reprisal for legitimate strike activity. (The oil strike and mass firing are analyzed in detail in chapter 6.) In following years, the government used participation in the strike much like it used participation in the recall referendum effort: to identify targets for discriminatory treatment. PDVSA blacklisted the dismissed employees from future employment in the oil sector as well as in its subsidiaries and contractors. The energy minister and Chávez suggested that all of the company's workers must support the government or leave. There is credible evidence that the discriminatory mindset reflected in these public statements also was embodied in actual employment policies in some departments of PDVSA.
Blacklisting Oil Strikers
In the aftermath of the oil strike, PDVSA purged its ranks of thousands of workers who participated in the strike. The government justified the mass firings by arguing that the workers' sole objective was "to overthrow the President." When the ILO reviewed the case, however, it determined that reasons for the work stoppage included worker demands relating to government economic policies and it therefore fell within the scope of legitimate trade union activity. The ILO concluded that the mass dismissal of thousands of workers and refusal to rehire them constituted reprisals in violation of international law.
For several years after the strike, the government blacklisted the fired workers from employment in the oil sector. PDVSA wrote a letter to its subsidiaries and contractors, warning them not to hire the dismissed workers. In one letter sent in May 2005 to senior officials of contracting companies operating in the Orinoco Belt, the PDVSA official responsible for hiring workers in allied companies pointed out that PDVSA maintained a policy "of not contracting people responsible for conduct against the interests of the company during the events of December 2002 [the oil strike]." Another contractor, the Cypriot Hanseatic Shipping Company, allegedly received a similar letter from PDVSA in 2003 specifically mentioning that 168 employees had participated in the oil strike and could no longer be employed by the shipping company.
PDVSA's hiring guidelines from July 2007 (which are still in force, to the best of our knowledge) stipulated that an applicant who is in the company's database as "the author of an action under investigation-the oil stoppage" is "unsuitable" for hiring. PDVSA also reportedly circulated lists of names of dismissed employees that should not be rehired.
Some officials suggested that blacklisting striking workers was appropriate as a way of promoting accountability for crimes. As Labor Minister Roberto Hernández later explained, the government fired and refused to rehire thousands of oil workers because "those were 23,000 criminals." Such an approach might have been reasonable had it been limited to specific individuals facing well-substantiated charges of criminal activity who were then investigated and prosecuted with appropriate due process guarantees. Instead, the company applied the policy to exclude any employee who participated in the strike and therefore presumably opposed the government. Chávez himself publicly denounced these workers as "traitors" and declared that Venezuela could "not afford the luxury of having such people in PDVSA."
A "Revolutionary" Workforce
The allegedly subversive actions of the striking oil workers were used to encourage political discrimination within PDVSA. Both the energy minister and Chávez himself made clear that workers at PDVSA must support the "Bolivarian process," and employment policies in some departments of the company appeared to follow these government statements.
One month before the December 2006 presidential election, Energy Minister and president of PDVSA Rafael Ramírez gave a speech to PDVSA employees, which was clandestinely filmed and later broadcast on television, in which he told workers that those who did not support Chávez should leave the company:
PDVSA is red, red, from top to bottom…. Let no one be left with even a grain of doubt that the new PDVSA is with President Chávez…. it is a crime, a counter-revolutionary act for anyone here from management to try to suppress or cool the political expression of our workers in support of President Chávez. We are going to do everything necessary to support our president. Whoever feels uncomfortable with this [word indistinct] should give up their post to a Bolivarian."
In the speech, Ramírez made clear to workers that this was not merely an idle threat. Referring to the mass dismissals that followed the oil strike, he told them: "Our pulse won't falter. We removed 19,500 enemies of the country from this business and we are ready to go on doing it."
For his part, President Chávez, rather than refute the overtly discriminatory message, publicly endorsed it on national TV, calling on his energy minister to repeat it "100 times," and declaring that "PDVSA workers are part of this revolution, and whoever is not should go somewhere else, go to Miami."
The statements of Rodríguez and Chávez were applied in at least some divisions of the company. In one case, the electric distribution division of PDVSA established a strategy to force political opponents out of PDVSA, according to internal company documents provided to Human Rights Watch by former employees. In a meeting on October 16, 2006, division managers agreed to drive out critics of the Chávez government. The minutes of the meeting describe the agreement: "All individuals (from leaders down) that are not identified with the process will be assigned to irrelevant activities, overtime will be eliminated for them and they will be taken out of activities on Saturday and Sunday. Those who are not with Chávez must not be in PDVSA."
One PDVSA subsidiary, Sincor, reportedly maintained a list of employees divided into "suitable" and "unsuitable" categories based on their political views. The newspaper Tal Cual reported that Sincor fired four young contract workers in 2007 because they were considered politically "unsuitable." The press office of Total, the French multinational that partially owns Sincor, seemed to acknowledge there were problems, stating in response to Tal Cual's inquiry about the company's employment policies and the dismissal of the four contract workers: "[A]s [Sincor's] procedures could create operating risks, we are working with PDVSA to limit the consequences of this internal process and we hope that it will cease and that the people will be reincorporated."
Official encouragement of political discrimination also has led companies that work with PDVSA and need to gain government contracts to engage in political discrimination. In a job announcement in October 2007, Trical de Venezuela, C.A., a private company that manufactures industrial products and sells materials to PDVSA and other state companies, did so explicitly. Trical specified the political orientation it was looking for in prospective hires as follows: "Preferably not identified as from the opposition. Not present on public lists at odds with the Government. Preferably sympathetic to the Bolivarian Government."
A year after Ramírez's remarks that PDVSA must be "red, red,"-perhaps under pressure from Total and other companies to reinstate meritocratic hiring practices-Ramírez appeared to acknowledge that discriminatory employment practices were being used in PDVSA and called for them to end. Ramírez sent a memo to PDVSA managers on July 31, 2007, expressly prohibiting the use of discriminatory "lists":
In no case may general lists be applied which have no relevance to the hiring in progress and which do not justify the exclusion and/or disqualification of the applicant or provider…. The present resolution revokes any internal norm, resolution or decision that contradicts it and will be applied preferentially in all cases.
While the affirmation of non-discrimination in employment represented a positive step forward for PDVSA, the specific mention of the need for current norms to supersede past practices also appears to confirm that the lists had indeed been in circulation and applied to hiring policies in some branches of the company.
Discrimination in Other Areas
Political discrimination has underpinned and tarnished the government's actions in a wide variety of areas. As subsequent chapters of this report document, political discrimination has affected government decisions with respect to the media, organized labor, and civil society. Legitimate criticism has been used by some government officials as the basis for excluding dissident voices from the airwaves, collective contract negotiations, and civil society meetings.
The Chávez government has punished media outlets for their criticism of the government. As we document in chapter 5, the government has also threatened legal action or administrative sanctions against opposition stations, and blocked applications by a station critical of the government for frequencies to extend its coverage.
In the most notorious case, the government refused to renew the license of the opposition television station RCTV in May 2007 because of its obstinate refusal to soften its editorial line. While the decision was nominally justified by the need to use the RCTV frequency to set up a new public channel, the government had other frequencies at its disposal and at the time had renewed the licenses of channels that supported the government or had moderated their criticism.
Labor unions which fall into disfavor with the government have faced obstacles to collective bargaining. As we document in chapter 6, contrary to international law on the right to association in particular as it relates to trade unions, the government has denied established unions the right to bargain collectively until they hold state-supervised leadership elections. At the same time, the government has negotiated with new, pro-government unions, which are exempt from electoral requirements when first formed.
Government officials have also made unfounded accusations against civil society organizations and harassed human rights defenders because of their real or alleged political positions. As we document in chapter 7, during the Chávez presidency rights advocates have faced prosecutorial harassment, public denunciations, discriminatory efforts to exclude them from international forums, and efforts to restrict their access to international funding.
The Venezuelan government should take active steps to prevent political discrimination. In particular, the executive branch should implement a "zero tolerance" policy with regard to politically based discrimination. Specifically, it should:
- Issue clear and unequivocal directives to all government agencies prohibiting all forms of political discrimination in the hiring and firing of employees and in the provision of public services;
- Ensure that effective mechanisms and procedures exist to receive and respond to complaints of political discrimination; and
- Conduct rigorous investigations into all credible allegations of political discrimination and, when appropriate, sanction those responsible in a timely fashion.
In view of the government's past support for political discrimination in the hiring and firing of PDVSA employees, it is particularly important that this "zero tolerance" policy be implemented immediately by the Ministry of Energy. It addition, the PDVSA should:
- Allow former employees dismissed for their participation in the strike of 2002, who were not convicted of criminal behavior during the strike, to compete for job opportunities in PDVSA and its subsidiaries.
If there was a single point on which most Venezuelans were in full agreement when Chávez first took office, it was the need to overhaul the country's judiciary. Decades of rampant corruption and political meddling had left Venezuela's justice system dysfunctional and profoundly discredited. As a result, Chávez's call for drastic measures to clean up the courts enjoyed support from even his most ardent critics.
The enactment of the 1999 Constitution provided an opportunity for Venezuela to salvage its judicial branch. The constitution created a new Supreme Court and established essential protections for judicial independence, such as the requirement of a two-thirds majority vote of the National Assembly to impeach a justice. It thus laid the groundwork for the judiciary to fulfill its essential role as guarantor of the rule of law and protector of basic rights.
Unfortunately, however, the Chávez government has since abandoned this commitment to judicial independence. In 2004, displeased with a series of controversial judicial rulings, the president and his supporters in the National Assembly launched a political takeover of the Supreme Court. They enacted a new law expanding the court from 20 to 32 members. Since the law allowed the legislature to select new members by simple majority vote, this meant the governing coalition was able to use its then slim majority in the National Assembly to obtain an overwhelming majority of seats on the court. (At the time the court was believed to be evenly divided between Chávez allies and critics.) The law also gave the National Assembly the power to remove justices from the bench with a simple majority vote rather than the two-thirds majority required by the 1999 Constitution. The law, in short, made it possible for the governing coalition to both pack and purge the country's highest court.
Chávez supporters attempted to justify the law as a response to efforts by some government opponents to subvert the rule of law. They claimed, in particular, that Supreme Court justices who opposed Chávez had been disregarding the dictates of the law and deciding cases to advance the opposition's political agenda.
It is certainly true that some members of the opposition had subverted the rule of law during the 2002 coup. It might also be true that some judges had allowed their political convictions to unduly influence their application of the law. But if so, the appropriate response would have been to pursue measures aimed at limiting such political interference and promoting judicial independence. Instead, Chávez and his allies chose to rig the system to favor their own interests.
Within weeks of the law's enactment, the three Supreme Court justices responsible for the rulings that had most angered the Chávez camp were gone from the bench. In December 2004 the governing coalition in the National Assembly filled their vacancies, as well as the 12 new seats, with political allies. Over the next few years, this packed Supreme Court fired hundreds of lower court judges and appointed hundreds more to permanent judgeships.
The political takeover of the Supreme Court effectively neutralized the judiciary as an independent branch of government. The packed court has largely abdicated its role as a check on arbitrary state action. When the Chávez government has pursued measures that undermine human rights protections, the court's response has typically been one of passivity and acquiescence. It has failed, in particular, to counter assaults on the separation of powers, such as the 2004 court-packing law and, more recently, a 2007 constitutional reform package. It has also failed to safeguard fundamental rights in prominent cases involving the media and organized labor.
International Norms on Judicial Independence
The OAS and the Inter-American Democratic Charter
Democracy is indispensable for human rights, and an independent judiciary is indispensable for democracy. The 34 foreign ministers of the Organization of American States (OAS) recognized these propositions when they adopted the Inter-American Democratic Charter in 2001. The Charter defines the "[e]ssential elements of representative democracy" to include "access to and the exercise of power in accordance with the rule of law" and "the separation of powers and independence of the branches of government."
The Inter-American Commission on Human Rights emphasized this link between judicial independence and democratic rule of law in its 2003 report on Venezuela:
The observance of rights and freedoms in a democracy requires a legal and institutional order in which the laws prevail over the will of the rulers, and in which there is judicial review of the constitutionality and legality of the acts of public power, i.e., it presupposes respect for the rule of law. Judiciaries are established to ensure compliance with laws; they are clearly the fundamental organs for preventing the abuse of power and protecting human rights. To fulfill this function, they must be independent and impartial.
International Human Rights Treaties
In addition to its commitment to democracy under the Inter-American Charter, Venezuela is party to human rights treaties-including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights-that require it to safeguard the independence and impartiality of its judiciary. The United Nations Human Rights Committee, that monitors the implementation of the ICCPR by states party, has ruled that for a tribunal to be "independent and impartial," the executive must not be able to control or direct the judiciary,judges "must not harbor preconceptions about the matter put before them, and … must not act in ways that promote the interests of one of the parties."
The practical safeguards that this obligation entails are set forth in a series of "basic principles" on the independence of the judiciary endorsed by the United Nations General Assembly. These principles include:
- The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats, or interferences, direct or indirect, from any quarter or for any reason.
- Any method of judicial selection shall safeguard against judicial appointments for improper motives.
- The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions, and the age of retirement shall be adequately secured by law.
- Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the conclusion of their term of office, where such exists.
- A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing….
- Judges shall be subject to suspension or removal only for reasons of incapacity or behavior that renders them unfit to discharge their duties.
- All disciplinary, suspension, or removal proceedings shall be determined in accordance with established standards of judicial conduct.
As this chapter shows, in the past several years, Venezuela has flouted all of these principles. In doing so, it has undermined its rule of law and degraded its democracy.
The Pre-Chávez Judiciary
When Chávez became president in 1999, he inherited a judiciary that had been plagued for years by influence-peddling, political interference, and, above all, corruption. In interviews with Human Rights Watch, lawyers from across the political spectrum described a system in which justice had often been for sale to the highest bidder. Former Attorney General Isaías Rodríguez recalled how the country's top administrative court in the past actually established set fees for resolving different kinds of cases.
A 1996 report on the Venezuelan justice system by the Lawyer's Committee for Human Rights painted a grim portrait of the judiciary:
Rather than serving the constitutional role of defender of the rule of law and protector of the human rights of Venezuelan citizens against the government, the courts had often become highly politicized adjuncts of the parties. They were manipulated by groups of lawyers, judges, political and business actors for private economic gain. And court procedures had become so slow, cumbersome and unreliable that disputants avoided them at all costs.
In terms of public credibility, the system was bankrupt. A 1998 survey by the United Nations Development Program found that only 0.8 percent of the population had confidence in the judiciary. That distrust translated into public outrage, and in the presidential election of that year, candidates across the political spectrum-including Hugo Chávez Frías-promised to clean up the system.
Reforming the Justice System
Once in office, President Chávez launched an ambitious effort to reform the Venezuelan state that included holding a referendum to convene a National Constituent Assembly, which then drafted a new constitution that went into effect in December 1999.
One of the first acts of the National Constituent Assembly was to declare, in August 1999, that the judiciary was in a state of emergency. It suspended the tenure of judges and created an emergency commission which it empowered to suspend judges who showed signs of wealth incommensurate with their salaried income, and to remove judges who, for example, had adopted decisions "manifestly disregarding the law." In the following months, the emergency commission removed hundreds of judges from their posts.
The 1999 Constitution created a new Supreme Court, with twenty seats, and established protections for judicial independence, such as the requirement of a two-thirds majority vote of the National Assembly to impeach a sitting justice. In March 2000, the Constituent Assembly selected 20 justices, with a nearly unanimous vote, to sit on the new court.
The new constitution also established that international human rights treaties ratified by Venezuela have precedence over domestic laws. Consequently, the new Supreme Court would have the authority as well as the responsibility to ensure that the government "immediately and directly applied" the rights set forth in those treaties.
Due to the overwhelming public consensus that judicial reform was needed, these measures to overhaul and strengthen the courts had broad support from across the political spectrum.
A Polarized Supreme Court
The consensus around the need to strengthen the judiciary largely dissolved as the country, including its Supreme Court, grew increasingly polarized during President Chávez's first term in office. This polarization intensified as a divided court delivered controversial rulings on issues that were central to the political struggle between the Chávez government and its opponents, including the 2002 coup and the 2004 recall referendum.
By early 2004, it was common wisdom within Venezuela's legal community that the 20-member Supreme Court was evenly divided between opponents and allies of President Chávez. Each camp controlled some of the court's six chambers. The opposition camp was said to have a majority of seats in the electoral chamber, while the pro-Chávez camp had a majority in the constitutional chamber, as well as on the six-member Judicial Commission that handles many of the court's administrative affairs. The court's president at the time, Iván Rincón Urdaneta, was considered to be an ally of President Chávez.
The first of the controversial rulings came in August 2002, four months after the attempted April 11 coup d'etat against President Chávez. A slim Supreme Court majority held that it did not have enough evidence to initiate a criminal investigation of four generals accused of participating in the coup. The ruling was adopted after the court had recused two pro-Chávez justices and appointed substitute justices to the panel hearing the case. The ruling immediately provoked expressions of outrage from Chávez and his supporters. And the following day, the Chavista majority in the National Assembly created a "Special Commission to Investigate the Crisis in the Judicial Branch regarding alleged irregularities committed by Supreme Court Justices", which a few months later recommended removing one justice, on grounds unrelated to the decision (see discussion below), and investigating another who participated in this decision.
The second explosive issue-the recall referendum to remove Chávez from office-produced an open confrontation within the Supreme Court. In March 2004, the National Electoral Council (Consejo Nacional Electoral, CNE) invalidated 876,017 of the 2,708,510 signatures that the opposition had obtained in favor of holding a recall referendum, leaving the opposition short of the number of signatures required to compel such a referendum. After a group of NGOs presented a constitutional challenge against CNE's decision, the Supreme Court's electoral chamber-with a majority of opposition judges-held that the signatures were valid and the referendum should be carried out. A week later, the constitutional chamber, composed of a pro-Chávez majority, decided that it had jurisdiction to review the electoral chamber's decision and overruled it. As a result, the opposition launched a new petition drive to obtain the number of signatures necessary to carry out the recall referendum.
The 2004 Court-Packing Law
In May 2004, President Chávez signed a law that severely undermined the independence of the country's judicial branch, just a day after the National Assembly had passed it. The new Organic Law of the Supreme Court (Ley Orgánica del Tribunal Supremo de Justicia, LOTSJ) fundamentally altered the composition of the country's highest court, as well as its relationship to the other branches of government.
Power to Pack the Court
The new court-packing law increased the Supreme Court from 20 to 32 justices, adding two justices to each of the court's six chambers. The new justices could be selected with a simple majority vote of the National Assembly: a nominee who failed to receive a two-thirds majority in the first three votes could be selected by a simple majority on the fourth vote. In contrast, the 20 existing justices of the Supreme Court had all received at least a two-thirds majority confirmation vote.
Some proponents of the law justified this increase as a measure for alleviating the justices' workload. This justification is dubious, at best. Four justices who were in office in 2004, as well as one ex-justice at the time, told Human Rights Watch that only two of the six chambers had any difficulty keeping up with their caseloads (the constitutional chamber and the "political administrative" chamber). According to Iván Rincón Urdaneta, who was then the court's president and considered a Chávez ally, the only justification for increasing the number of justices in the other chambers was to help them handle administrative tasks. However, it is not difficult to imagine other means to alleviate the administrative responsibilities of the justices, such as by having them delegate the work to their staff. Nor, for that matter, is it difficult to imagine ways to alleviate the caseload of those chambers with more cases, such as by assigning them more clerks or creating adjunct tribunals to handle cases in which the jurisprudence is already clearly established.
Whatever the justification, however, the impact of the increase in judges on the judiciary's independence was unmistakable. It allowed the governing coalition in the National Assembly, which at the time enjoyed a slim majority of seats, to radically alter the balance of power in the country's highest court, ensuring that each of its chambers was controlled by justices sympathetic to the government's political agenda.
Power to Purge the Court
Venezuela's 1999 Constitution seeks to guarantee the independence of justices by granting them a single 12-year term and establishing an impeachment process that requires a two-thirds majority vote by the National Assembly, after the "citizen branch"-which consists of the "Moral Council," composed of the attorney general, the ombudsman, and the comptroller-has determined that the justice has committed a "serious offense" (falta grave).
The 2004 law eliminated this guarantee. While the impeachment of justices still requires a two-thirds majority vote, the law creates two new mechanisms for removing justices, short of impeachment and without the need for a two-thirds majority. One entails suspending justices pending an impeachment vote, the other entails nullifying their appointments.
The first mechanism is found in a new provision which establishes that when the "citizen branch" determines that a justice has committed a serious offense, and unanimously recommends the justice's dismissal, then the justice will be automatically suspended pending an impeachment vote by the National Assembly. The law requires that the president of the assembly call for a hearing and an impeachment vote within 10 days. However, such deadlines are habitually disregarded by the assembly, and there is no effective mechanism for enforcing them. Consequently, if the president of the assembly chooses not to bring the issue to a vote, the justice could remain suspended indefinitely.
The definition of "serious offense" is broad and includes highly subjective categories such as "threaten or damage public ethics or administrative morale" and "made decisions that threaten or damage the interests of the Nation."
The National Assembly has also bestowed upon itself the power to "nullify" justices' appointments by a simple majority vote in one of three circumstances: the justice provided false information at the time of his or her selection to the court; the justice's "public attitude … undermines the majesty or prestige of the Supreme Court" or of any of its members; or the justice "undermines the functioning" of the judiciary.
This provision is a clear ploy to circumvent the constitutional requirement that justices must be removed with a two-thirds majority vote of the National Assembly. Calling this action the "nullification of appointment" cannot disguise the fact that it entails firing the justice.
What makes the provision particularly dangerous is the fact that two of the three criteria for "nullification" are entirely subjective and, therefore, allow the assembly's majority to target justices identified with the political opposition. In fact, at the time, a leading member of the National Assembly's pro-government coalition, Iris Varela, explicitly acknowledged this as the law's intent, saying "the 10 coup-backing justices (magistrados golpistas) who supported the de facto government of Pedro Carmona Estanga should be off the Supreme Court, and the new law passed in the National Assembly will achieve this goal."
Implementation of the Court-Packing Law
The new law provided the basis for a political takeover of the Supreme Court. Within weeks of its passage, the three justices responsible for the rulings most criticized by the Chávez camp were off the court. And, by the end of the year, pro-government members of the National Assembly had filled their seats, as well as the 12 new seats created by the law, with people known to be political allies.
The impact of this political takeover soon extended to the entire judiciary. The packed Supreme Court, in charge of appointing and removing lower court judges, significantly altered the composition of the judiciary.
Removal of Arrieche
Less than a month after the court-packing law was passed, the pro-government majority in the National Assembly used it to remove Franklin Arrieche Gutiérrez, the justice who had penned the Supreme Court's ruling on the 2002 coup. Instead of following the constitutional procedure to impeach the justice, which would have required a two-thirds majority, the National Assembly used the court-packing law, which allowed it to annul his designation with a simple majority vote.
The effort to remove Arrieche had begun the day after the court delivered the controversial ruling in August 2002. Outraged by the ruling, Chávez supporters in the National Assembly created a "Special Commission to Investigate the Crisis in the Judicial Branch regarding alleged Irregularities Committed by Supreme Court Justices." Four months later, the assembly voted to approve the commission's recommendation to annul Arrieche's appointment as Supreme Court justice.
The grounds for removal had nothing to do with the ruling on the coup. Instead, the commission based its recommendation on a finding that Arrieche had provided false information to the National Constituent Assembly when it appointed him to the court two years earlier. Specifically, while Arrieche claims he met the constitutional requirements to become a justice, the commission ruled that he did not.
Arrieche successfully appealed to the Supreme Court to block his removal, arguing that he had never been granted an opportunity to refute the allegations before the commission, and that that the removal violated the constitutional requirement of a two-thirds majority vote. The court issued a temporary injunction, blocking Arrieche's removal, while it decided his constitutional challenge. Two years later, the injunction remained in place-preserving Arrieche's position as a justice-as the court had yet to rule on the merits of the case.
In June 2004, a month after the National Assembly passed the court-packing law, the pro-government coalition used it to do what it had been unable to do two years earlier: remove Arrieche without a two-thirds majority vote. The coalition applied the provision of the new law that allows for the annulment of judicial appointments with a simple majority vote.
Arrieche again appealed to the Supreme Court. This time, however, the constitutional chamber rejected his petition, arguing that the National Assembly was merely applying the new law. The chamber inexplicably disregarded the fact that the removal of a justice without a two-thirds majority vote violates the 1999 Constitution and failed to consider that Arrieche's removal was incompatible with Venezuela's international human rights obligation to guarantee the independence of the judiciary.
A few months after Arrieche's removal, the constitutional chamber revoked the Supreme Court's decision on the April 11 coup that the justice had drafted in 2002.
Retirement of Martini and Hernández
In July 2004, a month after Arrieche's removal, two justices responsible for another Supreme Court ruling that had outraged the Chávez government left the court. Facing the risk of being indefinitely suspended as a consequence of the new law, Alberto Martini Urdaneta and Rafael Hernández Uzcátegui resigned from the court.
Martini had written and Hernández had signed the March 2004 electoral chamber ruling that overturned the National Electoral Council's invalidation of thousands of signatures calling for a recall referendum. (The third justice who signed the decision was a substitute justice filling in on that particular case.)
The ruling had generated a strong reaction from the government, including statements by then-Vice-President José Vicente Rangel, who held it was a "mafia-type and immoral" ruling issued by "perpetrators of a coup." Two days later, the "Moral Council" announced that it would investigate the justices' performance in this case. And, in June 2004, it decided that the justices had committed a "serious offense" and sent the cases to the National Assembly for it to decide whether or not to vote the justices off the court.
Facing the threat of an indefinite suspension as a consequence of the court-packing law, the two justices opted for retirement. Under the new law, justices accused by the "citizen branch" of committing a "serious offense" are indefinitely suspended from their positions until the National Assembly votes on whether or not to remove them from the court. According to Radio Nacional de Venezuela, an official radio station, the two judges requested their retirement in order to avoid the consequences of the sanction that the Moral Council would impose due to their participation in the ruling on the 2004 referendum. Two sources very close to the case confirmed this explanation to Human Rights Watch.
Packing the Court
In December 2004, the pro-Chávez majority in the National Assembly filled the 12 new seats created by the court-packing law, as well as five vacancies (which included the seats previously occupied by Arrieche, Martini, and Hernández). The assembly also appointed 32 substitute justices-who temporarily fill in for justices who are on leave or recused in a specific case-bringing the total to 49 appointees in one day.
Leaders of the congressional majority made it clear they were only appointing individuals who would not rule against the government. "This time we will not score own goals," declared Pedro Carreño, a pro-government congressman, immediately before the list of appointments was made public. "[I]n the list of potential candidates there is no one who will act against us."
Impact on Lower Court Judges
The impact of the court-packing law extended to the entire judiciary. Over the next several years, the newly packed Supreme Court would fire hundreds of judges and appoint hundreds more. This massive turnover of judges only compounded the damage already done to the credibility of Venezuela's judiciary.
Under Venezuelan law, the Supreme Court is responsible for the appointment and removal of all the country's lower court judges through a "Judicial Commission" made up of six justices. After the court-packing law was passed in May 2004, one of the law's principal sponsors, the prominent Chavista legislator Luis Velázquez Alvaray, was appointed by his colleagues in the National Assembly to fill one of the new seats on the Supreme Court. He was then was appointed by his colleagues in the packed court to serve as president of the Judicial Commission.
From that position, Velázquez Alvaray presided over the removal of 400 lower court judges from their posts. At the time, 80 percent of Venezuela's judges held provisional or temporary posts and therefore, under Venezuelan law, could be summarily fired. In addition, the Judicial Commission under Velázquez Alvaray appointed hundreds of permanent lower court judges.
In theory, one positive effect of the overhaul of the judiciary has been reducing the number of provisional and temporary judges. In 2004 only 20 percent of the country's 1732 judges held permanent appointments and enjoyed the rights established in the constitution. According to information provided by the Venezuelan government to the Inter-American Commission on Human Rights, as of December 2007 almost 1000 judges (or 54 percent) were tenured.
Unfortunately, however, the value of this development, in terms of strengthening the independence and credibility of the judiciary, is overshadowed by the fact that it was carried out by the Judicial Commission of a Supreme Court that was itself subject to a political takeover.
A Compliant Court
Since the political takeover of 2004, the Supreme Court has repeatedly failed to fulfill its role as a guarantor of the rule of law in the face of arbitrary state action. When President Chávez and his supporters in the National Assembly have pursued measures that undermine the protection of human rights, the Supreme Court's response has typically been one of passivity and acquiescence. The court has failed, in particular, to respond to assaults on the separation of powers, such as the 2004 court-packing law and the 2007 constitutional reform package.
On occasion, the court has issued rulings upholding human rights in discrete cases, but it has repeatedly failed to do so in the most prominent and politically sensitive cases of arbitrary state action by the Chávez government.
The 2004 Court-Packing Law
Shortly after Chávez signed the court-packing law, several prominent Venezuelan jurists filed petitions with the Supreme Court challenging its constitutionality. Among other issues, their petitions challenged new provisions for removing justices on the grounds that such measures did away with the constitutional requirement of a two-thirds majority vote.
Despite the urgent nature of these appeals, it took the court three years to rule on the petitions, at which time it dismissed them on procedural grounds without ever addressing the merits.
The court attempted to justify this evasion by claiming, inaccurately, the petitioners were no longer "interested" in the matter. The evidence the court provided for this inaccurate claim was the fact that there had been "no procedural activity" by the petitioners for over a year. Yet it was the court, not the petitioners, that was responsible for the inactivity. As one justice (who disagreed with the court's handling of these cases) explained to Human Rights Watch, the petitioners had already completed their submissions and were waiting for the court to respond. In one case, for example, what was pending was a determination by the court as to whether it would handle the case as a "purely legal matter" (cuestion de mero derecho), requiring only "a final report" from the petitioners, or as a case in which petitioners would need to provide empirical evidence to substantiate their claims.
Moreover, even if there had been omissions on the part of the petitioners, the Supreme Court could still have addressed the merits of the case. Indeed, the 2004 Supreme Court law expressly establishes that the court can "supplement, de oficio, the deficiencies of petitioners" in cases involving constitutional challenges like these. Moreover, the court itself has ruled that it can address a constitutional violation, de oficio, even when the petitioners have not themselves identified that particular violation, or when their petition is somehow "deficient," or even when the court considers the petitioners' claim inadmissible.
The 2007 Constitutional Reform Process
The Supreme Court similarly avoided addressing challenges to efforts by Chávez and his congressional supporters to enact sweeping reforms of the constitution in 2007. The reforms included measures that would have dramatically expanded the powers of the executive branch by, among other things, authorizing the president to suspend fundamental rights indefinitely during states of emergency without any Supreme Court oversight.
Specifically, the proposed changes would have eliminated the constitutional prohibition on suspending due process guarantees during states of emergency-including the presumption of innocence, the right against self-incrimination, and other guarantees of a fair trial-in violation of international law. The reform would also have made it possible for a wide range of other fundamental rights to be suspended indefinitely, including the guarantee of equality and non-discrimination, and the freedom of thought, conscience, and religion, all of which are considered so fundamental that countries are not permitted to derogate from their obligations to respect them even in a state of emergency. In addition, the reform would have eliminated specific time limits on states of emergency and it also would have lifted the requirement that the Supreme Court review the constitutionality of any emergency decree that suspended rights.
Petitioners questioned before the Supreme Court both the content of the reforms and the process through which Chávez and his supporters were seeking to enact them. In terms of process, petitioners objected to Chávez and his congressional supporters seeking to enact a major reform package, with 69 amendments, through a single yes-or-no vote in a national referendum. They argued that this procedure violated the constitutional provision that requires that a constituent assembly be convoked to enact any reforms that modify the "fundamental principles and structure" of the document.
The Supreme Court declined to address any of these challenges. It argued that it could not review them until after the referendum had been held. According to the court, given that that the constitutional reform process is "complex" and composed of various steps, the process could not result in any effects (gravamen) on individuals until it concluded. (In a dissenting opinion, Justice Pedro Rafael Rondón Haaz held that the court could review the procedure that was being implemented to reform the 1999 Constitution, and that the proposed reform would in fact modify the constitution's structure and fundamental principles.)
Conflicts of Interest
The credibility of the rulings in both the court-packing and constitutional reform cases was further marred by the Supreme Court's unwillingness to recognize and address the blatant conflicts of interest of certain justices in each case, thus compromising their impartiality.
In the case of the court-packing law, the Supreme Court rejected a request to recuse three justices who had been appointed to fill the new seats created by the law, including Justice Luis Velázquez Alvaray, who had been a principal sponsor of the law as a member of the National Assembly. Clearly, the three justices had a direct interest in the final decision of the case, given that if the law were annulled, their appointments would no longer be valid. Yet the court argued, inexplicably, that there was not even "a possibility" that this could influence their decision. Disregarding the evident conflict of interest that was the basis of the recusal request, it claimed that these arguments did not overturn the presumption that justices are supposed to be honorable. According to the court, their honorability "cannot be doubted given that they must decide on the validity of a law that could affect them indirectly."
In the case of the constitutional referendum, the court rejected a request to recuse Justice Luisa Estella Morales Lamuño, who had participated in the drafting of the reform proposal that the petitioners were challenging. Morales, then-president of the Supreme Court, had been appointed by Chávez himself in January 2007 to serve as the executive secretary of the presidential commission that drafted the original version of the reforms. According to the rules governing the presidential commission, it had to "permanently inform the president" about its work, which would be carried out "in conformity with guidelines established by the head of state in strict confidentiality."
The court simply argued that there was no evidence that Morales's participation in such a commission would undermine her independence when deciding the case. Yet, while serving as executive secretary of the presidential commission that drafted the reform, she had publicly argued that it was unnecessary to carry out a constituent assembly to modify the constitution, which was one of the key questions the court was being asked to rule on.
Failure to Uphold Fundamental Rights
The packed Supreme Court's pattern of passivity and acquiescence has been evident as well in critical cases involving government infringement on fundamental rights.
On occasion, the court has issued rulings protecting basic human rights. For example, in October 2005, it protected the right to freedom of expression when it ruled that the attorney general could not sue the newspaper El Universal for an editorial criticizing his office and the judiciary, given that the article was an expression of opinion and did not amount to an institutional insult. In April 2006, it upheld Ibéyise Pacheco Martini's right to due process, finding that the prosecutor who accused her of perjury had failed to ensure that Pacheco was legally represented at the hearing at which she was charged, and had denied her the right to be heard.
However, the court has failed to uphold basic rights in several of the most prominent and politically sensitive cases.
Freedom of Expression
The Supreme Court failed to protect the right to freedom of expression and the right to due process and the rule of law in the high profile case of Radio Caracas Television (RCTV). As we document more fully in chapter 4, the court, by failing to resolve key rights issues, allowed the government to use its regulatory power in a discriminatory and punitive manner against a channel because of its critical coverage of Chávez and his government.
In December 2006, Chávez announced his decision not to renew RCTV's broadcasting license, which was due to expire the following May, explaining that Venezuela would not tolerate a channel that was "at the service of coup-plotting" and "against the dignity of the Republic." Chávez had repeatedly threatened such non-renewal in response to critical media coverage, accusing RCTV of involvement in the 2002 coup. Three months later, his communication and information minister formally adopted a decision to refuse to renew RCTV's license, without giving RCTV an opportunity to respond to the public accusation of criminal actions and broadcasting infractions cited by government authorities as grounds for the decision not to renew its concession. The government did, however, renew the license of Venevisión, a rival channel that Chávez had also repeatedly accused of involvement in the coup but that had since cut its overtly anti-Chávez programming.
RCTV and some of its supporters turned to the Supreme Court for relief, submitting appeals aimed at blocking the implementation of the president's decision. RCTV journalists and owners requested the court to protect their rights to freedom of expression, due process, and equal treatment.
The Supreme Court, however, failed to protect these fundamental rights. Instead, the court put off making a final judgment on the claims and refused to issue a temporary injunction to protect the petitioners while they awaited that judgment. In decisions by two separate chambers, the court, in questionable maneuvers-including disregarding key facts-evaded addressing the petitioners' claims. At this writing, more than a year after RCTV's license expired and it was taken off the public airwaves, the court still had not issued a final judgment on the legality of the government's actions.
In stark contrast with its handling of the RCTV petitions, the Supreme Court responded immediately to a petition by opponents of RCTV, issuing an injunction that allowed a newly created state channel to take control of RCTV's transmitters so that it could broadcast across the country.
Freedom of Association
The Supreme Court similarly failed to uphold the freedom of association of Venezuelan workers when it dismissed a petition to clarify the proper role of the state in union leadership elections. As we document in chapter 5, state interference in union elections, in direct violation of international standards on labor law practice, has been a widespread problem in Venezuela throughout Chávez's presidency. The court's failure to issue a clear ruling has effectively allowed the government to continue to violate workers' basic right to freely elect their representatives.
The Chávez government has interpreted the 1999 Constitution to require that all union elections be supervised and certified by a state institution, the National Electoral Council, and has exploited this requirement in ways that have undermined public sector unions identified with the political opposition. At the same time, when questioned by the International Labor Organization (ILO) about this practice, which is inconsistent with international law, the government has claimed that state certification of union elections is not in fact mandatory.
In May 2006, the National Press Workers' Union asked the Supreme Court to resolve this ambiguity and bar mandatory government involvement in union elections. The union argued that such mandatory state organization of elections violates international law and thus contravenes the Venezuelan constitution.
Rather than affirm workers' right to freely elect their representatives, the Supreme Court skirted the issue. The court dismissed the request for legal interpretation on the grounds that there was no contradiction between Venezuelan and international law. Yet it failed to indicate which of the two contradictory interpretations of the law-the one that the government presented before the ILO or the one that it applied in practice in Venezuela-was the correct one. As such, the Supreme Court left the ability of workers to freely organize their elections in limbo.
At this point, there is no easy way to reverse the damage done to the independence of the Venezuelan judiciary by the 2004 court-packing law, especially given the fact that the credibility of the National Assembly, which is responsible for judicial appointments, was itself damaged by the opposition's boycott of the 2005 legislative elections.
Under these circumstances, Human Rights Watch recommends as an extraordinary measure that, afterthe 2010 legislative elections, the new National Assembly implement a one-time ratification process to legitimize the composition of the Court, for example, by requiring a two-thirds majority affirmation vote for each Supreme Court justice whose appointment occurred after the passage of the 2004 Supreme Court law. Measures should then be taken to permit the lawful removal of any justice who does not receive a two-thirds majority vote during this process. Any resulting vacancies should be filled through a selection process that is open, transparent, and ensures broadest possible political consensus.
More immediately, the current National Assembly should:
- Repeal the provisions of the Supreme Court law that undermine the court's independence by allowing justices to be removed by a simple majority vote.
Once the National Assembly has completed the ratification process, the new Supreme Court should seek to reassume its role as an independent guarantor of fundamental rights. Specifically it should:
- Resolve quickly and impartially appeals involving allegations of infringements of fundamental rights, particularly if the court's delay would result in an irreparable harm; and
·Recuse justices who face clear conflicts of interests to ensure that all decisions are adopted impartially, and that the court is seen to be impartial, as well as acting impartially.
President Chávez and his supporters in the Venezuelan Congress have undermined freedom of expression through a variety of measures aimed at influencing the control and content of the country's mass media. They have extended and toughened penalties for speech offenses; implemented a broadcasting law that allows for the arbitrary suspension of channels for a vaguely defined offense of "incitement"; limited public access to official information; and abused the government's control of broadcasting frequencies to punish stations with overtly critical programming.
After nine years during which the country has been polarized between Chávez's supporters and detractors, Venezuela still enjoys a vibrant public debate in which anti-government and pro-government media are equally vocal in their criticism and defense of Chávez. However, in its efforts to gain ground in this "media war," the government has engaged in discriminatory actions against media airing opposition viewpoints, strengthened the state's capacity to limit free speech, and created powerful incentives for government critics to engage in self-censorship. Should the government choose to utilize the expanded speech offenses and incitement provisions more aggressively to sanction public expression, the existing political debate could be severely curtailed.
Chávez and his supporters have attempted to justify media restrictions as a response to what they consider to be irresponsible reporting and excessively partisan coverage by journalists and broadcasters. They accuse opposition media of conspiring to remove Chávez from office, and even participating directly in the 2002 short-lived anti-Chávez coup. They also justify the measures as being part of a broader effort to "democratize" the media so that it reflects viewpoints that were largely excluded from the commercial media in the past.
States have a right to sanction media that incite violence, the commission of crimes, or breaches of public order. However, under international norms on freedom of expression, broadcasting regulations must be precisely defined in order to avoid overbroad or arbitrary interpretation by officials that constrain free expression and the public's access to information and opinion. Permissible restrictions on speech do not include sanctions for expressing critical opinions of government officials, however offensive they may be. Governments are also fully justified in seeking to regulate the concentration of media ownership and in backing public service and community outlets in order to promote a more diverse and plural public debate. However, governments may not abuse their control of broadcasting frequencies to discriminate against outlets whose editorial line is not to their liking.
The Venezuelan government's "media democratization" efforts have produced positive results in at least one area. By licensing and giving financial support to hundreds of start-up community broadcasting ventures, the Venezuelan government has taken a leading role in the region in promoting local radio and TV stations.
However, the government's legitimate efforts to promote alternative media at the local level have been overshadowed by its efforts to restrain critical opinion. Chávez and his supporters in the National Assembly have resorted to actions and measures, aimed at influencing large-scale print and broadcast media, that run counter to international norms and threaten freedom of expression. Specifically, they have:
·Expanded the scope of insult laws (desacato), which punish disrespectful expression toward government officials, and toughened penalties for criminal defamation and libel.
Chávez and his supporters in the National Assembly have expanded the scope of laws punishing expression deemed to insult public officials and established draconian penalties for defamation, including increased prison sentences and onerous fines. Under reforms to the criminal code enacted in 2005 they increased the number of public officials benefiting from the protection of insult laws and greatly increased penalties, including prison terms, for criminal defamation. These measures are inconsistent with Venezuela's obligations under international legal norms of press freedom.
Journalists working for opposition media have borne the brunt of prosecutions under these laws in recent years, generating pressure on these media to tone down criticism. Were the government to aggressively pursue prosecutions under the new provisions, it would dramatically shrink the space for free expression in Venezuela.
·Expanded and toughened the penalties of vaguely defined "incitement" provisions that allow for the arbitrary suspension of TV and radio channels.
The 2004 Law on Social Responsibility in Radio and Television (hereinafter Social Responsibility Law), which replaced broadcasting regulations enacted in 1984, expanded the scope of an already broad prohibition on incitement and established severe penalties for broadcasters that violated it. Under the 2004 law, broadcast media can face suspension and ultimately revocation of their licenses for broadcasting material deemed to "promote, justify, or incite" war, breaches of public order, or crime. The transmission of such material can also be banned under this law. The broad and imprecise wording of the incitement provisions, the severity of the penalties, and the fact that the law is enforced by an executive branch agency all increase the broadcasts media's vulnerability to arbitrary interference and pressure to engage in self-censorship.
On several occasions officials have warned channels covering protests or showing repeated images of violence in demonstrations that they could be sanctioned under the incitement provisions. Given that government officials often claim there are subversive intentions behind critical news coverage, journalists and broadcasters have good reason to fear that these loosely-worded provisions could be used to sanction them for legitimate news coverage.
·Restricted the public's access to information held by public officials.
Government officials routinely deny or fail to respond to requests for information by the press and the public. This lack of transparency contravenes Venezuela's obligation under international law to guarantee the right to "seek, receive, and impart" information-which includes a positive obligation to provide access to official information in a timely and complete manner. Access to official information is crucial to ensure democratic control and transparency, and to promote accountability within the government.
While the right to official information is recognized in Venezuela's 1999 Constitution, the government has failed to promote legislation to define the grounds under which information may legitimately be denied. It has also failed to provide a mechanism to hold accountable those officials who arbitrarily reject or ignore requests for information.
·Abused state control of broadcasting frequencies by threatening or punishing channels for critical programming while favoring state-owned and commercial channels that refrain from strong criticism of the government.
On numerous occasions since the 2002 coup, Chávez has personally threatened channels sympathetic to the opposition with revocation of their broadcasting licenses. Such threats appear to have led to editorial changes by some broadcasters, creating a media landscape more favorable to Chávez. In procedures lacking transparency, the national broadcasting authority blocked applications for frequencies by Globovisión, a news channel that refused to yield to such pressures, while granting them rapidly to newly created state channels.
The most flagrant example of this discriminatory policy was the government's treatment of Radio Caracas Television (RCTV), Venezuela's oldest television channel and a constant critic of Chávez. On his orders, the government singled out RCTV-one of the four channels Chávez had accused of involvement in the coup-by refusing to renew its broadcasting license. At the same time, it renewed that of Venevisión, a rival channel that he had also repeatedly accused of involvement in the coup but had since cut its overtly anti-Chávez programming.
Whereas Chávez faced an almost entirely hostile broadcast media early in his presidency, he has since significantly shifted the balance of media forces in the government's favor. This shift has been accomplished by stacking the deck against critical opposition outlets while advancing state-funded media that are heavily slanted in favor of the government. For example, TVES-the state-funded channel created to occupy the frequencies vacated by RCTV-has proven to be no less partial in its pro-Chávez coverage than other state channels, despite much fanfare that it would be Venezuela's first genuine public service channel.
Instead of exercising its crucial role as guarantor of freedom of expression, the Supreme Court has effectively backed the government in these policies. It has declared insult laws to be constitutional and declared that the findings of the Inter-American Commission of Human Rights are not binding on Venezuela if they conflict with the Constitution. Most notably, the court failed to protect the right to freedom of expression and respect for due process in the RCTV case. The court requisitioned RCTV's transmitters-without a time-limit or compensation-for use by a newly created state channel, and yet failed to address the central human rights issues of freedom of expression, due process, and discrimination affecting RCTV's journalists and owners.
Venezuela's Polarized Media
The print and broadcast media have been the site of intense political struggle throughout the Chávez presidency. Both the government and its critics have used the media at their disposal as tools to attack each other and to mobilize their own supporters. Media coverage has tended to be extremely partisan on both sides.
During the early years of Chávez's government, four private television channels-Radio Caracas Television (RCTV), Venevisión, Televen, and Globovisión-dominated the public airwaves. Until 2004, all four stations sided openly with the opposition, providing uniformly partisan and anti-Chávez news coverage and commentary.
This partisanship was most evident during the short-lived 2002 coup. All four channels gave extensive coverage to the opposition march on April 11, but on April 12 and 13, 2002-after Chávez had been taken by the military to an unknown destination and his supporters were filling the streets demanding his return-they substituted cartoons and old movies for news coverage.
The news blackout of Chávez's return to power was followed by highly partisan coverage of the oil strike and opposition marches in December 2002 and January 2003, when opposition stations replaced commercial advertising with donated opposition political spots calling on people to join the protests. Apart from slanted news coverage, the private stations had interview programs dedicated to discrediting Chávez's policies, in which pro-government experts were rarely invited to participate.
The print media was also predominantly in the opposition camp. Two long-established daily newspapers-El Universal and El Nacional-were persistent critics, and another critical paper, Tal Cual, although with a much smaller circulation, also had considerable influence.
During the early years of his government, Chávez's administration had only one national television channel at its disposal (Venezolana de Televisión, VTV-Channel 8). Although VTV is a state channel with a mandate to be non-partisan, under Chávez it has been as partisan and biased as its private counterparts.
Chávez ran and continues to run his own television and radio show on VTV and National Radio, "Hello President," as a vehicle to communicate directly with his supporters. "Hello President" became his preferred venue for announcing new policy initiatives and he often uses it to challenge his media critics and political enemies.
One state television program openly attacks the opposition and the government's press critics. A nightly show on VTV, La Hojilla (The Razorblade), has used secretly recorded conversations, private documents, and similar material to expose or ridicule media critics. Chavéz often talks live on the phone to its host, Mario Silva, adding his own observations to Silva's attacks.
Chávez also made up his media deficit by using presidential authority to order all stations-including private television and radio stations-to interrupt programming without prior warning and broadcast his speeches and other government events live, often for hours on end, at peak viewing hours. In the nine years of his government, the president has ordered 1,710 such mandatory broadcasts, totaling 1,048 hours or 43 days of uninterrupted transmission, according to a recent study.
In the print media, two privately owned newspapers, Venezuela's largest selling daily, Últimas Noticias, and the Zulia-based newspaper Panorama, have been largely sympathetic to Chávez and his government.
In addition to the opposition and government media, a vibrant community media sector has emerged since the events of April 2002. After decades of being shut out by the mainstream media, a network of community activists seized upon Chávez's 1998 triumph to push for state support for community radio initiatives. They worked with Chavista lawmakers to draft legislation on alternative media that is among the most advanced in the hemisphere.
The Venezuelan law establishes a duty on the government to support community radio stations by granting licenses and providing seed capital, infrastructure grants, and training.Although the government was slow to implement the law, the licenses and financing began to flow after community radios proved their political value during the 2002 coup by breaking a news blackout by the private media and summoning Chávez supporters to the demonstrations that helped return him to power. By August 2007, 266 community radio stations and more than 30 community television outlets were licensed and operating, according to the National Telecommunications Commission (CONATEL).
The "Media War"
After the 2002 coup was overturned, Chávez and his supporters adopted an increasingly adversarial approach to the private media. They accused the United States of leading the international media and their Venezuelan counterparts in a "media war" to smear and destroy his government.
Government officials vigorously engaged the media "enemy." The communication and information minister said in an interview that the government was waging "a battle for the hearts and minds of the population," with the aim of gaining "state hegemony in communication and information." The minister described VTV's program La Hojilla as "a tool for the media war, whose purpose is to dismantle the false opinions created by the private media which hope to fool the people and destabilize the revolutionary process." In his speeches Chávez demonized his media critics as "fascists," "terrorists," "enemies of the people," "liars, "coup-mongers," "immoral," "trash," and "laboratories of psychological warfare," among other things.
These tirades, often delivered in speeches all media were obliged to transmit, fueled street violence between Chavez's supporters and opponents. In the months following the reversal of the coup, Chávez followers physically attacked and threatened scores of journalists and cameramen working for opposition outlets.
Although the number of such incidents declined after 2004, journalists working for media identified with the opposition have remained vulnerable to physical attack and threats of violence. The freedom of expression NGO Espacio Público reported 20 cases of aggression and intimidation of journalists during 2007, including three cases in which journalists' cars were reportedly set on fire while parked outside their homes. In July 2008, as the campaign for the November 2008 regional elections gathered steam, press monitoring groups reported several new cases. Such attacks are encouraged by the fact that those responsible for previous incidents have rarely, if ever, been identified and prosecuted. The Inter-American Court of Human Rights is currently considering the cases of 44 journalists and workers at Globovisión and of 20 journalists and workers at RCTV who allege they were victims of physical attacks or threats, among other violations of free expression.
Alongside its verbal onslaught against the private media, the government expanded the number of outlets under its control. In addition to VTV it now also controls or owns three recently created channels: Vive TV, a cultural and educational channel founded in 2003; Telesur, an international cable channel which transmits nationally on public airwaves using the frequency once occupied by the private Canal Metropolitano de Televisión (CMT); and Venezuelan Social Television (Televisora Venezolana Social, TVES), set up in May 2007 to occupy RCTV's nation-wide frequencies. In addition, the National Assembly, now composed exclusively of pro-Chávez legislators, has its own cable television channel, Asamblea Nacional Televisión (ANTV), which transmits on public airwaves in Caracas. The more recently created public stations rarely transmit programs challenging the government view.
In addition to creating new state-financed channels, Chávez and his supporters have taken steps to limit broadcasting they deem unacceptable. The Social Responsibility Law introduced wide-ranging restrictions on the content of radio and television broadcasting. As this chapter details below, these legal constraints gave the state tools with which to interfere in free expression and intimidate media critics.
In 2005 two of the stations that had previously given full support to opposition campaigns, Venevisión and Televen, pulled controversial opinion shows and ceased to engage in overtly anti-Chávez commentary. Only RCTV and Globovisión retained their clearly critical editorial line.
Despite his repeated threats, Chávez refrained for years from closing down any media outlet. Indeed, prior to 2007, the only interruptions of broadcasting came during the short-lived coup of 2002, when coup supporters backed by police shut down VTV and National Radio and the police raided three community television and radio stations.
However, in December 2006, Chávez abruptly announced that he would not renew RCTV's 20-year broadcasting license when it expired the following year. Despite a national and international outcry, RCTV-the only remaining channel left on nation-wide public airwaves with an overtly critical line- was taken off the air on May 27, 2007. Its frequencies and national network of transmitters were taken over by a new government-funded channel, TVES, which has failed to deliver the plural and balanced public service broadcasting the government promised it would. RCTV was obliged to convert to cable in order to continue broadcasting.
Although the government has significantly shifted the constellation of broadcast media forces in its favor, political opponents continue to have access to critical outlets, albeit fewer in number. They include the cable channel RCTV International (the subscription channel through which RCTV reinstated its transmissions), Globovisión, Unión Radio, and several major national newspapers.
Nevertheless, as the rest of this chapter shows, the government now has an array of legal weapons with which it can clamp down on government critics at any moment. By promoting self-censorship, these laws constrain the expression of critical opinion, even when they are not rigorously enforced. The government's discriminatory use of its control of the airwaves and its repeated threats to use this control against critical channels also represent significant threats to freedom of expression.
Toughening Speech Offenses
In March 2005, Chávez and his supporters in the National Assembly expanded existing speech offense laws and established draconian penalties, including increased prison sentences and onerous fines for expression deemed to "offend" government officials.
These measures are inconsistent with international legal principles on press freedom. International human rights bodies have long called on governments around the world to decriminalize speech that may displease public officials so as to allow the press to effectively monitor government actions. But Venezuela has gone in the opposite direction. It has reaffirmed and extended insult laws (desacato)-which directly violate international freedom of expression norms-and introduced prison sentences of up to four years for defamation.
Insult laws (known in Spanish as leyes de desacato), which criminalize expressions deemed to offend the honor of public officials and institutions, directly contravene international human rights norms.
The Inter-American and European systems on human rights both consider insult laws incompatible with the free debate essential to democratic society. In a landmark 1995 report, the Inter-American Commission on Human Rights (IACHR) concluded that these laws are incompatible with Article 13 of the American Convention on Human Rights, which protects the right to freedom of thought and expression. The commission wrote, "[t]he special protection desacato laws afford public functionaries from insulting or offensive language is not congruent with the objective of a democratic society to foster public debate." It also noted that in democratic societies, political and public figures must be more, not less, open to public scrutiny and criticism. "Since these persons are at the center of public debate, they knowingly expose themselves to public scrutiny and thus must display a greater degree of tolerance for criticism." The commission also noted that insult laws have a chilling effect, since "the fear of criminal sanctions necessarily discourages people from voicing their opinions on issues of public concern particularly when the legislation fails to distinguish between facts and value judgments."
More recently, in Palamara Iribarne v. Chile (2005), the Inter-American Court of Human Rights held that "in the case of public officials, individuals who perform public services, politicians, and government institutions a different threshold of protection should be applied, which is not based on the specific individual, but on the fact that the activities or conduct of a certain individual is of public interest."
The European Court of Human Rights has stressed that the protection of freedom of expression must extend not only to information or ideas that are widely accepted, but also to those that "offend, shock or disturb." As the European Court noted in a case involving a politician accused of insulting the government of Spain, "Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society."
In a joint declaration, the Special Rapporteurs on Freedom of Expression of the United Nations, the Organization for Security and Cooperation in Europe, and the Organization of American States recommended in 2000 that "laws which provide special protection for public figures, such as desacato laws, should be repealed." The experts also recommended that "the State, objects such as flags or symbols, government bodies, and public authorities of all kinds should be prevented from bringing defamation actions."
International rights bodies also hold that defamation involving public officials should be decriminalized in the interest of promoting the vibrant public debate necessary to a democracy. The Principles on Freedom of Expression adopted by the Inter-American Commission on Human Rights in 2000 assert that protection of the reputation of public officials should be guaranteed only by civil sanctions. In other words, no one should go to prison for criticizing or offending a public servant. The Inter-American Court of Human Rights has held recently that the use of criminal proceedings for defamation must be limited to cases of "extreme gravity," as a "truly exceptional measure" where its "absolute necessity" has been demonstrated, and that in any such case the burden of proof must rest with the accuser.
The Inter-American Commission on Human Rights' Declaration of Principles on Freedom of Expression also holds that for a court to establish defamation it must be proven that "in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news."
Even while decriminalizing defamation is the more urgent task, excessive civil damages can also close down freedom of expression and should be prohibited. As the joint declaration of the UN, OSCE, and OAS experts stated, "civil sanctions for defamation should not be so large as to exert a chilling effect on freedom of expression and should be designed to restore the reputation harmed, not to compensate the plaintiff or to punish the defendant; in particular, pecuniary awards should be strictly proportionate to the actual harm caused and the law should prioritize the use of a range of non-pecuniary remedies."
In his report covering the Americas for 2006, the Special Rapporteur on Freedom of Expression of the OAS concluded that "the continuous use of criminal trial proceedings against journalists for desacato and defamation demonstrates, in the great majority of cases, both State intolerance of criticism and the use of these to frustrate investigations of acts of corruption."
Under Chávez, Venezuela has bucked the international trend to eliminate insult laws. Ever since its ground breaking report on insult laws was published in 1995, the Inter-American Commission on Human Rights has urged OAS member states to repeal these provisions from their criminal codes. Ten member states of the OAS, including Argentina, Chile, Peru, Paraguay, and Panama have now done so. 
Venezuela's Supreme Court, however has adopted a position contrary to this trend that openly defies international norms. In 2003, in response to an appeal against speech offense provisions of the criminal code filed by a human rights lawyer, its constitutional chamber ruled unanimously that Venezuela's insult provisions were constitutional. In refusing to align Venezuelan constitutional protection of freedom of expression with international standards it noted that the IACHR's recommendations were not binding on the state, and expressed the opinion that applying the norms set out by the IACHR could even endanger it and threaten its independence if implemented.
Rather than eliminate Venezuela's insult laws, Chávez and his supporters enacted legislation in 2005 that increases the range of public officials who may resort to insult prosecutions when faced with unfavorable press. Before the legislature enacted reforms in March 2005, only the president, the vice-president, government ministers, state governors, mayors, and justices of the Supreme Court could initiate prosecutions for an insult. The reformed code added to the list members of the National Assembly, electoral council officials, the attorney general, the public prosecutor, the human rights ombudsman, the treasury inspector, and members of the military high command.  In fact, all top Venezuelan officials now enjoy enhanced legal protection against media criticism.
Because the crime of insult does not require that the speaker or writer accuse an official of specific actions but merely that he or she use language that subjectively "offends" or "disrespects" a public official, defendants in insult prosecutions cannot escape conviction by proving the truth of what they assert. Whether the assertion amounts to an insult and how serious it is are matters left entirely to the opinion of the court. The wording of the law ("offends by word or deed, or shows lack of respect in any other way") is vague, broad, and subjective, making legal defense against a charge of this nature difficult. Journalists must choose their language carefully and conservatively to avoid offending the officials they write about.
The March 2005 reforms left unchanged a separate insult provision that penalizes insults directed not at officials but at institutions of state (an offense known as denigration [vilipendio]in Venezuela).Under this article, people held to have insulted the legislature, the Supreme Court, the cabinet, state legislative councils, or the higher courts can go to prison for up to 15 months. The notion that a state institution can bring insult actions resulting in prison sentences is a dangerous interference with freedom of expression that could seriously hamper the press from serving its role as watchdog in a free society.
All insult crimes in Venezuela carry prison sentences, and the higher the office, the greater the penalty. This reverses the democratic principle that public officials with greater public roles and responsibilities must be open and liable to greater degrees of criticism than ordinary citizens. Penalties range from a maximum sentence of 20 months in the case of justices of the Supreme Court, legislators, and the government officials listed above except for mayors, to 40 months in the case of the most serious offense against the president.
Venezuelan law also contradicts international norms by establishing that prison sentences can be imposed on anyone who "imputes to somebody a specific act that may expose them to public disdain or hatred, or harm their honor or reputation." Rather than eliminate these penalties, Chávez and his supporters in the legislature have increased them significantly.
While some governments in the region are considering legislation to decriminalize defamation in the case of public officials or persons in the public eye, Venezuela has once again moved in the opposite direction. Amendments enacted in March 2005 increased the minimum penalty for defamation from three months of imprisonment to one year. The maximum was increased from thirty months to four years if the offense is committed "in a public document, in writing or drawings distributed or exposed to the public, or through other forms of publicity." In addition, the new article prescribes substantial fines not present in the previous law, ranging from 100 tax units to 2,000 tax units (US$2,145 to US$42,898, at current rates).
It is also a form of defamation, injuria (roughly translated as "libel"), to "offend the honor, reputation and decorum of someone" without attributing to them a specific act. Under the new legislation the minimum prison sentence for this offense rose from three days to six months, the maximum from three months to two years. Fines, which were previously insignificant, were increased from a minimum of 50 tax units to a maximum of 500 tax units (US$1,071 to US$10,710 at current rates).
In addition, the reforms to the criminal code provide that the statute of limitations of one year that applies to defamation cases, and of six months in cases of injuria, may now be interrupted by "any action" of the plaintiff. This makes it easier for the litigant to extend the period of investigation. A notable feature of defamation prosecutions in Venezuela is that many stay open in the courts without progress or conclusion for years on end. These lengthy proceedings can take a heavy toll on the professional and personal lives of journalists.
Speech Offense Prosecutions
While these speech laws have not been enforced systematically, they are more than just a latent threat. As the following cases demonstrate, speech offense laws have been employed against journalists in a wide array of cases.
The prosecution of Napoleón Bravo for offending the honor of the Supreme Court exemplifies an insult prosecution that violates article 13 of the American Convention on Human Rights. In February 2006, at the request of the Supreme Court, the state prosecutor opened legal proceedings against José Ovidio Rodríguez Cuesta (a television celebrity known in Venezuela as Napoleón Bravo) for insulting the court.
The alleged offense occurred in September 2004 when Bravo's political program, "24 Hours," was covering the hunger strike of a sex abuse victim who was protesting the court's long delay in resolving her case. While the camera showed images of the protester, Bravo suggested, apparently with ironic intent, that the court served no purpose and should be made into a brothel. The then-chief justice asked the attorney general to open proceedings against Bravo. The prosecutor formally accused him of insulting the court's honor.
Bravo was subjected to a two-year investigation followed by two years of proceedings in the Venezuelan courts. The case against him remains open today.
A constitutional lawyer and academic, Tulio Alvarez was convicted of criminal defamation for publishing an article in which he cited an official report that he claimed implicated a congressman in financial mismanagement. He was convicted in February 2005 and given a suspended sentence of two years and three months imprisonment. (Under Venezuelan law, those sentenced to not more than five years in prison for a first offense may apply to a court for their prison sentence to be conditionally suspended.)
Alvarez's article, published in a May 2003 edition of the newspaper Así es la Notícia, suggested that a prominent congressman had used funds from the savings of National Assembly employees and former employees for other congressional purposes, leaving an unpaid debt to the employees' savings fund of 1,707,723,317 Bolívares (about US$792,000). Alvarez was representing the National Assembly employees' union in a legal case against the congressman, and had access to a report on the case issued by the superintendency of savings banks, a body attached to the Ministry of Finance.
In December 2003, the congressman filed a complaint against Alvarez for defamation. A year later, the court barred Alvarez from leaving the country as a "precautionary measure" to prevent him escaping justice. In February 2005, the court convicted Alvarez and sentenced him to two years and three months in prison, suspended. The court found that Alvarez had defamed the congressman by insinuating his guilt because the report he citedonly established that the moneyowed to the savings bank had not been paid, and not that the congressman was guilty of malfeasance.
Julio Balza, a veteran journalist who writes a weekly column for the opposition newspaper El Nuevo País, has faced four defamation prosecutions since 2004 for his criticism of public officials.
In July 2006 Balza was given a suspended prison sentence of two years and eleven months and fined about US$12,500 for calling a government minister "imprudent, mendacious, negligent and incompetent" after the viaduct linking Caracas's Maiquetía airport with the capital was taken out of service in March 2006 due to risk of its collapse. The minister had headed long and unsuccessful efforts to reinforce the structure, which Balza had criticized in the paper. The Caracas Appeals Court confirmed the sentence in December 2006, and in April 2007 the Supreme Court declared a final appeal inadmissible. In this case the three impugned articles made no specific accusations but simply expressed a strongly worded opinion about the minister's competence.
In previous years, Julio Balza had been accused three times of defamation by officials of the Maiquetía airport authority for accusing them of corruption. Two of the cases were settled out of court. In one case, Balza agreed to publish three successive articles apologizing for the harm caused to the institution, and to write to its director promising not to attack the airport's honor and reputation in the future.
Henry Crespo and Miguel Salazar
In May 2006, a Caracas court sentenced journalist Henry Crespo, a columnist for Las Verdades de Miguel-a periodical with a long record of investigating corruption cases and political intrigue-to an 18-month suspended jail term for defaming the governor of GuArico state.
Las Verdades de Miguel had run a series of reports on a congressional investigation into financial irregularities involving four projects undertaken by the Gúarico state government. The court considered that a comment cited by Crespo that the governor's actions were a "compendium of the criminal code" was defamatory, as were other articles Crespo wrote in Las Verdades de Miguel denouncing corruption in government projects.
The governor and two close political associates also filed a defamation action against the magazine's editor, Miguel Salazar, for publishing articles about alleged corruption and accusing the governor of hiring someone to kill him. Salazar's trial began in April 2007 and continued as of this writing.
The only person convicted of a speech offense in recent years who has served prison time was not a journalist but rather a retired military officer who was prosecuted under the military criminal code for a comment he made on a television talk show.
Gen. (Rtd.) Francisco Usón, an outspoken critic of the ChAvez government, was sentenced by a military court in November 2004 to five years and six months in prison for "insulting the armed forces."
Usón was convicted for comments he made in April 2004 as a guest on Televen's television show "La Entrevista" ("The Interview"), hosted by opposition journalist Marta Colomina.
Part of the interview concerned events in the Mara Fort (Fuerte Mara) in February 2004, when eight soldiers being held in a punishment cell were severely burned. Two of them later died of their injuries. The soldiers' deaths caused an outcry in the opposition press. A day before the program was aired, a prominent critic of the government, Patricia Poleo, had published an article alleging that the fire had been caused by a flamethrower. Interviewing Poleo and Usón, the program's host, Marta Colomina, asked Usón for a technical opinion on the use of a flamethrower. He said that to use it a mixture of gasoline and napalm had to be prepared beforehand, implying that if a flamethrower had been used such an action would have been premeditated. "If that turns out to be true, it would be very, very serious," he said.
Although he had retired from the army a year before the interview, Usón was charged under an article of the military criminal code that punishes anyone who "insults, offends or disparages the armed forces." In November 2004 a military court convicted Usón in a rapid trial that was closed to the public. Over the next few months, both a Martial Court and the Supreme Court rejected Usón's appeals against the sentence. Usón was released on parole in December 2007.
In some cases, prosecutors investigating alleged abuses or cases of corruption reported by journalists subsequently level charges at the journalists, even though the officials accused in their articles did not sue for defamation.
Such was the case with Marianella Salazar, who faces criminal charges of maliciously accusing a public official (slander, calumnia)more than four years after the publication of the article in dispute. In Venezuela, to engage in malicious accusation (calumnia) is to accuse someone of a crime in the presence of a judicial authority knowing the accusation to be false.
The article, published in the newspaper El Nacional in June 2003, was about an allegation that two government ministers were involved in a plan to acquire electronic spying equipment from a European defense agency. The article described an alleged dispute between them over lucrative commissions expected from the deal. In accordance with a procedure laid down in the law, the two ministers asked the public prosecutor to investigate the allegations made by Salazar in order to clear their names, but did not sue her for defamation. After interrogating Salazar and two men named in the article, the prosecutor concluded that the author had been unable to supply proof and that her allegations were unfounded.
Subsequently, the prosecutor accused Salazar of calumnia because she had shown him, in the course of his investigation, an article by a third party that had corroborated her story. The case brought by the prosecutor against Salazar was still open at this writing, although the prosecutor's accusation presents no evidence to support the notion that Salazar knew the information to be untrue.
In October 2004 another prosecutor opened criminal proceedings against an investigative journalist after examining allegations she made against several government officials and finding them to be without substance. The prosecution again originated in an investigation requested by government ministers in reaction to allegations, in this case published by opposition columnist Ibéyise Pacheco in the newspaper El Nacional.
Like Salazar, Pacheco was prosecuted not for these allegations but for evidence she submitted to the prosecutor in the course of his investigation, in her case for perjury. The investigation was eventually annulled on due process grounds.
In a May 2003 article entitled "Between Delinquents," featured in El Nacional,Pacheco published an alleged conversation between Hugo ChAvez, Vice-President José Vicente Rangel, other officials, pro-government legislators, and military officers that supposedly took place in Miraflores (the presidential palace) the previous February, two months before the short-lived coup. Among the plans allegedly approved was one to kidnap union leader Carlos Ortega and blame the crime on an extreme left-wing Chavista group, another to intimidate the press, and another to organize fake terrorist attacks and assassinate opposition figures.
After interviewing all the alleged participants in the conversation, the prosecutor concluded that it was fictitious, and closed the investigation. The prosecutor then concluded that Pacheco had lied during the investigation about the transcription of an alleged tape recording on which the article was based. Based on a discrepancy between her version and the evidence of a fellow journalist, the prosecutor opened proceedings against Pacheco for perjury that lasted for two-and-a-half years.
Her lawyers filed an appeal to the Supreme Court alleging that Pacheco's rights to due process had been violated. They argued that she had been charged without having legal representation and being given an opportunity to defend herself, in violation of Venezuelan law.
Finally, in April 2006, the Supreme Court's Cassation Chamber granted the appeal and annulled the trial, finding that the prosecutor had failed to ensure that Pacheco was legally represented at the hearing at which she was charged, and moreover had denied her the right to be heard.
Luz Mely Reyes
Most of the journalists who have faced legal action for their reporting have been outspoken ChAvez opponents, or have worked for strongly antigovernment media. However, investigative reporters working for pro-government media have not been immune from legal intimidation by government officials. In March 2007, Luz Mely Reyes, an investigative reporter for the generally pro-government tabloid Últimas Noticias, received a letter from a cabinet minister threatening to have her prosecuted for conspiracy for a series of reports alleging irregularities in a major government development project.
On March 11, 2007, Reyes published the first of a series of weekly articles in the newspaperdescribing how contracts for government development projects had been traded in exchange for million-dollar commissions, with an estimated loss to the state of about US$117 million. The projects were part of a joint development plan with Iran to install corn and milk production facilities in different parts of Venezuela. Execution of the plan was entrusted in March 2006 to the Ministry of Communal Economy, and was supposed to take six months. However, by the time the articles appeared none of the projects were operational and widespread management irregularities had been detected. At the center of the controversy were various successive communal economy ministers.
On March 18 during a "Hello President" transmission from the state of Barinas, ChAvez complained about a reference to Iran in the title of one of the articles, accusing the paper of being manipulated by powerful groups in the country, which he did not identify.
Reyes and the paper's director, Eleazar Díaz Rangel, later received a letter from the communal economy minister, threatening both of them with prosecution for criminal conspiracy under a provision of the criminal code that punishes those who "conspire or rebel in order to violently change the Constitution of the Bolivarian Republic of Venezuela." This grave political crime carries a prison sentence of up to 24 years. The minister expressed concern that the article could be part of a "campaign destined to encourage disloyal competition or simply cause economic damage to people, enterprises and institutions."
Although the Attorney General's Office never took up the case, the minister's threatening letter was itself problematic, since threats by officials of legal action in response to publications can lead to media self-censorship and hence indirectly limit freedom of expression.
Laureano MArquez and Teodoro Petkoff
In February 2007, a court specializing in child welfare cases fined author Laureano MArquez for publishing a letter to ChAvez's nine-year-old daughter Rosinés, satirizing ChAvez's authoritarian style of government, which appeared on the cover of the newspaper Tal Cual on November 25, 2005. The newspaper's director, Teodoro Petkoff, was also fined. The fines totaled nearly US$50,000.
The imaginary letter asked ChAvez's daughter to persuade her father to soften his attacks on his political opponents. A child welfare judge ruled that it violated the child's right to honor, reputation, and privacy, which are protected under the Organic Law for the Protection of Children and Adolescents (LOPNA) as well as Venezuela's law approving the United Nations Convention on the Rights of the Child.
But more was at stake than the child's privacy. The court found that the article "incited disrespect for symbols of the nation and for her father, since, regardless of the office he holds, he deserves his children's respect, and a medium of communication should not encourage a young girl to despise her father, or involve a girl in political argument concerning the post that he holds, nor does the girl need to have direct knowledge of the political objections of the citizens…." The judge concluded that the child's rights to honor, peer-group relations, family life, and social development had been gravely affected.
In the newspaper's defense Petkoff claimed that it was ChAvez himself who had made his daughter into a public figure by mentioning her repeatedly in his speeches. A few days before the article appeared, ChAvez had suggested in his "Hello President" broadcast that the national coat of arms should be changed because his daughter had pointed out that the white horse on the emblem was looking the wrong way, an event which in fact came to pass.
Article 65 of the LOPNA protects children's "right to honor, reputation, self image, private life, and family privacy, which may not be subject to arbitrary and illegal interference." While the judge found that the article had "seriously compromised" these rights, she did not explain how she reached this conclusion. According to her finding, "there is no report to determine how her rights were damaged, what were the disturbances in her family life, what was the harm caused, but we know that it is so, since we have all been children…." The judge added, "it is also evident, and follows from the [president's] speeches on 'Hello President' that neither the father, nor the child herself, agrees with the publication."
The judge was referring to remarks by ChAvez in his weekly broadcast two days after the publication of the Tal Cual article. ChAvez had criticized the writer's reference to his daughter, describing her reaction to the article with pride: "She said to me: 'Papi, it's a lack of respect for the coat-of-arms.' She didn't complain about herself, but about the coat-of-arms, you see? How fantastic children are! How fantastic children are to teach a lesson to those animals infesting the sewers!" The prosecution of Tal Cual seemed to follow the cue of the president's objections.
Regulating Media Content
In December 2004, the Law on Social Responsibility in Radio and Television ("Social Responsibility Law"), a comprehensive statute that regulates television and radio content, came into force. The new law, which replaced broadcasting regulations enacted in 1984, contained detailed regulations to protect minors from exposure to unsuitable content, established programming obligations in order to promote Venezuelan music and national producers, and allowed audience groups to participate in broadcasting regulation. The law also expanded the scope of an already broad prohibition on incitement and established severe penalties for broadcasters that violated it.
The broad and imprecise wording of the new incitement provisions, the severity of the penalties, and the fact that the law is enforced by a body dependent on the executive branch all increase the broadcast media's vulnerability to arbitrary interference and pressure to engage in self-censorship.
It is generally recognized that incitement to violence may legitimately be subject to legal sanctions on public order grounds. But the power to prohibit such speech is not unlimited. Because of the importance of allowing a full and free public debate, the government must only impose restrictions on grounds of incitement where there is a direct relation between the speech in question and a specific criminal act. The International Criminal Tribunal for Rwanda, for example, held that the "direct" element of incitement implies that the incitement "assume a direct form and specifically provoke another to engage in a criminal act," and that "more than mere vague or indirect suggestion goes to constitute direct incitement....The prosecution must prove a definite causation between the act characterized as incitement ... and a specific offense."
In Incal v. Turkey, the European Court of Human Rights ruled that Turkey had violated the European Convention on Human Rights by sentencing a Turkish national to prison because he had written a propaganda leaflet that, according to the government, incited hatred and hostility through racist words and advocated illegal forms of protest. The court agreed that the leaflet included a number of "virulent" criticisms of the government's policies towards the Kurdish minority, and called on Kurdish citizens to "oppose" these policies by forming "neighborhood committees." The court concluded, however, that these appeals could not be taken as incitement to the use of violence, hostility, or hatred between citizens. It also considered that a prison sentence was "disproportionate to the aim pursued and therefore unnecessary in a democratic society."
As these judgments illustrate, governments are required to tread with care to avoid endangering freedom of expression in efforts to prevent violence or the disruption of public order. Moreover, because the crucial link between speech and action must be demonstrated by interpretation and argument, it is essential that the procedures under which cases are examined are transparent and impartial.
The Social Responsibility Law, which applies to all television and radio broadcasters except international cable channels, contains broad and imprecise provisions on incitement whose infringement can lead to a channel having its broadcasting license suspended or revoked.
According to article 29 of the law, stations which transmit messages that "promote, defend or incite war,… disturbance of public order,… crime…, or are a threat to national security" may have their license suspended for 72 hours or revoked for up to five years on a second offense. In addition, once an investigation under article 29 is underway, the law permits the government telecommunications commission, CONATEL, to censor the broadcaster's messages if they are considered to violate the article's provisions.
The Social Responsibility Law was intended to modernize broadcasting regulations which date from 1984, but the overly vague incitement provisions of those regulations were retained and expanded. Whereas the 1984 regulations referred only to "incitement," article 29 of the new law also makes it an offense to "promote" (promover) or "defend" (hacer apologia) disturbances, crimes, or threats to national security. Under the new law, broadcasters can be sanctioned for commentary that appears to justify actions that already occurred.
The lack of clear language limiting the application of these terms increases the possibility of arbitrary application, and also offends the principle that laws must be of sufficient certainty and legal precision that people are able to regulate their conduct to avoid infringement. This principle of legality is infringed where it would be particularly difficult to distinguish between the circumstances in which a message would be considered as public "promotion" or "defense" of an act of public disorder and those in which it would represent the legitimate exercise of the right to express an opinion.
The Social Responsibility Law also greatly increased penalties for infractions. Under the 1984 broadcasting regulations fines had become trifling, not exceeding 4,000 Bolívares (a little over US$2.00 in 2004). Channels or stations that violate the regulations to protect children now face fines of up to 2 percent of their income in the previous tax year. Whereas in the 1984 broadcasting regulations, incitement of rebellion was subject to a fine or suspension, in the Social Responsibility Law, incitement is punishable by suspension on a first offense.
Dangers of Broad and Imprecise Wording
This latitude in the current provisions is particularly troubling given the penchant of ChAvez and government officials to categorize dissent as subversion, treason, or incitement of violence. They often describe protests as a cover for destabilizing action and as being manipulated by the "oligarchy," "fascists," or the "imperial power." ChAvez, for example, referred to the largely peaceful student protests against the non-renewal of RCTV's broadcasting license in 2007 as a "soft coup" (golpe blando).
Similarly, the current communication and information minister referred to the boycott of the 2005 congressional elections as "a new coup d'état" and as being "contrary to democracy." While electoral abstention may be harmful if its effect is to weaken democratic checks and balances, it is also an exercise of the right to engage in peaceful protest. To describe it as tantamount to a coup is at best misleading and inaccurate and worst another threat against non-violent expression, especially given that neither participation in elections nor voting are obligatory in Venezuela. Vice-President José Vicente Rangel even described opposition candidate Manuel Rosales's suggestion that the election be postponed as being "in the same line as the April 12 coup."
Following the government's logic, any radio or TV broadcasts deemed to have incited, promoted, or merely defended participation in the protests, the electoral abstention, or the postponement of elections could be accused of violating the Social Responsibility Law, and the broadcaster would be liable to suspension or ultimately revocation of its license for five years.
Lack of an Independent Regulatory Body
The bodies responsible for investigating and sanctioning infractions under the Social Responsibility Law do not enjoy sufficient guarantees of independence to protect them from political interference. The decision to open an investigation and the application of sanctions for infractions of broadcasting laws are the responsibility of the National Telecommunications Commission (CONATEL), a body attached to the Ministry of Communication and Information. CONATEL also decides on the application of preventive measures, which as noted can include prohibiting transmissions. While defined in law as an autonomous body, CONATEL's four-person board of directors and its director general are all appointed by the president of Venezuela and can be dismissed at his discretion.
The government also has a majority on the Directorate of Social Responsibility, the body created under the Social Responsibility Law to analyze infractions and impose sanctions. The directorate is headed by CONATEL's director general, and includes six officials selected by ministries and state institutions, two representatives of audience groups organized by CONATEL, a university representative, and a church representative.
The danger of overbroad interpretation of the vague incitement provisions could be limited if the enforcement body were independent from the executive branch and staffed by professionals who have suitable qualifications, serve fixed terms of office, and enjoy security of tenure while in office. While the directorate includes members from different sectors of society, the law does not state the criteria required for appointment to the directorate or the period of office of its members, and it does not protect them from arbitrary or politically motivated dismissal.
Government Use of Incitement Provisions
To Human Rights Watch's knowledge, CONATEL has not at this writing imposed any sanction under article 29 of the Social Responsibility Law. Yet officials have repeatedly invoked these provisions in warnings issued to television stations at moments of political tension, and in circumstances in which their application would have been unjustified and hence an arbitrary interference in freedom of expression.
Coverage of Anti-Crime Protests
In April 2006, for example, CONATEL's director general invoked the incitement provision of the Social Responsibility Law in response to private stations' coverage of street protests sparked by a violent crime. In letters to the directors of Globovisión and RCTV, the official warned them against inciting breaches of public security and crime and reminding them that the station could be punished for failing to comply. The provisions of article 29 of the Social Responsibility Law were underscored in the letters. Globovisión and RCTV had been covering the discovery of the bodies of three teenage brothers and their driver who had been kidnapped for ransom and ultimately executed. The shocking murders sparked street protests-extensively covered by the two channels-against the government's failure to tackle the problem of rising violent crime.
These brutal murders and the protests they sparked were clearly matters of public interest, and therefore legitimately the subject of extensive coverage. The government was not justified in invoking the incitement provisions as a lever to persuade the channels to change their editorial decisions, whether or not they believed the channels had political motives in making such decisions.
Coverage of RCTV Case
Government officials also invoked the incitement provisions in response to media coverage of RCTV's removal from the public airwaves after its license expired. When this event sparked large student demonstrations across Venezuela, the Directorate of Social Responsibility warned about transmitting messages that incite hatred and lawbreaking, and announced that it was, in permanent session, monitoring media coverage of the protests.
The government objected specifically to the media's presence at a press conference that the Inter American Press Association (IAPA) held in Caracas. The Ministry of Communication and Information's delegate on the directorate claimed that an IAPA statement read at the conference invited Venezuelans not to recognize the government's decision not to renew RCTV's broadcasting concession. She said that the IAPA's declarations violated the Social Responsibility Law and called on the channels not to broadcast them. The official warned the audiovisual media that they could face a 72-hour shutdown if they disseminated messages "promoting discrimination or inciting war."
The accusation that IAPA had incited disobedience of the law was unfounded. The IAPA press release described the RCTV decision as an "abuse of power" and called the Venezuelan government "undemocratic" for declining to renew RCTV's license. While the press release might have encouraged some people to discuss the issue or express comparable views, it could not have "incited" illegal acts preventing the decision from taking effect because only the government or the courts could have prevented its implementation. In any case, the media had a right to report on what the press association said at its press conference, whether or not it was critical of the decision and the government.
Coverage of Electoral Boycott
In December 2005, CONATEL invoked the Social Responsibility Law's incitement provisions in response to media coverage of the campaign leading up to the congressional elections of that month, during which the main opposition parties announced they were pulling out and called on voters to boycott the vote. The government was concerned that the private media were themselves encouraging the election boycott. Top government officials including ChAvez and Vice-President José Vicente Rangel accused opposition parties advocating abstention of fomenting an "electoral coup", instigated by the United States embassy. ChAvez, on a national broadcast, warned RCTV and Globovisión that "the permissive ChAvez was buried in 2002" and he would not allow further calls for "destabilization."
Within hours of ChAvez's national address, CONATEL summoned media directors to a meeting to discuss coverage of the National Assembly elections after opposition candidates announced that they were withdrawing from the race in protest at alleged electoral irregularities. A CONATEL official who was present at the meeting told the press afterwards that he had merely "refreshed" the managers' memories about their legal responsibilities. But more specifically, according to Venevisión's vice-president, the directors were urged to make sure their coverage did not incite crime, attack national security, or call for war-the three offenses listed in article 29 of the Social Responsibility Law.
CONATEL official told Human Rights Watch there was no reason to be concerned about what took place. "The meeting was to evaluate with [the directors] how to interpret the norms in force and to request their cooperation. It was just a preventive measure, and there were no problems afterwards." However, what was troubling about the meeting was that the central issue was the channels' coverage of abstention calls made by the opposition candidates. While the electoral boycott was controversial, opposition calls for abstention and opposition demonstrations challenging the electoral process were clearly matters of public interest. Covering the abstention campaign was a legitimate activity and cannot be said to have constituted incitement to crime or violence or a threat to national security.
Other Incidents of Threatened Action against Broadcasters
In addition to threatening sanctions under the Social Responsibility Law, the government has pressed for criminal investigations against Globovisión on highly dubious allegations.
In May 2007, at the request of the communication and information minister, the attorney general launched an investigation to establish whether Globovisión had transmitted messages inciting Venezuelans to assassinate ChAvez. The minister said he believed the station had urged the president's assassination by transmitting a news archive clip of the gun attack on Pope John Paul II with an accompanying soundtrack of a song by salsa star Rubén Blades.The communication and information minister sent the complaint to the attorney general, insisting that communications experts who had analyzed the clip concluded that it contained a subliminal message inciting violence against the president.
The clip in question was transmitted by Globovisión as part of the political comment program "Hello Citizen," during an interview with RCTV's president, after RCTV's license renewal had been refused. During commercial breaks the station was airing clips from RCTV's 53-year history covering world events, including the sequence of the gun attack on the pope. The soundtrack from the Blades song "Have Faith," contained the words "Have Faith, it's Not Over Yet!" (Tengan fe, que esto no se acaba aquí) and had already been transmitted several times that week on the program. There is nothing to suggest that the lyrics are about anything other than hope and perseverance, and Globovisión, in fact, claimed that its commentators had urged participants not to resort to violence. Although the attorney general began an investigation into the minister's complaints, and technicians who worked on "Hello Citizen" gave evidence as witnesses, nothing was heard of the investigation afterwards.
In another case in October 2007, the interior and justice minister asked the attorney general to investigate an amateur video aired by Globovisión that showed a robbery in progress on a main road in Caracas. The minister accused the station of engaging in a psychological campaign to generate anxiety and fear in the population, and said he suspected that the video has been "prepared" to attack the government's anti-crime record. The beginning of the investigation was widely reported in the press, but it too was discontinued.
ChAvez's professed commitment to broadening popular participation in the political process has led neither to greater openness and transparency in government nor to easier public access to information held by government officials. Journalists and the public often experience difficulty in gaining access to what should be public information, and there is no legislation to provide effective redress in such circumstances.
The right to "seek, receive, and impart" information is recognized in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the American Convention on Human Rights.
There is growing international recognition that the right to seek, receive, and impart information encompasses a positive obligation of states to provide access to official information in a timely and complete manner. Both regional and international organizations have held that the right of access to official information is a fundamental right of every individual. In the Americas, the Inter-American Court on Human Rights has held that article 13 of the ACHR (on the right to freedom of expression) entails the right to receive information held by government offices, as well as these offices' obligation to provide it. Moreover, it is internationally recognized that this right is crucial to ensure democratic control of public entities and to promote accountability within the government.
The right of access to information is governed by the "principle of maximum disclosure," meaning the government is presumed to be under an obligation to disclose information. This presumption can only be overridden under circumstances clearly defined by law in which the release of information could undermine the rights of others or the protection of national security, public order, or public health or morals.
Access to Information under Venezuelan Law
Venezuela's 1999 Constitution guarantees the right of access to government files and records, "without prejudice to the limits acceptable in a democratic society concerning interior and external security, criminal investigation, and the intimacy of private life, in accordance with the law regulating the classification of documents whose contents are confidential or secret." The constitution also guarantees the right to "timely and truthful" information about official procedures affecting individuals directly, and access to any official resolutions adopted. And it establishes that "no censorship by public officials affecting the provision of information on matters under their responsibility will be permitted."
In furtherance of the right to information, the 2001 Organic Law of Public Administration establishes that anyone can submit a written request to a state entity for a specified document and has a right to receive a copy at his or her own expense.By default, all requests or petitions directed to an administrative authority, whatever their nature, must receive a reply within 20 days. Officials who do not reply face a possible fine of between 5 and 50 percent of their monthly salary.
Even though the obligation to provide information exists in law, there is no law that specifies the circumstances in which access to public documents may be denied. Nor is there any enforcement mechanism to address situations where officials fail to respond satisfactorily to requests for information. Officials at the Ministry of Communication and Information told Human Rights Watch that Andrés Izarra, during his first term as minister, presented a draft bill to the National Assembly to strengthen access to information that was discussed in the Assembly's sub-committee on media. Human Rights Watch was unable to confirm this information, but to our knowledge no such bill has been discussed on the floor of the National Assembly.
The Venezuelan section of Transparency International presented its own bill in 2007 to the president of the National Assembly's sub-committee on media. As of July 2007 the organization had been unable to get the endorsement of three legislators, the minimum required for introducing a draft law for consideration. In June 2008 the president of the sub-committee said that the sub-committee had "other priorities" and claimed that progress on the law had been held up by the attempts of some journalists to politicize the issue.
Failure to Respect the Right of Access to Information
Government officials routinely deny or fail to respond to requests for information by journalists. According to an investigation by Últimas Noticias, a generally pro-government newspaper, journalists have encountered obstacles in obtaining information from the police on crime statistics, judges and court officials, hospitals, state enterprises such as PDVSA, the comptroller general's office, and various ministries.
According to a log publicized by the newspaper El Mundo, only 37.5 percent of the officials responded to requests for official information made by its investigative reporters in 2007. The average wait for a reply was 38 days, almost twice the legal maximum. For example, a reporter approached the Ministry of Planning and Development to get information about the salaries of public employees. It took seven months, three letters, and a change of vice-minister before a reply was received. Similarly, it proved impossible to obtain information from the civil register (ONIDEX) on the number of Venezuelans who had left the country since 1997.
For NGOs, obtaining official information can be even more difficult. In a study conducted by the human rights NGO Espacio Público, 46 requests for information were made to the same number of government ministries and departments in 2007. The requests were for information about salaries, advertising expenditure, and a copy of the bill on access to information supposedly in the National Assembly. Only 4 percent of the requests received a positive reply. Eight-seven percent were rejected or not answered.
In the absence of an enforcement mechanism, neither journalists nor NGO representatives have any means of compelling officials to disclose the information that is withheld.
Controlling the Airwaves
The government has misused its control of broadcasting frequencies to discriminate against channels that are political opponents. In the most prominent and egregious case, ChAvez gave orders not to renew the concession of Venezuela's oldest television channel, Radio Caracas Television (RCTV), because it refused to tone down its hostile editorial stance.
Evolving norms in international law have strengthened the obligation of governments to promote pluralism in broadcasting. In 2001, in a joint declaration, the special rapporteurs on freedom of expression for the United Nations, the OAS, and the OSCE, determined that:
Promoting diversity should be a primary goal of broadcast regulation; diversity implies gender equity within broadcasting, as well as equal opportunity for all sections of society to access the airwaves; broadcast regulators and governing bodies should be so constituted as to protect them against political and commercial interference.
The special rapporteurs issued a further declaration in 2007 stressing that media regulation to promote diversity must be protected from political interference:
Regulation of the media to promote diversity, including governance of public media, is legitimate only if it is undertaken by a body which is protected against political or other forms of unwarranted interference, in accordance with international human rights standards.
Moreover, regional human rights norms on free expression do not allow states to use their control of radio-electrical frequencies to "impede the communication and circulation of ideas and opinions." Nor may they use such control to "put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express."
To safeguard against bias, political favoritism, and corruption, the procedures for granting or refusing broadcasting licenses should be open, impartial, and transparent. As the Inter-American Commission on Human Rights pointed out in a press release on the RCTV case:
[I]n competitions for or in the awarding of licenses for the use of wave bands, in accordance with the principle of equality of opportunity, states must promote open, independent and transparent procedures with clear, objective and reasonable criteria that avoid any political discrimination on the basis of the editorial line of a media outlet.
Political Use of Discretionary Powers
Venezuelan law bestows the power to award radio and television concessions on the communication and information minister following prior technical evaluations carried out by CONATEL. Although CONATEL is technically an autonomous agency, its four directors, like the communication and information minister, are all appointed by the president of the republic and can be dismissed at his discretion. There are no institutional controls to ensure that such decisions are based on an impartial consideration of the public interest rather than the government's political objectives.
In the case of free-to-air radio and television, concessions are decided on an individual basis, rather than through a competitive bidding process or lottery, as is the practice for other users of the airwaves. This means that the minister-and, by extension, the president-has full discretion to accept or reject applications. The absence of clear criteria for awarding concessions and the lack of impartial regulation of the process open the door to politically motivated and discriminatory decisions.
In December 2006, ChAvez announced on a nationwide broadcast that he would not renew the broadcasting license of RCTV, Venezuela's oldest and one of its most popular television stations. Filmed standing on a military parade ground, he said that Venezuela would no longer tolerate private media "at the service of coup-plotting, against the people, against the nation, against the independence of the nation, and against the dignity of the Republic!"
ChAvez had repeatedly threatened not to renew the broadcasting concessions of the country's main private television channels in response to critical coverage of his government. While he pointed to the channels' role in the 2002 coup as a justification, he also made clear that the threatened action would be in response to the continuously critical coverage of some of the channels.
In March 2007, three months after ChAvez announced his decision, the Ministry of Communication and Information published The White Book of RCTV (El libro blanco sobre RCTV), a compendium of the government's accusations against the channel. During the same month RCTV received a resolution and cover letter from the communication and information minister-the official responsible for television concessions-formalizing ChAvez's decision. Yet neither the official resolution nor the letter mentioned any of the accusations publicly leveled by ChAvez against the channel as grounds for the decision not to renew the license. After the Supreme Court rejected RCTV's legal appeals for an injunction, the channel stopped broadcasting on public airwaves on May 27, 2007.
While the ChAvez government was under no obligation to renew RCTV's concession, it improperly used its regulatory power to punish anti-ChAvez programming, discriminating against RCTV on political grounds and disregarding due process considerations.
A Discriminatory Decision
As noted, one of the principle justifications that ChAvez and his supporters offered for denying RCTV a concession renewal was its role during the 2002 coup. Ever since the events of April 2002-which he accused the media of fomenting-ChAvez had threatened the four largest private channels (RCTV, Venevisión, Televen, and Globovisión) with revocation of their broadcasting licenses. From June 2002 until he made the announcement in December 2006, ChAvez had made such threats on at least eight occasions in public broadcasts or interviews. On the last of these occasions, in November 2006, ChAvez warned that some of the licenses were due to expire the following year. "No one should be surprised if on March 27 [sic] I tell them their license is up."
Two private stations' licenses were in fact due to expire on May 27, 2007-RCTV's and Venevisión's. But in his December 2006 speech ChAvez made no mention of Venevisión-a channel he had accused with equal vehemence for its conduct during the coup-and its license was duly renewed for five years on its expiry.
If the non-renewal of RCTV's license was indeed a belated sanction for the channel's conduct during the coup, Venevisión should have received the same treatment. But after ChAvez's victory in the recall referendum in August 2004, Venevisión (along with Televen) pulled its adversarial political opinion shows and drastically reduced its coverage of opposition news. In contrast, RCTV (along with Globovisión) continued to cover protests extensively and broadcast comment that was uniformly critical of the government.
RCTV was singled out evidently because of its refusal to tone down this criticism. In fact, in June 2006, six months before ChAvez announced his decision, he himself pointedly compared the conduct of some stations, in an apparent reference to RCTV and Venevisión. At a televised ceremony handing over Russian rifles to the army, ChAvez ordered his ministers and CONATEL's director general to review private television concessions, placing a question mark over their renewal the following year. After complaining that some channels still acted like "fifth columns," he noted that other channels that he accused of supporting the coup had "given signs of wanting to change, and look like they intend to respect the Constitution and the law." The communication and information minister went further:
If we analyze the conduct of some channels that were openly in the coup and we compare it with today, there are qualitative changes: in programming, in reporting, in editorial line, in respecting the rights of users and fulfilling the obligations of public service providers. In other cases, there is no sign of any rectification and they stubbornly stick to their old ways."
Neither ChAvez nor the minister mentioned the channels they were referring to, but it was widely understood that the government's sights were on RCTV.
The discriminatory use of the government's regulatory authority was also made clear by the fact that ChAvez had issued his threats of non-renewal in response to critical coverage of his government. For example, the last such threat he made before announcing his decision on RCTV was during a televised address just weeks before the 2006 presidential election in which he denounced private stations for broadcasting a clandestine video of his energy minister calling on employees in the state oil company to abandon their jobs if they did not support ChAvez.
Lack of Due Process
As already noted, in March 2007, at the height of the controversy over RCTV, the Ministry of Communication and Information published the White Book on RCTV, a 360-page compendium of alleged malfeasance by the station. The documented cited several actions of RCTV as evidence of its involvement in the coup: its coverage of the street demonstrations which precipitated the coup; its splitting its screen during a presidential broadcast in order to continue showing scenes of the protests; repeated transmissions of speeches and comments by opposition leaders blaming the government for the violence; its refusal to transmit news of ChAvez's illegal arrest by the coup plotters; and its blacking out coverage of pro-ChAvez demonstrations as the coup unraveled. Yet none of these actions were formally investigated in an administrative or judicial hearing, and RCTV was not given an opportunity to defend its record.
The White Book also charged RCTV with monopolistic practices, incitement to violence, non-compliance with standards protecting children, and tax evasion. Yet the book did not show that any of these allegations had been proven, either in court or in an administrative investigation by the broadcasting authorities.
TVES: Democratization or Damage Control?
In March 2007, after an international outcry about ChAvez's announcement, Communication and Information Minister Jesse Chacón, sought to recast ChAvez's decision. In a resolution notifying the station of the expiry of its concession, Chacón presented the matter as a purely technical issue without any reference to the accusations. The government, Chacón stated, had "a peremptory need for…an open access television network with national range, like that which will become available when RCTV's concession expires." In a cover letter to the station's legal representatives, Chacón insisted that that "the expiry of a term is not a punishment," and that due process guarantees were not applicable to the case.
If the government's reason for not renewing RCTV's license had been, as Chacón claimed, to free up the frequency for a use that was in the public interest, the non-renewal would seem to be far more justifiable. However, the government appears to have had no such plans when ChAvez announced his decision in December 2006. For several months after his announcement the actual proposals for RCTV's replacement were extremely vague, even though the law requires that the potential grantee of a concession provide CONATEL with detailed proposals and technical plans, and even though their evaluation is normally a lengthy process. Not until mid-May 2007-two weeks before the new station was due to go on air for the first time-was the creation of the station, Venezuelan Social Television (Televisora Venezolana Social, TVES) officially announced.
Moreover, the government never explained satisfactorily why it did not use frequencies that were already at its disposal to create a new station. Chacón claimed that the VHF frequency used by RCTV was the best available for the purpose of creating a national network, and that other VHF frequencies were not practicable. However, at the time the government had 26 unused VHF frequencies that could have provided coverage similar to the RCTV concession. Failing that, the government could have used UHF as an alternative, as it did successfully when it launched Vive TV in 2003.
The government's improvised response to the future vacancy of the RCTV frequency was also apparent in its lack of technical preparation. CONATEL had not secured the technological capacity to transmit TVES's signal throughout Venezuela's territory before the expiry of RCTV's concession. According to Jesse Chacón, at the time of the hand-over TVES only had three transmitters functioning, two in Caracas and one in Maracaibo. The government had stressed that it had no plans to expropriate RCTV's transmitters.
As the crucial date neared, the audience groups registered with CONATEL provided a way out for the government. Eleven of them requested the Supreme Court to deliver an injunction obliging CONATEL to provide all Venezuelans with access to the station about to air for the first time. With unusual speed (the court had delayed for months before rejecting an appeal for an injunction filed by RCTV to keep it on the air), it granted the audience groups' appeal, and ordered the military to secure RCTV's transmitters across the country so that CONATEL could use them to transmit the TVES signal.
Chacón argued that the RCTV decision meant Venezuela's first public service outlet would contribute to the democratization of the media. After a year in operation, TVES has shown no signs of genuine independence of the government or editorial pluralism. The channel is funded by the government, its director and five of its seven governors are government appointees, and there are no safeguards to ensure representation of different sectors of opinion. An analysis of 42 hours of programming in June 2007 revealed that 8 percent consisted of repetitive government messaging, more than the 6 percent dedicated to news. The news coverage itself consisted largely of government information, and downplayed opposition opinion or stories that reflected badly on government authorities. A study of media coverage of the December 2007 referendum campaign revealed that TVES had coverage no less biased toward the Yes vote than the state channel VTV.
With RCTV's removal from the public airwaves, only Globovisión, whose 20-year license is due to expire in 2015, remains as a station with an unequivocal opposition editorial line. But Globovisión transmits a free-to-air signal only in Caracas and Valencia, enjoying only a fraction of RCTV's reach.
Globovisión has also been under pressure from the government for years because of its political line. It has received warning letters from CONATEL because of the political tone of its reporting, it has been frequently refused entry to government press conferences, and its reporters and cameramen have been physically attacked and threatened by ChAvez supporters.
Although government officials have recognized its broadcasting concession as legal, Globovisión, founded in 1994, still has not received a reply to an application for the validation of its license, a mandatory procedure for broadcasters whose license predated the Organic Law of Communications of 2000. Under this law, CONATEL was obligated to complete the validation process by June 2002, but it still had not done so at this writing.
Globovisión executives complain that its many submissions to CONATEL for extended coverage have been denied or more often ignored. In 1998, in the final year of the Caldera administration, CONATEL assigned Globovisión two extra frequencies in the states of Vargas and Monagas, with a one-year deadline to install its transmitters. According to Globovisión, it filed a request in May 1999 to CONATEL for an extension of the deadline. Having received no reply, it submitted further applications for the frequencies in August 1999, January 2002, April 2002, June 2002, and February 2005, all without result.
On top of failing to respond to Globovisión's requests, the government decided to free the frequencies that the company had been trying to secure for years. In September 2005 CONATEL began an administrative investigation against Globovisión for its failure to occupy these frequencies. Globovisión protested that it had not received legal authorization to use them after it missed the initial deadline, and that to do so without authorization would be illegal. Three months later, the Ministry of Infrastructure decided Globovisión was not at fault and ordered CONATEL to investigate the legal status of the frequencies. In April 2006 despite Globovisión's numerous applications for the frequencies over several years, CONATEL published a resolution freeing them for use by other service providers, without explaining to Globovisión the outcome of its long-delayed applications.
The Supreme Court supported the government's refusal to address Globovisión's claims. Globovisión had filed a writ in the Supreme Court to annul CONATEL's April 2006 resolution, alleging it had been denied a fair hearing. It also requested the court to issue a temporary injunction to suspend the effects of that resolution until the court had ruled on its legality. In November 2006, the Supreme Court's Political Administrative Chamber rejected Globovisión's request for an injunction, arguing that CONATEL's lack of response should be interpreted as a denial of Globovisión's requests. Two years later, the court has yet to rule on the legality of CONATEL's resolution.
In stark contrast to the bureaucratic obstacles faced by Globovisión in its efforts to reach a wider public, state-owned Vive TV, a cultural channel founded by the government in 2003 (nine years after Globovisión's inception), is currently transmitting on public airwaves to Caracas and all 23 of Venezuela's states. As we have seen, the government's most recently created channel, TVES, obtained in a matter of days nationwide frequencies and a network of national transmitters which RCTV was obliged to surrender indefinitely without a judicial hearing.
Vale TV (Channel 5)
CONATEL's treatment of Vale TV is another example of the lack of transparency and apparent arbitrariness of the government's administration of broadcasting frequencies. In this case, the reason for discrimination was less political (Vale TV's programming was politically innocuous), but appeared to be based on the government's conviction that the station's frequencies legitimately belonged to the state.
During the 1990s Channel 5 (then TVN-5), Venezuela's oldest state channel, was virtually defunct, only retransmitting sports programs from the main state channel (VTV) for a few hours a day. In 1998 the Archbishop of Caracas proposed to then-President Rafael Caldera to replace it with a new public service non-profit educational and cultural channel, with commercial and technical backing from Venevisión, RCTV, and Televen. In December 1998 CONATEL reserved Channel 5's 27 frequencies across the nation for use by Vale TV and authorized it to begin transmissions.
The transfer of Channel 5 to the private sector attracted widespread criticism at the time, mainly because it was seen by media commentators on the left as a covert privatization. Upon assuming office, the ChAvez government began proceedings to recover the frequencies.
On December 14, 2005, CONATEL annulled the concession approved under the Caldera government, arguing that it had been assigned illegally, and took back the 26 frequencies outside Caracas that it had conceded to Vale TV in 1998. Vale TV was told to submit a new application for the Caracas frequency, and was given temporary authorization to transmit in Caracas while the application was being processed. Vale TV asked CONATEL to reconsider, but received no reply.
In April 2006, without any further consultation with Vale TV, CONATEL announced that the 26 frequencies had now passed to the state, and were now free for assignation to other users. In March 2007 Vale TV submitted to CONATEL the required application for its Caracas frequency and also for four of those it had originally possessed in other states (Lara, Bolívar, AnzoAtegui, and Carabobo). At this writing, CONATEL had ratified only the Caracas frequency, thus by default restricting Vale TV's coverage to the capital. To our knowledge, the 26 frequencies the state reclaimed from Vale TV have still not been assigned to other users.
Community Radio and Television
At the same time as the Venezuelan government has engaged in political discrimination in the distribution and administration of radio-electrical frequencies, it has also gone further than many Latin American countries in opening opportunities for broadcast media at the community level. The government's support for these media has contributed to a dramatic increase in the number of licensed community radio and television outlets in recent years, which has given new opportunities for public expression to residents of many poor communities in Venezuela.
The United Nations has recognized the role of community media in fostering sustainable development objectives for more than a decade. International bodies like UNESCO and the Inter-American Commission on Human Rights have stressed the importance of non-profit community media for the poorest sectors of the population who normally have very restricted access to the conventional media. In his 2002 report, the Special Rapporteur on Freedom of Expression of the OAS, Eduardo Bertoni, recognized their role in expanding the scope of free expression in societies with significant levels of poverty.
Since the 2002 coup, CONATEL has provided millions of dollars to support incipient community media across the country.
Government support was in part given in recognition of the role community radio played during the news blackout during the coup. While the mainstream commercial media were reporting that ChAvez had resigned, and with VTV and National Radio out of action, only a few community radio frequencies reported that he had in fact been arrested, calling ChAvez supporters' from the barrios onto the streets to protest the coup and demand his return. Some paid an immediate price for their reporting: two community outlets, Radio Perola and Catia TV, were raided by police after Carmona's illegal swearing in.
Long before the coup, however, the ChAvez government had committed itself to supporting alternative community-based media. After more than two decades of neglect and marginalization, community media were formally included for the first time in the telecommunications sector in the Organic Law of Telecommunications, enacted in 2000. The promotion of community media "for the exercise of the right to free and plural communication" is named second in a list of the law's objectives.
The Regulations for Non-Profit Public Service Community Radio Broadcasting and Open Community Television (hereinafter "the Regulations"), which came into force in November 2001, encourage community broadcasting. They allow anyone with appropriate skills to obtain a license to operate a community radio or TV station after a feasibility evaluation by CONATEL, and provided that conditions on financial independence and diversity are met. CONATEL provided technical support to start-up community media for a year after the Regulations came into force, including non-reimbursable grants for infrastructure, as well as training.
In October 2003, ChAvez announced that five billion Bolívares (approx. $2,300,000, at current rates) would be donated to a fund to be administered by a cooperative of community media operators to finance seed capital, infrastructure, and training. By 2006, some 3,994,008,000 Bolívares (about $1,860,000, at current rates) of the money had been spent, benefiting 109 community radio and television stations. By August 2007, 266 community radio stations and more than 30 community television outlets were licensed and operating, according to CONATEL.
During visits to Venezuela in 2007, Human Rights Watch interviewed staff at five community radio stations in Caracas and Maracaibo. Four had received money from CONATEL for equipment such as computers, sound equipment, or aerials, and some were operating from premises loaned by the municipal government or other government bodies. Radio Voces Libertarias, which houses a school that trains young people in radio and computing skills, had five unpaid permanent volunteers, and a transmitter and computers lent by the municipality, which also owns the building from which it operates. CONATEL was hiring more experienced workers at the station to organize training workshops in other parts of the country. Radio Nuevo Día in the low income neighborhood of Catia also received government support. "Everything you can see here we got with CONATEL's help," its director told Human Rights Watch. Some community radios also receive income from government advertising.
The legal regime governing community broadcasting contains norms to protect stations from government or other external interference. Under the Regulations, discrimination in access to the services provided is proscribed; stations are protected from being taken over by any particular political or religious group; state aid may not be made conditional on the donor's influence over program content or other controls; programming cannot be monopolized by an individual or a single group; and the re-transmission of government broadcasts is only acceptable within certain time limits.
The Regulations also establish that the "foundations" set up to start a community radio project must be run on democratic, participatory, and plural lines, with a governing council which is elected every three years, if not earlier. Certain people may not hold official positions on community radio foundations, such as public officials, members of the military, leaders of political parties at any level, leaders or representatives of labor unions, or business associations. As well as these controls, there is an express provision in the law that prohibits discrimination in accessing community media. Foundations must provide "equal access of all the members of a community to the services they provide," and may not "do anything by action or omission to discriminate and prevent access to the medium of some individual or group." Operators must provide airtime so that members of the community can participate in programs directly. Discrimination on the basis of "political beliefs, age, race, sex, creed, social condition, or any other condition" is not allowed. Operators must abstain from transmitting party or propaganda messages of any kind.
A large majority of community radio stations are supportive of the ChAvez government. However, they are not politically homogeneous, and by no means uncritical. Most are associated with the National Association of Free and Alternative Community Media (Asociación Nacional de Medios Comunitarios Libres y Alternativos, ANMCLA), which was formed after a split in the Venezuelan Network of Community Media (Red Venezolana de Medios Comunitarios, RVMC), which helped the government draft the community radio regulations. The RVMC now has about 70 radio stations compared to ANMCLA's 130.
Not all community-run outlets are pro-ChAvez, and even those that are frequently criticize corruption, mismanagement, or malfeasance by local officials. Among non-profit radios that have maintained an independent journalistic line is the Jesuit network Fe y Alegría, which has been involved for decades in popular education in some of the poorest parts of Venezuela, and has won awards from the government as well as from the opposition. There are several stations licensed by CONATEL that are overtly critical of ChAvez, such as Radio Tropical Stereo in Venezuela's second largest city, Maracaibo. Radio Tropical Stereo's director told Human Rights Watch that CONATEL imposed no political conditions when its license application was under consideration in 2003.
Although Human Rights Watch has not documented any cases of government discrimination against community broadcasters, the dependence of most community stations on the state for funding and broadcasting licenses makes them vulnerable to potential political interference in the future, particularly in light of the concerns noted above about the independence of CONATEL.
Lack of Judicial Protection of Freedom of Expression
The Supreme Court has not fulfilled its role as a defender of the fundamental right to freedom of expression from threats by the executive branch or the legislature. As noted earlier in this chapter, it upheld the constitutionality of insult laws that are contrary to freedom of expression norms binding on Venezuela, and invoked these laws itself against a media critic. In its handling of the RCTV case in 2007, the Supreme Court failed to ensure that decisions on the allocation and renewal of broadcasting frequencies are made transparently, without discrimination, and with respect for due process.
The Court's Handling of the RCTV Case
As we saw earlier in this chapter, the ChAvez government refused to renew RCTV's license, abusing its regulatory power to punish anti-ChAvez programming and showing utter disregard for due process considerations. At the time, RCTV and some of its supporters turned to the Supreme Court for relief, submitting appeals aimed at blocking implementation of the president's decision to deny RCTV a renewal of its license.
The Supreme Court, rather than addressing issues of protection of free speech and due process, engaged in a variety of dubious measures-including delaying urgent rulings, failing to address central issues, disregarding key facts, and miscasting the claims of the petitioners-before deciding in favor of the government.
The RCTV lawyers submitted their first appeal on February 9, 2007, six weeks after ChAvez announced the decision to deny the company a concession renewal. The appeal was directed to the Supreme Court's Constitutional Chamber, seeking protection of the rights of RCTV journalists and owners to free expression, due process, and equal treatment. Specifically, the station sought an injunction (amparo constitucional) against ChAvez and Communication and Information Minister Jesse Chacón, to prevent them from taking measures to force the station to stop transmitting when its license expired.
Under Venezuelan law, the court is required to expedite the resolution of such constitutional appeals but instead, for three months, the Constitutional Chamber remained silent on the matter. Only after the government had formally adopted the president's decision not to renew the license, and ten days before the license was to expire, did the constitutional chamber finally issue a ruling. The chamber denied the petitioners' request, rejecting some of their claims and deferring others to another chamber of the court, the Political Administrative Chamber (Sala Político Administrativa, SPA).
The SPA was, at that point, already reviewing a separate and similar appeal that RCTV lawyers had filed in April, after more than two months of waiting in vain for a ruling by the Constitutional Chamber. In this second appeal, the petitioners argued that the government's resolution formalizing the president's decision was unconstitutional, and requested a temporary injunction (medidas cautelares) to prevent its execution until the court reached a final decision on the case.
The SPA issued its own ruling five days after the Constitutional Chamber did, declaring that the majority of claims were too complex to be resolved at that point and would instead be addressed in a final judgment on the merits of the case in the indefinite future. It also refused to grant RCTV a temporary injunction while it considered the merits of the case, thereby allowing the government's decision to go forward and RCTV to lose its concession notwithstanding the potential illegality of the decision and the inevitable and perhaps irreparable damage that RCTV would suffer as a result. At this writing, more than a year after RCTV's license expired, the court still had not issued a final judgment.
In addition to putting off making a final judgment, both chambers of the Supreme Court made use of highly questionable arguments as they sought to justify their refusal to address RCTV's claims.
For example, the Constitutional Chamber rejected the appeal against ChAvez's decision on the grounds that the president was not legally responsible for the decision to deny RCTV the concession renewal. The court argued that the administration of broadcasting frequencies was exclusively the responsibility of CONATEL. While this is correct in general terms, the court appeared to ignore that Venezuelan law expressly provides that free-to-air television and radio concessions are adjudicated directly, not by CONATEL, but by the Ministry of Infrastructure (now the Ministry of Communication and Information), an official who is directly subordinate to the president. ChAvez was therefore perfectly within his powers to order the minister to rescind the decision not to renew RCTV's license, as the petitioners had requested, whether he had taken it personally or his minister had. In fact, ChAvez himself had made it emphatically clear in public statements that he had personally taken the decision, a fact that the court disregarded completely.
The SPA, meanwhile, dismissed the request for a temporary injunction claiming that the government's action did not pose a threat to freedom of expression. According to the court, RCTV would be able to continue broadcasting its views as a cable channel, and the station's large national audience would still be able to view "many other private channels." Absent from the SPA's reasoning was any consideration of the fact that RCTV was the only remaining channel on public airwaves with national coverage that was openly critical of the government, as well as the fact that large segments of RCTV's national audience had no access to cable. The SPA also failed to consider the broader impact that the president's openly political and discriminatory handling of the case could have on freedom of expression in Venezuela.
Similarly, when analyzing the temporary injunction request, the court dismissed RCTV's claim that its right to due process had been violated. RCTV argued that it had no opportunity to respond to the public accusation of criminal actions and broadcasting infractions cited by government authorities as grounds for the decision not to renew its concession. However the court based its ruling solely on an analysis of the resolution and letter issued by the communication and information minister in March 2007-two documents which carefully avoided any punitive language. It avoided mention of ChAvez's public justifications for his decision, as well as the White Book that detailed RCTV's alleged transgressions to justify the non-renewal of the concession. Based on this highly selective analysis, the court found that RCTV's assertion regarding its right to due process was misplaced.
Supporting the New State Channel
The Supreme Court's response to petitions by opponents of RCTV was dramatically different. Five days before RCTV's concession expired, the Constitutional Chamber received a petition from 11 pro-ChAvez audience groups seeking an injunction to guarantee viewer access to TVES, the state channel that was to replace RCTV after its license expired. It took the court only three days to admit the case and grant the petitioners a temporary injunction.
As noted earlier in this chapter, TVES was set up only two weeks before RCTV's frequency became available. As the date for TVES's launch neared, ministers recognized that the government had few transmitters of its own to broadcast its signal throughout the country.
The 11 audience groups argued in their appeal that if TVES's broadcasting range did not cover the entire country, it would violate their right not to be discriminated against, as well as their right "to obtain a quality public television service." The charge of discrimination was based on statements made by TVES executives that for the time being the TVES signal would be limited to the cities of Caracas and Maracaibo and would only be available by cable to viewers living outside these cities.
The constitutional chamber immediately admitted the petition and issued a temporary injunction assigning RCTV's transmitters and broadcasting equipment to CONATEL for use by TVES. The court also ordered the defense minister to secure and protect the broadcasting installations.
In order to justify this measure, the Constitutional Chamber held that the temporary injunction would not affect RCTV's property rights, despite the fact that it was assigning control over them to the state. However, the court did not fix a time-limit by which CONATEL would have to return the facilities to their owner or initiate proceedings to expropriate them. As of July 2008, more than a year after the court decision, TVES continues to use the transmitters.
The court used a petition seeking precisely the opposite outcome-blocking removal of RCTV from the public airwaves-to reiterate its decision that RCTV's equipment should be assigned for use by TVES. The Interactive Radio Listeners (Oyentes Interactivos de Radio, OIR), an audience group opposed to ChAvez, requested an injunction to prevent ChAvez and Chacón from taking steps to have RCTV removed from the air, arguing they had a right to continue watching RCTV. The court argued that their "right" was met by having access to a television service of quality, not by access to any particular broadcaster, and that the injunction enabling TVES to broadcast from RCTV's old transmitters satisfied any claims they might have.
In both rulings, the court stated in no uncertain terms that petitions for injunctive relief required immediate resolution by the court:
[O]n some occasions the object of judicial protection requires expedited protection, which in turn responds to the need to ensure the effectiveness of the court's future pronouncement, and to avoid the risk that a possible finding in favor of the claim is rendered ineffective by the irreversible consolidation of situations contrary to law or to the interest recognized by the court at the time.
This is exactly what the court failed to do when responding to the petitions by the RCTV journalists and owners. 
To prevent future acts of violence and intimidation against journalists, the government should:
·Ensure that all attacks on journalists are investigated promptly and thoroughly; and
·Avoid inflammatory public statements that could be construed as condoning such attacks.
The National Assembly should repeal all legal provisions which contravene international norms on freedom of expression and generate undue pressure for self-censorship. Specifically, it should:
·Repeal all insult laws (desacato);
·Repeal all laws that criminalize defamation of public officials and institutions;
·Ensure that civil damages for defamation are limited so as to avoid a chilling effect on free expression; and
·Amend the language of article 29(1) of the Social Responsibility Law to ensure that the offense of incitement is clearly defined and restricted to situations in which broadcasters directly and explicitly incite the commission of crimes.
The government should ensure the impartiality and due process in the procedures by which broadcasting laws are enforced. Specifically, it should:
·Ensure that investigation and sanctioning of alleged infractions of broadcast laws are carried out by an impartial and independent body protected from political interference; and
·Ensure that alleged violators of broadcast regulations are guaranteed the right to contest the charges against them.
To safeguard the right of access to information and increase the transparency of government and the accountability of government officials, the government should:
·Introduce legislation to implement effectively and without discrimination the constitutional right of access to information held by public entities.
To ensure the impartiality in the criteria used for the granting and renewal of broadcasting decision, the government should:
·Give applicants for concessions and frequencies opportunities to present their cases and be heard in a manner that follows appropriate due process, and includes safeguards against political interference.
The Venezuelan government under President ChAvez has sought to remake the country's labor movement in ways that violate basic principles of freedom of association. The government has systematically flouted its obligations under the conventions of the International Labour Organization (ILO) by promoting state interference in union elections, refusing to bargain collectively with established unions, and engaging in favoritism toward pro-government unions. It has also punished workers with job dismissals and blacklisting for legitimate strike activity. And it has supported the creation of alternative labor organizations that undercut the country's labor laws, risk undermining established unions, and leave workers particularly vulnerable to political discrimination.
President ChAvez and his allies have attempted to justify these violations as part of a broader effort to "democratize" the labor movement by safeguarding workers' rights against allegedly corrupt and co-opted union leaders. In particular, the government has argued that trade unions have failed to hold regular elections, thereby allowing union leaders to monopolize power and sacrifice workers' interests to their own political agendas.
Yet there is nothing "democratic" about firing workers who exercise their right to strike, or denying workers their right to bargain collectively, or discriminating against workers because of their political beliefs.
Moreover, for unions to be truly democratic, workers must also be free to elect their leaders and organize their affairs without being subject to unsolicited state interference and control. In fact, it is a central tenet of the international law protecting workers' rights that states should not interfere in the internal affairs of unions. This prohibition, established in ILO Convention No. 87 and repeatedly reaffirmed by the ILO, reflects the recognition that state interference in union affairs allows for political manipulation and control of organized labor in ways that severely impede workers' freedom of association.
There are many ways in which the ChAvez government could address the alleged problems of the country's unions without violating this fundamental prohibition on state interference in union affairs. For example, if there were serious grounds for believing that the alleged corruption of individual union leaders rose to the level of criminal activity, the government could conduct investigations and press criminal charges. If there were concerns about possible financial mismanagement, it could require unions to regularly submit financial reports. If there were credible evidence that union actions contravened their internal rules, an independent body could provide limited supervision to promote compliance with these rules. And if unions were failing to hold periodic and fair elections, the government could require that elections be held at specified intervals (provided it left the exact election procedures up to workers) and strengthen the appeal process to make it easier for workers to challenge alleged fraud in the courts.
But the ChAvez government has gone much further, routinely violating workers' rights, openly rejecting the notion that unions should be free from state interference, and intervening in union affairs in ways that favor its own political agenda. ChAvez has gone so far as to publicly rail against "the venom of union autonomy" and called for organized labor to serve as "the industrial arm" of his political project. And his government has promoted laws and measures that have allowed for significant state control over union affairs, enabling the government to weaken unions linked to the political opposition, and to foster the formation of parallel unions sympathetic to the government. Specifically, the ChAvez government has:
·Undermined workers' right to elect their representatives by mandating the organization and certification of union elections by a state institution;
The government has promoted state interference in union elections by requiring that all union elections be organized and certified by the National Electoral Council (Consejo Nacional Electoral,CNE), a public authority. This mandatory oversight of union elections violates international standards, which guarantee workers the right to elect their representatives in full freedom and according to the conditions they determine.
·Denied unions which do not receive state approval of election results the right to bargain collectively;
The government has refused to bargain collectively with established unions on the grounds that they failed to hold state-certified elections. While in practice, there is a clear need for union elections to be held, such refusals by the government to bargain collectively pending state approval of elections violate the right of workers' organizations to bargain collectively to defend the interests of their members.
In the public sector alone, more than 250 collective bargaining agreements are reported to have expired while unions were waiting for the CNE to approve their requests to hold elections and certify their election results. The number of collective bargaining agreements plummeted in past years-from 854 in 2004 to 538 in 2006-in part because the Ministry of Labor blocked collective bargaining projects of established unions that had not held CNE-certified elections.
·Undermined workers' right to freely join the labor organization of their choosing by discriminating against established unions linked to the political opposition;
The government has exploited the requirement that existing unions must hold routine elections to discriminate against public sector unions identified with the political opposition. Bypassing established unions on the grounds that they have failed to hold state-certified elections, the government has promoted and negotiated with new, pro-government unions that are exempt from electoral restrictions when first formed. This has created strong incentives for workers to switch labor organizations and join the new organizations preferred by the government.
In one prominent case in 2004, the CNE ordered the largest public health workers' union to stop its elections the night before the vote. The union proceeded to hold the election without incident, but the CNE did not recognize the results for 17 months. While waiting for CNE approval, the Ministry of Health signed a collective bargaining contract with a newly formed, pro-government, minority health federation that had never held elections.
·Undercut the right to strike by banning legitimate strike activity and engaging in mass reprisals against striking oil workers;
In response to the oil strike of December 2002, the government declared the actions of thousands of striking oil workers illegal, fired close to half of the workforce, and ordered private oil companies not to hire the dismissed workers, although the ILO, the highest international authority on labor rights, found that the workers had engaged in legitimate strike activity.
The ChAvez government has further threatened workers' rights by supporting the creation of alternative labor organizations. One of the central initiatives of the ChAvez presidency has been the proposed creation of local-level councils, including workers' councils. Workers' councils potentially offer possibilities for greater workplace self-management, but as currently proposed, they would be granted ambiguous powers to prevent "destabilizing" labor activity-possibly including legitimate strikes-and would potentially be allowed to negotiate directly with employers on labor issues, undermining the right of established workers' organizations to bargain collectively.
The ChAvez government has also strongly endorsed labor cooperatives, which can help informal workers form associations to improve their economic well-being. But cooperative workers are exempt from national labor laws. As a result, the government's support for cooperatives without the extension of protections for their workers has contributed to the expansion of a class of vulnerable workers whose rights to organize and bargain collectively are left unprotected.
Workers' rights have been further jeopardized by the lack of effective judicial protection against government violations of workers' right to organize. Venezuelan law grants international human rights treaties and conventions constitutional status and precedence over domestic norms, but the Supreme Court has repeatedly failed to uphold international standards on freedom of association. Instead, the court has permitted the government to control union elections, block legitimate labor organizing, and retaliate against workers for their labor activities.
After supporting grave violations of workers' right to organize and after backing unprecedented state interventions in union affairs, the ChAvez government has promised to take steps that could begin to restore workers' right to freedom of association. In 2007, ChAvez actively campaigned for a failed constitutional reform package that would have permitted state authorities to assist in union elections only at the request of the union or a court. Likewise, the government has promised for several years to reform the relevant labor and electoral laws to restrict state interference in union elections. Yet at the time of this writing, these proposals remain under discussion by the National Assembly and CNE. Until these and other necessary reforms-discussed below-are instituted, routine violations of workers' freedom of association will continue and labor rights will not be secure.
Freedom of Association under International Law
The right of workers to organize is clearly established under international human rights law. The International Covenant on Civil and Political Rights (ICCPR) states that "everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests." Likewise, the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the "right of everyone to form and join the trade union of his choice." The American Convention on Human Rights also provides for the right to associate freely for labor purposes.
These instruments, to which Venezuela is party, clearly establish the right to freedom of association within the context of internationally protected labor rights. As the Inter-American Court has held, "in labour union matters, freedom of association consists basically of the ability to constitute labour union organisations, and to set into motion their internal structure, activities and action programme, without any intervention by the public authorities that could limit or impair the exercise of the respective right…. in trade union matters, freedom of association is of the utmost importance for the defence of the legitimate interests of the workers, and falls under the corpus juris of human rights." The conventions, recommendations, and jurisprudence of the ILO flesh out this right.
The ILO Declaration on Fundamental Principles and Rights at Work recognizes freedom of association as one of the "fundamental rights" that all ILO members are obligated "to respect, to promote and to realize." Venezuela has ratified both of the ILO's core conventions on freedom of association-ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise and ILO Convention No. 98 concerning the Right to Organise and to Bargain Collectively-which set forth the key elements of this fundamental right.
The Right to Freely Elect Representatives
The right of workers to freely elect their representatives is a central component of freedom of association. Article 3 of ILO Convention No. 87 states, "Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes."
The prohibition on state intervention in union elections exists to guarantee the impartiality and objectivity of electoral procedures. As the ILO has cautioned, "Any intervention by the public authorities in trade union elections runs the risk of appearing to be arbitrary and thus constituting interference in the functioning of workers' organisations, which is incompatible with their right to elect their representatives in full freedom." It is therefore "the prerogative of workers' … organizations to determine the conditions for electing their leaders."
States can play only highly circumscribed roles in union elections. For example, if an internal union dispute ensues between rival groups of union leaders, "competent judicial authorities" can supervise a trade union's elections. A trade union registrar, independent of state authorities and subject to appeal, can also catalog election results. However,the ILO makes clear that "[t]he situation is different … when the elections can be valid only after being approved by the administrative authorities," finding that, "the requirement of approval by the authorities of the results of trade union elections is not compatible with the principle of freedom of election." Similarly, the ILO has held that the "determination of conditions of eligibility for union membership or union office is a matter that should be left to the discretion of union by-laws" and that, therefore, legislation that limits the maximum tenure of trade union officers and re-election runs contrary to ILO Convention 87.
The Right to Bargain Collectively
The right to bargain collectively with employers is an essential component of freedom of association. ILO Convention No. 98 establishes that governments have a responsibility to promote and encourage collective bargaining. Given the centrality of collective bargaining to the ability of workers to defend their interests in the workplace, the ILO has found that "public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof."
Collective bargaining takes a wide variety of forms across countries. The basic international standard establishes that if a union represents the absolute majority of workers in a workplace, it is incumbent on the government authorities to ensure "the employer's recognition of that union for collective bargaining purposes." In the case that no union commands the majority, "collective bargaining rights should be granted" to minority unions, at least on behalf of their members.And according to the ILO, even in cases in which majority organizations enjoy exclusive bargaining rights, minority unions should "at least … have the right to speak on behalf of their members and to represent them." Venezuelan law, as discussed below, requires that a union enjoy majority support before gaining collective bargaining rights.
However, the ILO does not establish a specific method most appropriate for determining the most representative labor organization in a workplace. Instead, the ILO sets forth criteria for making such a determination, stating that it must be based on "objective and pre-established criteria so as to avoid any opportunity for partiality or abuse" that could arise from governmental discretion. 
The Right to Join the Organization of Choice
Freedom of association requires that workers have the right to join the labor organizations of their choice. They have the right to form multiple trade union organizations within a given workplace or to choose to unite to form a single organization. The ILO has observed that in order to protect these rights, governments must treat labor organizations with complete impartiality so as not to influence the choice of workers. The government should play no role either to support or obstruct the formation of new organizations or otherwise interfere in the union formation process. Explicit state support of or preferential treatment for a particular organization risks influencing workers to select or form the organization favored by the government, rather than the one best suited to defend their occupational interests.
The Right to Strike
International law protects the right to strike. The ICESCR requires parties to the covenant to ensure "the right to strike." The ILO further explains that the "right to strike is an intrinsic corollary of the right to organize protected by Convention No. 87."
The ILO has held that governments can ban strikes in only very limited circumstances, such as for a limited time for "an acute national emergency" and in "essential public services"-defined as a service whose stoppage poses "a clear and imminent threat to the life, personal safety or health of the whole or part of the population." These exceptions, however, are narrowly defined so as to prevent overly broad restrictions on the right to strike.
To guarantee the right to strike, workers must be protected against reprisals. In particular, the ILO has noted, "The dismissal of workers because of a strike constitutes serious discrimination in employment on grounds of legitimate trade union activities and is contrary to Convention No. 98." Dismissals of strikers on a large scale, therefore, per se "involve a serious risk of abuse and place freedom of association in grave jeopardy." Likewise, refusing to reemploy workers as a result of their strike participation also violates their right to freedom of association. The ILO has noted that hiring discrimination-"blacklisting"-because of protected strike activity constitutes "a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measure to combat such practices."
Freedom of Association under Venezuelan Law
The Venezuelan constitution guarantees freedom of association for workers. Venezuela also gives constitutional rank to international law; as such, no domestic laws can violate ILO conventions and jurisprudence.
Nonetheless, Venezuelan labor law falls short of international standards, and the 1999 Constitution further restricted the right to freedom of association by mandating that state electoral authorities intervene in internal union elections, prohibiting the reelection of union leaders, and imposing term limits for union leaders. Venezuelan law makes the right to bargain collectively contingent on periodic union elections held according to state-specified rules, allows only majority unions to bargain collectively, grants government authorities broad discretion to select collective bargaining partners, and does not allow for strikes grounded in demands concerning the government's social or economic policy.
The Right to Freely Elect Representatives
Venezuelan law assigns the National Electoral Council (Consejo Nacional Electoral, CNE), an administrative body, a central role in internal union elections, including the certification of election results. Although ostensibly intended to guarantee the transparency of union elections, the required intervention of the CNE denies workers one of the most basic safeguards of union autonomy: the right to elect their representatives in full freedom.
The 1999 Constitution mandated the alternation of union leaders at least every three years. The government argued that the provision was necessary to ensure that union leadership elections were held in practice and that union leaders did not monopolize power. However, the ILO has noted that decisions as to the alternation of trade union leadership must lie exclusively with workers' organizations and their members and that "provisions restricting or prohibiting the re-election of trade union officers are a serious obstacle to the right of organizations to elect their representatives in full freedom."
To oversee union elections, the constitution assigned the CNE the responsibility to "organize union elections under the terms established by law." The constitution granted the CNE control over the elections of all trade unions and professional organizations, regardless of whether the organization asked for state assistance.
The precise role of the CNE in the organization of union elections is established in the Statute on the Election of Union Leadership of 2004. The CNE is assigned detailed functions to regulate electoral processes from beginning to end. For instance, it authorizes the convocation of elections, dictates measures to guarantee impartiality, suspends elections when irregularities are suspected, and certifies election results. The ILO has clearly stated that the 2004 statute adopted by the CNE "constitutes a serious breach of Article 3 of Convention No. 87 and should be promptly amended so as to bring it into full conformity with Convention No. 87."
The mere existence of a government body that is required to administer and certify the validity of all union elections violates workers' right to hold elections in full freedom and without state interference. The detailed and binding rules for the intervention of the CNE at all stages of union elections undermine workers' prerogative to determine the conditions for electing their leaders, and constrain their right to organize the internal administration of their organizations. Moreover, although unions can appeal administrative decisions of the CNE to electoral and constitutional courts, the appeal process can drag on indefinitely. During this time, the validity of the unions' electoral processes is in doubt and, as a result, unions are barred from exercising their collective bargaining rights, in violation of international standards.
The government has provided three contradictory defenses of the role assigned to the CNE. First, the Venezuelan government has argued to the ILO that the CNE's responsibility to oversee union elections is consistent with international law because the CNE ensures the impartiality, reliability, and transparency of elections. The government defends state oversight as a needed antidote to an entrenched and monopolistic union leadership, which would not hold free and fair elections on its own accord. As the former CNE Director of Union Affairs Aníbal Galindo told Human Rights Watch, "Venezuela is the only country in the world where we had to create rules to protect freedom of association not from the state but from the union leadership itself."
Despite the government's stated aim of improving union democracy, under international law the organization of union elections must be exclusively a matter for the unions concerned. Moreover, the optional participation of the CNE in union elections could achieve similar ends: if workers had concerns about upcoming electoral processes or suspected wrongdoings, they could request CNE assistance or appeal to a judicial authority.
Second, the Venezuelan government has argued that the role assigned to the CNE is compatible with international law because the CNE "functions as an electoral tribunal." The government has posited that the CNE enjoys full independence from executive power, given that it is part of a separate branch of government (the electoral branch). Moreover, the directors of the CNE are appointed by the legislature, as are Supreme Court judges, and the decisions of the CNE can be appealed in a court of law.
The ILO recognizes a role for the judiciary in union elections only in the event that elections results are challenged or otherwise disputed, not in the everyday oversight and certification of all elections. According to the ILO, the intervention of an independent judiciary is necessary in such cases to ensure "impartial and objective procedures." Furthermore, the ILO has determined that the CNE is not an independent judicial body. The CNE does not function like a judicial tribunal, with the full guarantees of defense and due process necessary to adjudicate disputes. Its members are not judges, although constitutionally they are supposed to be appointed through similar proceedings. In 2003 the government disregarded the nominating procedures established in the constitution and allowed the Supreme Court to designate the directors of the CNE, raising additional doubts about the CNE's autonomy.
Finally, the government has defended the faculties assigned to the CNE on the false premise that CNE participation in union elections is optional. Relying on an opinion from the Ministry of Labor Legal Advisor's Office from 2003, the government told the ILO that "trade union organizations are independent and free to organize and carry out their electoral processes and that the participation of the National Electoral Council is optional, i.e. it only acts at the express request of the trade union organizations." Likewise, Labor Minister Roberto HernAndez stated in June 2008 that the CNE had dictated new norms to bar state interference in union elections, however at this writing, the CNE had not published a new statute and the ILO continued to criticize that the government "had not taken steps to eliminate the interference of the National Electoral Board in trade union elections."
In practice, government authorities, including the CNE and the Ministry of Labor, have treated CNE certification of elections as mandatory and binding. Aníbal Galindo told Human Rights Watch, "Article 293, Numeral 6 reads that the CNE will organize the elections of unions, professional organizations, and political organizations under the terms established by the law. Period. Only in the case of clubs, such as private clubs, is it the case that the organization requests CNE assistance.… The Constitution clearly states the [CNE's] faculty to organize allunion elections." The ILO has repeatedly requested that the Venezuelan government amend the relevant laws to expressly establish that CNE intervention is optional.
The Right to Bargain Collectively
Venezuelan law commits the state to promote collective bargaining and to establish the necessary conditions to favor collective bargaining, yet the law, both on paper and in its application, falls far short of international standards and fails to provide an adequate legal framework for collective bargaining.
Labor laws bar unions from contract negotiations if elections are not held at least every three years and, as discussed, require such elections to be both CNE organized and certified. Only unions representing the absolute majority of workers are granted bargaining rights. And government authorities enjoy virtually unfettered discretion in resolving disputes over a union's majority status.
If CNE-organized and certified union elections are not held within statutory limits, union leaders are not allowed to exercise functions beyond simple administration. That includes not being allowed to represent workers in negotiations. This condition, referred to as "electoral default" (mora electoral), amounts to a suspension of a union's collective bargaining activities. Given administrative delays in election organization and certification by the CNE, the effect has been to prevent legitimate unions from exercising their right to collective bargaining for extended periods of time.
The paralysis of collective bargaining with established unions, pending CNE organization or certification of elections, can also create strong incentives for workers to transfer their membership to alternative unions. The ILO has found that the refusal to recognize the leaders of certain organizations in the performance of legitimate activities "may be an informal way of influencing the trade union membership of workers.… [A]ny discrimination of this kind jeopardizes the rights of workers set out in Convention No. 87, Article 2." As the cases presented below illustrate, the Venezuelan government's actions seem to have contributed to shifts in worker affiliation.
Venezuelan labor law further violates international standards by failing to provide collective bargaining rights for the most representative union, where no majority union exists, and by allowing the government wide discretion in resolving which union holds majority status. The ILO has urged the Venezuelan government to amend its labor law to comply with international standards in this area.
The broad discretion allowed Venezuelan authorities in determining which union represents a majority of workers is facilitated by ambiguous procedures provided in Venezuelan law. When a ministry grants the request of workers' organizations to convene a sector-wide meeting to negotiate employment terms and conditions for the sector, the relevant minister must simply verify, "in the judgment of the Minister," the majority of the unionized workers in the branch of activity at issue. The opinion of the minister is hardly an impartial standard. And until 2006, the government had no rules for determining which union enjoyed majority status for the purposes of lower-level collective bargaining; the law was simply silent.
Revisions to the labor law from 2006 provided little improvement. They established that the labor inspector must hold a referendum with relevant workers to determine the majority union entitled to bargain collectively, when there is a dispute. However, there is a serious loophole in the law. When "it is not possible or proves inconvenient" to hold a referendum, the inspector can use "any other verification mechanism as long as it guarantees impartiality and confidentiality."
In practice, referenda are often costly and rarely conducted and, as a result, no consistent criteria exist to determine the majority union or to guarantee impartiality in the determination. As a result, the government exercises wide discretion both in selecting unions to participate in sector-wide standard setting and in conferring a union majority status for collective bargaining. Its decisions have thus appeared, at best, arbitrary and, at worst, discriminatory on political grounds.
The Right to Strike
Venezuelan law, while guaranteeing the right to strike, does not allow for a critical type of strike: strikes grounded in demands concerning government social and economic policies. This limitation removes an important way for workers to seek changes to broad conditions that affect their rights and livelihoods. The ILO has recognized that workers must be able to use strike action not only to promote positions related to better working conditions or collective occupational claims, but also in efforts to seek changes to economic and social policy questions that concern workers.
Organized Labor Before ChAvez
For decades prior to ChAvez's accession to power, Venezuelan labor leaders portrayed the workers' movement as a model of "responsible" trade unionism. The main workers' confederation, the Confederation of Venezuelan Workers (Confederación de Trabajadores de Venezuela, CTV), worked closely with the dominant Democratic Action party (Acción DemocrAtica, AD) to moderate labor conflict and contribute to the nation's political and social stability.
Yet, while limiting labor conflicts, the labor movement was accused by critics of political cooptation, corruption, and fraudulent leadership elections. In particular, they pointed to the CTV's support of "neoliberal" labor legislation and privatizations in the 1990s as evidence of the subordination of workers' interests to business and political demands.
Observers also questioned the procedures used by the CTV, and many other unions, to select their representatives. The CTV granted seats on its executive committee to labor and political party leaders in proportion to the strength of their respective parties. Confederation and party leaders agreed on a unified slate of candidates, which was then ratified every five years through an up-or-down vote at the CTV's national congress. Likewise, some base unions, federations, and confederations failed to hold regular leadership elections or used internal procedures that gave workers little voice in the electoral process.
Close coordination between the main political parties and the CTV was largely thought to have limited labor conflict prior to the ChAvez presidency. Moreover, though the right to strike was guaranteed by Venezuelan law, the state repeatedly violated this right by taking measures to limit legitimate strike activity in the 1990s that frequently contravened both domestic and international law, such as the use of return to work orders, the deployment of the military in labor conflicts, and the reliance on decrees to declare strike activity illegal.
Labor legislation predating the ChAvez government created additional obstacles to worker organizing. As described above, strikes based on discontent over government social and economic policies were not permitted by Venezuelan law. Likewise, rules on collective bargaining passed in 1997 introduced the requirement that a trade union represent an absolute majority of workers to negotiate a collective agreement and granted the government sweeping discretion to determine which union held such status. These rules denied collective bargaining rights to the many workers whose unions fell short of representing a majority and facilitated government favoritism in designating the union with bargaining privileges. Despite two major reforms to the labor law during his time in office, the ChAvez government has not altered these restrictions on the right to strike and collective bargaining and has imposed further limitations on workers' right to organize.
Electoral Interference and the Denial of Collective Bargaining Rights
Mandatory state organization of union elections, as described above, has resulted in the routine violation of the rights of workers to freely elect their representatives and to bargain collectively. The state has regularly suspended, delayed, and failed to certify union elections. As a result, more than half of unions in Venezuela are currently in electoral default and thus barred from bargaining collectively.
The resulting paralysis-in addition to constituting a suspension of union activities in violation of workers' right to freedom of association-opens the door to government favoritism and manipulation contrary to international law. In a common pattern, while established unions are deemed to be in electoral default and blocked from collective bargaining, the government has promoted and opened negotiations with new, pro-government unions. These new unions benefit from a grace period when they can bargain collectively without having held leadership elections. In this way, the government creates strong incentives for workers to join these alternative, pro-government unions.
The Confederation of Venezuelan Workers (CTV)
The CNE's delay in ruling on the validity of the CTV's elections-taking four years to declare the elections void-undermined the ability of the confederation to represent workers in national and international labor discussions during that time. Meanwhile, the government signaled its support for the formation of a new pro-government confederation, motivating workers and unions to rethink their choice of organization and abandon the established CTV.
Founded in 1936, the CTV has long been the largest confederation of workers in Venezuela. As of 2001, it represented over 65 percent of unions.
In December 2000 the National Assembly convened a national referendum to determine whether workers' federations and confederations should be required to renew their executive committees. All citizens voted on whether to remove existing trade union leaders from office and whether to require workers to "totally replace the union leadership within the next 180 days" in elections supervised by the CNE.
The government stated that the purpose of the referendum was to ensure that the provisions of ILO Convention No. 87 were "complied with in practice." According to the government, a popular referendum was necessary because "the traditional union leadership has embedded and strengthened itself in a way that prevents its removal through normal means by the exercise of the rights of the respective workers."
While all confederations would be required to hold new elections if the referendum passed, ChAvez made it clear that the referendum was an attack on the CTV in particular: "We are going to demolish the CTV.… And what is the next step? The referendum."Such threats were not isolated incidents and, as the ILO noted, "Since it came to power, the government has pursued a policy of denigrating and slandering the Venezuelan Workers' Confederation and its leaders."
The referendum was a clear attempt by the government to intervene in union affairs. The proposed indiscriminate suspension of union leaders, their replacement through elections supervised and certified by an electoral council set up by the government, and the principle of alternation imposed so that union leaders would not be reelected restricted the right of workers to freely elect their representatives and to have the conditions of such elections determined through union bylaws. The ILO noted that the union referendum constituted "a dangerous precedent with respect to a policy of state intervention" and ILO Secretary General Juan Somavía wrote to the CNE asking that the referendum be cancelled.Even so, in November 2000, the Supreme Court rejected an appeal by trade union representatives and civil society organizations to cancel the referendum.
On December 3, 2000, the union referendum was held and passed, though turnout was just 23 percent. In light of the referendum result, all confederations in Venezuela were required to hold new elections. The CNE issued a special statute, which detailed an expansive and mandatory role for the CNE in the organization of the new elections (precursor of the Statute on the Election of Union Leadership of 2004, described above).
On October 25, 2001, the CTV participated in the state-supervised election process. The CTV's internal electoral commission ratified that Carlos Ortega was selected as president. However, workers and other candidates who participated in the elections alleged electoral fraud.
The workers alleging fraud appealed to the Supreme Court, demanding new elections. The court declared their request inadmissible because an electoral appeal before the CNE was underway and, only after an examination of the voting by the CNE could new elections be called. As such, the court urged the CNE to complete its examination of the validity of the CTV elections.
The CNE declined to rule on the results of the CTV elections, however, alleging that the CTV withheld election materials necessary for it to certify the results. Finally, in January 2005, the CNE declared the elections null and void, never having received the electoral documents it claimed it needed to assess the allegations of fraud.
With the election results uncertified, the government refused to recognize the CTV executive committee, arguing, "The State has no legal grounds for recognizing an executive committee of the CTV which has not been able to demonstrate to the public registrar of trade unions the number of votes obtained by each of the alleged members of the above board." On this basis, in 2002, the government violated Venezuelan law by refusing to call national tripartite discussions with the CTV-which was the most representative labor organization, according to CNE statistics-to review government-proposed minimum wage increases. The Ministry of Labor, instead, decreed a minimum wage increase in April 2002 without consulting with the CTV or any other labor representatives.
Commenting specifically on Venezuela, the ILO, however, stressed that the most representative labor confederation, which was the CTV in 2002, "should be consulted at length by the authorities on matters of mutual interest, including everything relating to the preparation and application of legislation concerning matters relating to them and to the fixing of minimum wages." It asked the government "to duly respect and consult it on all draft bills relating to labor issues and abide by [the CTV's] status as the most representative trade union confederation."
Even accepting that there were genuine concerns about the results of the CTV elections, including by members of CTV affiliated unions, the ILO pointed out that the activities and recognition of the confederation-particularly its right to participate in tripartite discussions as the most representative worker association-should not have been suspended pending the outcome of judicial proceedings. By denying the confederation the right to engage in union-related activities, including tripartite discussions, and by failing to recognize the CTV executive committee for over four years, the government created strong incentives for workers and affiliated unions to desert the CTV for a confederation recognized by the government.
Politics most likely influenced the government's decision not to recognize the CTV's executive committee. For example, ChAvez made clear that if a pro-government candidate had won the CTV elections, the treatment of the confederation would have been different. ChAvez had publicly promised the pro-government candidate, Aristóbulo Istúriz, "a seat at Miraflores [the presidential palace]" if he were to have won the election.
Government antipathy toward the CTV intensified following the involvement of some CTV members (including CTV president Carlos Ortega) in the coup attempt of April 2002 and the oil strike that nearly crippled the economy in December 2002 (see below).
At the same time, the government vocally supported the creation ofa pro-government confederation called the National Union of Workers (Unión Nacional de Trabajadores, UNT). As ChAvez said at the one-year anniversary of the UNT in 2004:
This is much more important [than the Constituent Assembly] because it was not a group of 135 people in an Assembly, but rather the workers' movement, confronting coup-makers, fascists, businessmen, anti-nationals and apartheids, that achieved as a result a demolished CTV and a UNT each day stronger and each day freer.
While the government denounced the CTV executive committee, the UNT immediately received favorable treatment. Breaking from tradition, the government refused to appoint the CTV secretary general as labor's representative at meetings of the ILO beginning in 2002 on the grounds that its executive committee was illegitimate. In May 2003 the government accredited the two-month-old UNT to represent Venezuela at the ILO's annual meeting. The CTV contested the appointment to the ILO Credentials Verification Commission, claiming that it was the country's most representative labor organization and therefore should represent labor. The ILO questioned the criteria put forward by the government to determine the most represenative labor confederation-which considered the number of collective bargaining agreements signed by the confederations with the government, rather than the number of members or unions affiliated-and found that "they lacked the objectivity necessary to be considered valid" and recommended that the government in the future use a predetermined method "which raises no doubts as to workers' ability to act independently of the government." Since 2005 the government has allowed the UNT and the CTV to jointly represent labor before the ILO.
Many workers and unions did elect to voluntarily leave the CTV because of the role some members of the confederation played in the coup attempt of 2002, as well as its support for the oil strike of 2002-2003 along with the main business chamber. However, it was by no means clear that the UNT commanded a majority of support only months after its formation.
Government favoritism toward the UNT is also suggested by the shift in collective bargaining agreements signed by public sector unions with the government. According to the Ministry of Labor, three-quarters of all collective agreements signed in the public sector in 2003 were with unions affiliated with the UNT; under a quarter were with the CTV, representing a significant decline from the 70 percent signed with the CTV in 2002.In 2004, the number of unions in the public and private sector not affiliated with a confederation reached one-third, while the UNT had 45 percent of affiliations and the CTV had 22 percent. As the ILO suggested, "one of the possible reasons for the drastic changes reported may be that CTV's capacity for negotiation has been limited by the systematic attacks to this centre." Union leaders from the CTV told Human Rights Watch that the government has regularly refused to re-negotiate expired collective agreements with unions affiliated with the CTV. As the following cases illustrate, the government often has cited delays in holding elections as justification for excluding established unions from collective bargaining agreement negotiations, while opening negotiations with new, pro-government unions exempt from electoral requirements when first formed.
Health Workers (SUNEP-SAS)
Public health workers belonging to the oldest and largest public sector health union in Venezuela were denied the right to bargain collectively in 2004 due to the CNE's 17-month delay in certifying the union's election results. While the union was waiting to receive CNE certification, the government negotiated a collective agreement with a newly formed, pro-government federation that had never held leadership elections and banned the more representative union from participating in the negotiation.
Founded in 1971, the Single National Union of Public, Professional, Technical and Administrative Employees of the Ministry of Health and Social Development (Sindicato Único Nacional de Empleados Públicos, Profesionales, Técnicos, Administrativos del Ministerio de Salud y Desarrollo Social, SUNEP-SAS) represents over 30,000 workers across the country and is a CTV affiliate. SUNEP-SAS has historically administered the collective bargaining contract for the public health sector.
In 2004 SUNEP-SAS planned to hold elections to renew its leadership, which had last been elected in 2001. The CNE approved the electoral project, and the elections were scheduled for November 30, 2004.
At 7:40 p.m. on November 29, 2004, the leaders of SUNEP-SAS received an administrative order from the CNE to suspend the elections scheduled for the next day. According to the CNE, a group of SUNEP-SAS workers had filed a complaint to the CNE about irregularities in the electoral process, so the CNE issued an injunctionto postpone the elections until the dispute was resolved.
SUNEP-SAS decided to proceed with the elections because the union had already expended considerable energy and resources to install voting equipment in the union's 26 chapters across the country. The elections occurred without incident or further challenge. Nonetheless, the CNE did not certify the results and did not respond to SUNEP-SAS's appeal requesting reversal of the election suspension order and recognition of the election results. SUNEP-SAS's appeal to the Venezuelan courts was also unsuccessful, being ultimately dismissed by the Supreme Court on the basis of alleged procedural irregularities.
Meanwhile, SUNEP-SAS was denied the right to bargain collectively. In July 2005 the Ministry of Labor rejected a previous request dating from 2002 from SUNEP-SAS to convene contract negotiations. SUNEP-SAS was also denied its right under Venezuelan law to represent workers in August 2005 sector-wide contract discussions for public health workers, convened by the Ministry of Health. The ministry met instead with the newly formed National Federation of Regional, Sectoral and Allied Trade Unions of Health Workers (Federación Nacional de Sindicatos Regionales, Sectoriales y Conexos de Trabajadores de la Salud, FENASINTRASALUD), to discuss a draft labor agreement proposed by the latter.FENASINTRASALUD had formed as a splinter group of SUNEP-SAS in 2004 and was affiliated with the UNT. It had never held leadership elections. In contrast, SUNEP-SAS claimed to represent the majority of workers-a matter not contested by the government-and had held elections in accordance with its internal statutes. Yet the ministry ignored the legal requirement to verify that the worker organizations with which it met for contract discussions represented the majority of unionized workers in the sector. (The issue of majority versus minority representation in collective bargaining is discussed further below.)
Defending the denial of SUNEP-SAS participation, the Ministry of Labor wrote, "[T]he union file shows there have been no union elections since 2001, as a result of which elections are overdue, which is contrary to law and to genuine freedom of association." The Ministry of Labor approved the health sector contract negotiated with FENASINTRASALUD on May 12, 2006.
On May 11, 2006, the CNE finally certified the elections held by SUNEP-SAS in November 2004. However, by then, contract negotiations had already concluded for the health sector. SUNEP-SAS suffered significantly from the impact of its exclusion from these sector-wide discussions.
Under Venezuelan law, a workers' organization that has not participated in such sector-wide negotiations is prohibited from submitting complaints on behalf of the workers covered by the contract. As a result, even after SUNEP-SAS's elections were certified, the National Labor Inspectorate blocked SUNEP-SAS from presenting demands for health workers. The organization's ability to defend the rights of the workers it represents was thus severely limited, in violation of international standards that provide that presenting "a list of dispute grievances is a legitimate trade union activity" and that "[t]rade unions should be free to determine the procedure for submitting claims to the employer."
The Ministry of Health also refused the request by the SUNEP-SAS leadership for trade union leave, noting that the union's collective workplace contract granting such leave was superseded by the sector-wide agreement to which the organization was not party. SUNEP-SAS officials were thus denied their right to leave, which reduced the time they could spend to organize union activities and violated their right to "be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions."
As the ILO found, the decision to immediately negotiate with a pro-government federation and deny SUNEP-SAS collective bargaining rights, the right to present demands, and union leave for officials strongly suggested acts of favoritism on the part of the government.The ILO urged the government "to put an end to the acts of discrimination against SUNEP-SAS and its officials, [and] to guarantee its rights to trade union leave and to collective bargaining."
Nutrition Workers (SUNEP-INN)
CNE delay in approving and certifying the elections for the public sector nutrition workers' union similarly denied union representatives the right to represent their members in sector-wide collective bargaining agreement negotiations.
The Single National Union of Public Employees of the National Institute for Nutrition (Sindicato Único Nacional de Empleados del Instituto Nacional de Nutrición, SUNEP-INN) was founded in 1971 to represent nutrition workers in Venezuela; it is the only union in the sector. In December 2004 SUNEP-INN requested to hold elections, but it took almost two years, until November 2006, for the union to get its elections first approved and then certified by the CNE. SUNEP-INN blamed the CNE for the delay, while the CNE claimed that SUNEP-INN failed to submit the necessary documentation, specifically a list of members.
While stuck in exchanges with the CNE, in August 2005 SUNEP-INN officials requested to participate in the contract discussions for the health sector, convened by the Ministry of Health at the request of FENASINTRASALUD (see above). As with SUNEP-SAS, SUNEP-INN's request to participate in the discussions was denied. The Ministry of Labor found that SUNEP-INN had not held elections and thus "the leadership of the union, is only allowed to complete basic acts of administration.… [T]hey will not represent their members in negotiations and collective labor conflicts." As a result, the negotiations proceeded with no representation for nutrition workers.
Like SUNEP-SAS, SUNEP-INN suffered significant negative consequences from being barred from the sector-wide negotiations. For example, largely on the grounds that SUNEP-INN had not participated in the contract talks and was not a party to the agreement, the Ministry of Health denied SUNEP-INN representatives funds for union activities established under the public health sector contract, making it more difficult for SUNEP-INN to organize and defend the rights of its members.
Since 2003 the Venezuelan government has denied the Venezuelan Medical Federation (Federación Médica Venezolana, FMV) the right to negotiate a new collective bargaining agreement for what appear to be political reasons. After the federation lodged a controversial challenge to the legality of the government's health missions, the government refused to negotiate collectively with the organization, citing various justifications. The government argued that because the legislation establishing the doctors' federation runs afoul of international law, the government would no longer bargain with the organization, breaking from past practice established over six decades prior. The government also pointed to the failure of the federation to elect new leaders as further grounds for refusing to bargain, despite attempts by the doctors to hold elections for roughly three years.
The FMV was established in 1942 as part of the Medical Practice Act (Ley del Ejercicio de la Medicina) and now represents over 60,000 doctors. The FMV has the responsibility by law to regulate the medical profession, and the exclusive power to negotiate collective agreements with public and private institutions on behalf of doctors.
Nonetheless, in violation of international law, which requires that workers be allowed to freely choose their representative organization, the Medical Practice Act makes membership in the FMV mandatory for doctors practicing medicine in Venezuela and grants exclusive representation for collective bargaining in the medical sector to the FMV. Further, the ILO has found that "the legislation provides for a single mixed or puppet trade union made up simultaneously of workers and employers … which … raises issues of legitimacy of representation in the collective bargaining process due to a clear conflict of interests."
For over six decades and 37 collective bargaining agreements, however, successive Venezuelan governments, including the ChAvez government, ignored these international law violations and negotiated with the FMV. Problems in the long-standing relationship between the government and doctors erupted in 2003 when the FMV submitted to the labor inspectorate its draft proposal to replace the collective agreements with public health and social security authorities that had expired in 2002. The labor inspectorate accepted the draft collective agreements, but did not respond to the FMV's repeated requests to begin discussions. The government defended the labor inspectorate's decision, citing the shortcomings in the Medical Practice Act.
According to the FMV, the sudden silence came after the FMV challenged the use of uncertified Cuban doctors in the government's Barrio Adentro healthcare program. In 2003 the Supreme Court upheld the FMV's position that Cuban doctors who work in Venezuela must be certified by the FMV.
The Supreme Court decision unleashed numerous government insults on the FMV. For example, then-Labor Minister José Ramón Rivero called the doctors "coup-plotters, antidemocratic, counterrevolutionary, and at the service of the dark ends of North American imperialism."
Due to the government's simultaneous refusal to collectively bargain or to act to bring the problematic legislation into compliance with international law, doctors have been forced to spend several years without a new collective agreement to govern the conditions of their employment. According to the FMV, the delay in negotiations has also negatively affected salaries in real terms and stalled discussions about medical supply shortages, both of which should have been covered by a new collective bargaining agreement.
Commenting on the case, the ILO agreed that the Medical Practice Act fails to conform to international standards but also found that the government's failure to negotiate with the federation violated the doctors' right to collectively bargain. As a result, although the ILO requested that the government amend the offending legislation, it also explicitly requested that, "in the meantime, until such time as it amends the [law at issue]," the government should "promote collective bargaining" with the doctors' federation. At this writing, the government continues to ignore both of the ILO's recommendations.
In the wake of its challenge to the use of uncertified Cuban doctors in the Barrio Adentro healthcare program, the FMV also faced obstacles to holding leadership elections. The FMV claims that it attempted to convene elections seven times since 2004 and filed several appeals but never received approval from the CNE. The CNE alleges that the FMV failed to submit the proper documentation to convene elections. Although the FMV's May 2007 convention to elect a new internal electoral commission, ordered by the CNE, finally paved the way for leadership elections, due to factors unclear to Human Rights Watch, elections have yet to occur at this writing.
Under international norms, a government can unilaterally impose salaries in the public sector in order to address budgetary constraints, though the ILO emphasizes that they "should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period." However, the ILO also adds that authorities "should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants." Faced with strikes by doctors in public hospitals around the country in September and October 2007, ChAvez announced a 60 percent salary increase effective November 1, 2007. ChAvez did not justify the decree by citing budgetary constraints, however. Instead, referring to the FMV's failure to convene elections since 2004, he stated the decree was necessary due to the "problems of legitimacy and quality of those who represent their respective collective bargaining agreement projects, given the expiration of their mandates and absence of previous elections." Facing threats of further unrest by doctors, ChAvez issued a second decree in July 2008 increasing salaries for state doctors by another 30 percent.
The ILO has clearly noted that "[w]orkers' organizations must themselves be able to choose which delegates will represent them in collective bargaining without the interference of the public authorities." It is thus not the role of the government to evaluate the "legitimacy and quality" of those who represent workers in collective bargaining agreement projects. ChAvez's decision to continue to circumvent negotiations, this time citing problems of "legitimacy and quality" of union officials, yet again violates workers' collective bargaining rights.
Government Favoritism and the Denial of Collective Bargaining Rights
In violation of international standards, Venezuelan law does not provide precise and objective criteria to determine the union that represents the majority of workers in the workplace for the purposes of collective bargaining, nor does it allow unions with minority support to engage in collective negotiations, even when no majority union exists. These shortcomings violate the rights of minority unions and afford the government wide discretion to collectively bargain with the union it prefers. As a result, the choice of bargaining partners has often appeared arbitrary and discriminatory.
The cases below show that the Venezuelan government has at times granted exclusive representation to a single, pro-government, and questionably representative union. In doing so, the government has denied even majority organizations their right to collectively bargain and violated workers' right to freedom of association by favoring one union over others, thereby influencing workers to join the government-preferred organization.
Public Sector Workers' Federation (FEDEUNEP)
One of the most prominent examples of government favoritism in selecting a collective bargaining partner involves competing federations of public sector workers. Historically, the National Single Federation of Public Employees (Federación Nacional de Empleados Públicos, FEDEUNEP), which is affiliated with the CTV and unites a variety of public sector unions and federations, administered the collective bargaining contract for public sector workers. However, a schism in 2003among FEDEUNEP executive committee members resulted in the formation of a parallel, pro-government federation. In violation of its legal obligations under Venezuelan law (and reminiscent of its approach towards the rival health sector unions SUNEP-SAS and FENASINTRASALUD, described above), the government negotiated with the new pro-government federation without first verifying that it represented the absolute majority of workers.
Represented by its president, Antonio SuArez, FEDEUNEP attempted to negotiate a new collective bargaining agreement in September 2002.The labor inspectorate rejected the draft agreement after FEDEUNEP failed to submit the amendments requested by the labor inspectorate.
In December 2002, the Ministry of Labor opened contract negotiations with a splinter group of FEDEUNEP leaders, led by Franklin Rondón, a candidate defeated in FEDEUNEP's November 2001 elections. The group used the FEDEUNEP name and logo, though they were not elected FEDEUNEP officials.
In March 2003, FEDEUNEP, led by SuArez, challenged in the administrative court the Ministry of Labor's decision to negotiate with Rondón. The court ruled in favor of SuArez and ordered the ministry to end negotiations with Rondón.
Rondón reacted by forming a parallel federation, the National Federation of Public Sector Workers (Federación Nacional de Trabajadores del Sector Público, FENTRASEP). FENTRASEP gained government recognition within weeks, affiliated itself with the UNT, and resubmitted its 2002 contract proposal under its new name to the Ministry of Labor. The proposal was accepted and the government signed the collective agreement on August 25, 2003.
Despite serious disagreement between FEDEUNEP and FENTRASEP about which federation was most representative, the Ministry of Labor failed to convene a referendum or compare membership lists to resolve the issue.
The Ministry of Labor defended its decision to negotiate with FENTRASEP citing FEDEUNEP's repeated failure to submit the amendments to its draft contracts requested by the labor inspectorate, first in late 2002 and again in 2003, and the failure of FEDEUNEP to appeal the contract rejections. The government's failure to conclude a contract with FEDEUNEP, however, regardless of the reason, does not negate its responsibility under Venezuelan law to establish whether FENTRASEP is the most representative federation before beginning contract negotiations. The government's failure to make this determination and its immediate acceptance of the FENTRASEP contract suggests favoritism on the part of the Ministry of Labor, in violation of international standards.
Airport Workers (SUNEP-Aeropuerto)
In the case of two rival unions at the Simon Bolívar International Airport, the government again favored a pro-government union in the collective bargaining process. The labor inspectorate argued that the established union of airport workers was unable to negotiate due to electoral default, though the union had recently held elections certified by the CNE. Meanwhile, as in the case of FENTRASEP, the labor inspectorate opened negotiations with a newly formed, pro-government union without confirming that the new union represented the majority of workers.
The Single National Union of Public Employees of the Autonomous Institute of the Maiquetía International Airport (Sindicato Unitario Nacional de Empleados Públicos del Instituto Autónomo Aeropuerto Internacional de Maiquetía, SUNEP-Aeropuerto) was founded in 1975 to represent the employees of the Maiquetía International Airport (now the Simon Bolívar International Airport). Since its founding, SUNEP-Aeropuerto had negotiated three collective agreements, and presented its fourth collective bargaining agreement to the labor inspectorate in August 2004.
In 2003, a parallel union formed at the airport, the Single Union of the Independent Workers of the Maiquetía International Airport (Sindicato Único de Trabajadores del Instituto Autónomo Aeropuerto Internacional de Maiquetía, SUTIAAIM), and affiliated with the UNT. In November 2004 SUTIAAIM presented its first collective bargaining agreement proposal to the Ministry of Labor.
Although SUNEP-Aeropuerto's draft contract was still pending, awaiting a response from the labor inspectorate, the labor inspectorate fixed a date in May 2005 to begin negotiations with SUTIAAIM, without determining whether the organization enjoyed majority status. SUNEP-Aeropuerto attended the first collective bargaining meeting as a third party, exercising its right under Venezuelan law to protest the contract negotiations. At the meeting, SUNEP-Aeropuerto claimed that it was the most representative union and thus maintained the right to represent the airport workers in collective bargaining agreement negotiations. The labor inspectorate said it would determine which organization was the most representative within 20 days, but no announcement was ever made.
In July 2005 an administrative court granted SUNEP-Aeropuerto's request for a temporary court injunction, ordering a halt to contract negotiations with SUTIAAIM until the labor inspectorate determined which organization represented the majority of workers, as required by Venezuelan law. Rather than determining majority representation, the labor inspectorate responded to the court order by declaring, falsely, that SUNEP-Aeropuerto was in electoral default and, therefore, without any right to bargain collectively or to object, on behalf of its members, to collective bargaining agreement negotiations with SUTIAAIM. On the basis of the inspectorate's incorrect declaration, the administrative court determined that SUNEP-Aeropuerto's constitutional right to collectively bargain was no longer being adversely affected, and lifted its injunction on September 22, 2005.
Yet SUNEP-Aeropuerto had in fact held valid elections on April 28, 2005, which were certified by the CNE in May 2005. SUNEP-Aeropuerto appealed the administrative court's order. In August 2006 the administrative court reversed its decision and found that SUNEP-Aeropuerto had indeed held elections and that, as such, it had legal standing to submit objections to collective bargaining agreement negotiations. The court ordered the labor inspectorate to resolve the original issue at stake: the determination of which organization represented the majority of airport workers.
However, by the time the court rendered its decision, SUTIAAIM and the labor inspectorate had signed the collective bargaining agreement. The labor inspectorate rejected SUNEP-Aeropuerto's proposal for collective negotiations, and flouted the court order by never determining which of the federations was most representative.
Government Reprisals: The Oil Sector
The Venezuelan government has repeatedly violated the internationally protected labor rights of workers in the state-run oil company, Petróleos de Venezuela, S.A. (PDVSA), by engaging in reprisals in response to legitimate labor organizing, political beliefs, and defense of union autonomy.
The Oil Strike and Mass Firings of 2003
The most brazen of the labor rights violations in the oil sector was the firing of more than 18,000 workers from PDVSA following the oil strike of December 2002.
The strike was the culmination of a struggle for the control of PDVSA. In February 2002 ChAvez had fired the PDVSA president and appointed a new board of directors with ties to his administration. Many PDVSA managers claimed the new company directors were inexperienced political appointees, and called a strike in early April to protest repeated government intervention in the management of PDVSA. In response, ChAvez announced in a live television address that he was firing the top seven PDVSA managers and warned that he had "given clear instructions to the president of PDVSA that anyone who calls for a strike be fired immediately, without any discussion."
The failed April 11 coup brought an end to the strike, but the struggle between the ChAvez administration and PDVSA employees continued through the year. In early December 2002 PDVSA workers and managers launched a second strike-this one part of a general strike called by labor and business leaders-and effectively shut down the country's oil production and export.
Given the severe impact that the strike had on the Venezuelan economy (costing the oil industry alone an estimated US$20 billion), the government was justified in taking steps to limit this damage and ensure the safety of the general public-provided, however, that those steps were fully consistent with international labor rights protections. For example, under international law, "as a possible alternative in situations in which a … total prohibition of strike action would not appear to be justified," the government could have met with striking oil workers and agreed to a minimum level of service that workers would provide during the strike-"without calling into question the right to strike of the large majority of workers"-to ensure the continuation of those "operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear" by the strike. Venezuelan law explicitly provides for such a joint determination by unions and employers regarding the number of workers that must, even when on strike, continue to provide services indispensable for the "health of the population and the conservation and maintenance of machines." The government could also have pressed charges against individual workers suspected of engaging in criminal acts of sabotage.
Yet authorities did not take such steps at the time of the strike. Instead, on December 8, the ChAvez government issued a total prohibition on the strike and ordered all striking workers back to work. Eleven days later, at PDVSA's request, the Supreme Court issued a temporary injunction to halt the work stoppage and ordered all oil workers to obey the government's strike ban and return to work. When the workers refused to return, the government proceeded to summarily fire them en masse.
These mass firings constituted an egregious violation of international and Venezuelan law, which expressly proscribe the retaliatory dismissal of workers in response to legitimate strike activity.
An Illegitimate Strike?
The Venezuelan government sought to justify the mass dismissal of PDVSA workers by arguing that the strike was "illegal" and that, consequently, the strikers were not covered by the prohibition on retaliatory firing. Specifically, the government claimed that the workers' sole objective was "to overthrow the President" and that the work stoppage was thus not so much a strike as an "oil coup."
Government officials argued that the political nature of the strike relieved them of the obligation to follow the procedures established by Venezuelan law to prevent retaliation for legitimate union activity,including the requirements for dismissing workers engaged in labor conflicts and other union-related activities. Under such requirements, the employer must notify the labor inspectorate to seek authorization and present the causes for dismissals of workers who are engaged in union-related activities. Within two days, the dismissed workers must be given the chance to appear in front of the labor inspector to respond to the grounds cited for their dismissals. The government insisted that the "exclusively political nature" of the PDVSA strike also justified workers' immediate and mass dismissal, thereby similarly relieving it of the obligation to follow the procedures established by Venezuelan law for cases of mass dismissals. In such cases, the labor inspectorate must summon the employer, who must present the grounds for dismissals. The labor minister must then review these grounds and, when appropriate "for reasons of social interest," may suspend the dismissals.
The ChAvez government disregarded these procedures. The ministry did not summon PDVSA managers or fired workers; it did not review the grounds for the firings; and it did not suspend the mass dismissals. Since 2003 the Venezuelan government has denied the Medical Federation (Federación Médica Venezolana, FMV) the right to negotiate a new collective bargaining agreement for what appear to be political reasons. According to the nascent National Union of Oil, Gas, Petrochemical, and Refinery Workers (Unión Nacional de Trabajadores Petroleros, Petroquímicos, de los Hidrocarburos y sus Derivados, UNAPETROL), PDVSA never notified the labor inspectorate of the dismissals of workers who had special organizing-related protections, and the labor inspectorate never allowed the workers to challenge the justifications for their being fired.
ChAvez made his support for the mass dismissals clear on national television: "See for yourselves the reasons that the Republic and PDVSA had to fire all the saboteurs, and there are already more than 10,000 because we do not have the luxury to have people like this in the industry."
It is true that, under international law, the prohibition on retaliatory dismissals does not cover strikes that have purely political aims. Such political strikes, according to the ILO, do not fall within the scope of the principles of freedom of association.
Yet, when the ILO reviewed the PDVSA case, it determined that the oil stoppage, while motivated in large measure by political demands, also encompassed a set of demands about the government's economic policies and management of the state oil company. It therefore did fall within the scope of legitimate trade union activity.
As a result, the ILO also rejected the argument that workers' mass dismissal was justified by the strike's political nature and pointed out that in such cases of legitimate organizing activity, "[M]ass penalties for trade union actions are tantamount to abuses, and destroy labour relations." Furthermore, the ILO noted that, "[T]he union officials who organized the work stoppage and the workers who took part in it should not be subjected to reprisals such as detention or dismissal, unless their direct individual involvement in the crimes referred to by the Government (sabotage of computer systems, damage to property, etc.), can be proved."
An Essential Service and a National Emergency?
In addition to claiming that the aims of the oil strike were purely political, the government also sought to justify its response to the work stoppage by arguing that it had paralyzed an essential service and threatened to cause a national emergency. But while international norms permit governments to limit strike activity in essential services and in states of "acute national emergency," the ILO found that the oil strike qualified for neither of these exceptions.
The Venezuelan government argued that petroleum constituted an "essential service," in which a stoppage imperiled the life, health, and public security of the population so as to justify a ban on the strike, in accordance with international standards. The ILO rejected this argument, however, as well as the Venezuelan government's assertions that the PDVSA strike caused such grave economic perils as to constitute an "acute national emergency." The ILO pointed out that the strike was largely peaceful. The ILO determined that the economic damage caused was not so severe as to endanger the population, and further noted that the government's claim to the contrary was belied by the fact that it had never declared a state of economic emergency, as allowed for under the constitution. (The ILO has specifically noted elsewhere thatpetroleum, as well as the production, transport, and distribution of fuel, are not essential public services "in the strict sense of the term" in which a blanket prohibition on strikes is justified.)
Concluding, the ILO noted, "Measures taken to mobilize workers at the time of disputes in services of this kind are such as to restrict the workers' right to strike as a means of defending their occupational and economic interests."
An Adequate Remedy
The lack of administrative review of the mass dismissals from PDVSA by the Ministry of Labor made it particularly critical that the PDVSA employees have the chance to appeal their dismissals in a court of law to ensure an adequate and expeditious remedy for dismissals that violated their fundamental right to freedom of association.
Many PDVSA workers submitted appeals. However, three years later, the courts still had not heard the vast majority of cases (80 percent). The government acknowledged that only 6,195 cases of dismissals had been resolved as of 2005 and the great majority of those "resolved" (6,048) were because the workers concerned had dropped their claims, which the ILO noted may have occurred "precisely because of the excessive delay." The others were declared inadmissible or settled in favor of PDVSA. The extreme delay in resolving the appeals, as noted by the ILO, prevented workers from exercising their rights effectively.
Protection of the right to freedom of association requires that workers who consider that they have been prejudiced against because of their trade union activities have access to redress that is expeditious, inexpensive, and fully impartial. Prohibitions on anti-union discrimination are insufficient if not accompanied by effective appeal procedures to ensure their application in practice.
After the oil strike and subsequent mass dismissals, PDVSA blacklisted the fired oil workers from future employment with PDVSA and its subsidiaries, as we discuss in chapter 3. This blacklisting represented another serious violation of international legal prohibitions on reprisals for legitimate trade union activity.
Although the oil workers had been nominally dismissed for dereliction of duty, PDVSA made clear that they were suspected of far greater transgressions-including criminal acts such as sabotage, coup-plotting, and destruction of property-and therefore could not remain employed in the oil sector. PDVSA's own hiring guidelines from July 2007 (which are still in force, to the best of our knowledge) classified all job applicants listed in the company's database as "the author of an action under investigation-the oil stoppage" as "unsuitable" for hiring. PDVSA also instructed its contractors not to employ the dismissed workers.
Blacklisting workers based on legitimate labor organizing constitutes a serious violation of workers' right to organize. The ILO has held that the refusal to rehire workers due to their organizing-related activities "implies a serious risk of abuse and constitutes a violation of freedom of association"; that "all practices involving the "blacklisting" of trade union officials constitute a serious threat to the free exercise of trade union rights; and that, in general, governments should take stringent measures to combat such practices."
Threats against Political Opponents
Over and above the firings and blacklisting of 2002 oil strike participants, both the president of PDVSA and ChAvez himself have made clear that workers at PDVSA must support the "Bolivarian process," and employment policies have seemed to conform to these government statements.
As discussed in chapter 2, one month before the December 2006 presidential election, Energy Minister and PDVSA President Rafael Ramírez gave a speech to PDVSA employees in which he told workers that those who did not support ChAvez should leave the company. Ramírez referred back to the mass dismissals that followed the oil strike to make clear that his words should not be taken lightly, stating that the company had "removed 19,500 enemies of the country from this business" and was "ready to go on doing it." Rather than denounce his energy minister's overtly discriminatory message, President ChAvez publicly endorsed it, urging its repetition "100 times." ChAvez added that PDVSA workers were part of his political project, and those who were not "should go somewhere else, go to Miami."
International labor standards prohibit political discrimination in access to jobs, but as documented in chapter 2, the statements of Rodríguez and ChAvez translated into PDVSA hiring guidelines contrary to international law.
Firing of a Dissident Labor Leader
The reprisals for union-related activity have not been limited to workers who participated in the oil workers' strike or supported the political opposition. Prominent union leader Orlando Chirino was fired from PDVSA in December 2007, apparently because of his public criticisms of the government's approach to organized labor. Chirino-a veteran labor organizer and outspoken leader of one of the main federations in the oil sector (Sinutrapetrol), as well as an executive committee member of the pro-government National Union of Workers (Unión Nacional de Trabajadores, UNT)-had openly criticized government policies and practices that undermined union autonomy.
Among other issues, Chirino had protested the government's handling of collective bargaining agreement negotiations with the United National Union of Energy, Oil, and Gas Workers (Federación Unitaria de Trabajadores de la Energía, Petróleo, Gas, Similares y sus Derivados de Venezuela, FUTEV), stating that the negotiating committee was handpicked by the government, and led a chorus of workers who demanded that they be allowed to elect their own bargaining representatives. In another controversial position, Chirino advocated that workers abstain in the 2007 referendum on the constitution to protest a government proposal to form workers' councils that he believed would subordinate the labor movement to state control. In more general terms, while being an outspoken advocate of many of the socialist objectives publicly embraced by ChAvez, Chirino insisted that the transformation of the labor movement had to be driven by the workers themselves, rather than being imposed by the government.
Chirino was fired from PDVSA without explanation in December 2007, shortly after the failed referendum on the constitution. Chirino said that in a meeting with the PDVSA directors he was told that his dismissal was due to his opposition to the constitutional reform and to his alleged attempts "to generate instability in the [oil] industry during the months of the collective bargaining agreement negotiations, because I opposed, along with thousands of workers, a negotiating team that no one selected, picked by hand by the Ministry of Labor and the directors of PDVSA."
The summary dismissal of Chirino appeared to violate both international and Venezuelan norms. The ILO has underscored that trade union officials must enjoy adequate protection against dismissal, "based on their status or activities as workers' representatives" so as to ensure that they can perform their trade union duties. The firing of workers for reasons associated with their union membership or activates has also been condemned by the Inter-American Court on Human Rights as a measure which can seriously hinder the organization and activates of labor unions in violation of Article 16 of the American Convention on Human Rights. Under Venezuelan law, as noted above, these protections include a prohibition on firing union leaders without just cause and without previous approval by the local labor inspectorate. However, Chirino claims that he was given no legitimate justification for his firing and no chance to defend his dismissal before the labor inspectorate.
New Workers' Associations: Risks to Freedom of Association
Workers' rights have also been put at risk by the government's promotion of workers' councils and cooperatives. These alternative labor associations could potentially complement and even reinforce efforts to organize. Nonetheless, as outlined below, in large part because of the legal framework through which the government has promoted them, they could also negatively impact the right to freedom of association by restricting and undermining worker organizing and undercutting collective bargaining.
Proposed Legislation on Workers' Councils
A centerpiece of ChAvez's plans for "21st century socialism" is the institution of a variety of councils, including workers' councils. The government first proposed workers' councils in January 2007, stating that their purpose was to promote workplace self-management. Then-Labor Minister José Ramón Rivero explained that the councils would organize workers "to participate in the planning, control, and evaluation of processes." According to the government, the councils would encourage worker participation in decision making, worker consciousness, and ideological formation.
ChAvez included the proposal for workers' councils in his 2007 proposed constitutional amendments and the Ministry of Labor also circulated a draft bill to create workers' councils in July 2007. Despite the failure of the constitutional referendum in December 2007, the government continues to push its workers' council proposal in the National Assembly. In addition, a pilot program to set up workers' councils in over a thousand "social production enterprises," based on the draft legislation, is underway, though its details are as yet unclear.
The proposed legislation creating workers' councils, as well as the pilot program based on the proposal, could significantly undermine the exercise of workers' right to freedom of association. The draft law contemplates the creation of a "union committee" that would be authorized, among other things, "[t]o impede the stoppage or partial or total closure of work centers with clear speculative, destabilizing or political ends." The councils are assigned ambiguous disciplinary powers to sanction what they deem "destabilizing" activity. These provisions are particularly worrisome in light of the government's record of equating legitimate labor organizing activity with destabilization, as seen in the oil sector. The broad and discretionary role of workers' councils to prevent disturbances, work stoppages, or other potentially "destabilizing" activity could easily be abused, with the acquiescence of the government, to curtail legitimate union activities, including strikes or even contentious collective bargaining.
Workers' councils could also be used to circumvent collective bargaining with freely elected unions. While the legislation does not grant workers' councils the power to negotiate collective agreements, it appears to authorize many parallel functions that could potentially be used to replace collective bargaining between employers and trade unions. The law envisions committees within the workers' councils responsible for basic labor issues: wages, social security, health, and workplace conditions. This would create a risk that employers would attempt to "collectively bargain" by reaching agreement on these matters between employers and committees of the workers' councils, bypassing trade unions altogether.
Such direct settlements with workers' councils on specific labor issues would violate workers' right to organize and bargain collectively under international law. The ILO has observed that direct negotiations with workers should only occur in the absence of trade union organizations. In addition, the ILO has added that "[d]irect settlements signed between an employer and a group of non-unionized workers … [do] not promote collective bargaining, … which refers to the development of negotiations between employers or their organizations and workers' organizations." The ILO has also emphasized that direct negotiations with workers "must not prejudice or weaken the position of trade unions, nor weaken the impact of collective agreements that have been concluded."
While there are serious risks in Venezuela's proposed legislation, there are also potential benefits in workers' councils. For example, the ILO has recognized that work councils can be an important first step toward freely established workers' and employers' organizations.
Nonetheless, the Central American experience with solidarist associations underscores the risks in establishing alternative labor organizations, particularly when they lack "guarantees of independence in their composition and functioning." Solidarist associations are, at least in theory, set up for the mutual benefit of workers and employers and are dependent on financial contributions from employers. Their close ties to employers, however, limit the ability of solidarist associations to organize in defense of workers' interests. In a cautionary tale, union membership and the number of collective agreements signed in Costa Rica plummeted after the establishment of solidarist associations in the 1980s. Since then, employers have regularly negotiated direct settlements with solidarist associations, bypassing collective bargaining processes with established workers' organizations, and undermining workers' right to organize and bargain collectively.
Although there are many potential benefits of cooperatives for economic development, cooperatives also threaten to weaken existing unions and undermine workers' right to organize. Employers can deliberately use cooperatives to minimize the number of permanent, direct employees, and create a workforce increasingly dominated by vulnerable workers outside the protections of national labor law, which excludes cooperative workers from its protections.
Cooperatives are small groups of workers-in Venezuela the minimum membership is five-who form associations to share business costs and profits. More precisely, as defined by the ILO, a cooperative is "an autonomous association of persons united voluntarily to meet their common economic, social and cultural needs and aspirations through a jointly owned and democratically controlled enterprise."
Cooperative workers are also not dependent or salaried workers. Instead, they are considered self-employed "associates," rather than "workers," and as such they are not covered by Venezuelan labor legislation applicable to direct "workers," including legal protections for organizing and collective bargaining.
The ILO has generally encouraged the formation of cooperatives to promote sustainable development, generate employment, and improve social and economic well-being. The ILO has emphasized, however, that while cooperatives can expand job opportunities and contribute to development, they are not "workers' associations" within the meaning of international law, with the objective of promoting and defending workers' interests.
Since ChAvez took office, cooperatives have proliferated in Venezuela with the help of government training programs, logistical support, and credits. The 1999 Constitution committed the government to "promote and protect cooperatives." According to the National Superintendence of Cooperatives (Superintendencia Nacional de Cooperativas, Sunacoop), there are now 215,000 cooperatives registered in Venezuela, though only 70,000 are thought to be active. Three-quarters of cooperatives are in the service sector, including commerce, public services, and construction, while less than a quarter are engaged in direct production, such as manufacturing and agriculture.
Government proponents view cooperatives as part of a strategy of "economic democratization" and argue that among their benefits are improved worker well-being, greater integration of marginalized sectors into the formal economy, and in the long-term, a more just distribution of wealth. ChAvez himself has acknowledged that cooperatives have not achieved all these goals, however, and he has called on the government "to discuss the model, because without realizing it, we are reproducing the [capitalist] model that we want to replace."
Likewise, many union leaders and labor experts expressed concern to Human Rights Watch that cooperatives are being used deliberately by some companies, particularly in the public sector, to weaken or even supplant existing unions by replacing permanent, direct employees with cooperative workers, thereby reducing the number of workers with associational and collective bargaining rights under Venezuelan law. Cooperatives have been promoted in companies and industries, such as the state oil and electricity companies, that previously had strong unions and directly employed workers to provide services. For example, the energy minister announced that following the oil strike in PDVSA, "[c]ooperatives will assume all transport, service, maintenance, food, uniforms, tools, and small jobs." PDVSA proceeded to invest heavily in the use of cooperatives.
Similarly, when the mayor of Caracas, Juan Barreto, urged the formation of cooperatives and allowed them to compete for municipal contracts, Caracas street cleaners, who were formerly unionized, were forced to dissolve their existing union and fragment the workers into small cooperatives.
Such large-scale replacement of stable, directly employed workers dilutes the strength of existing unions by diminishing membership and reducing the number of potential union affiliates. It also undermines the rights of new cooperative workers, who in many cases were previously employed as direct, permanent workers to perform the same jobs. These cooperative associates, though not explicitly banned from organizing and bargaining collectively under Venezuelan law, enjoy no legal protections against unjust dismissal or other retaliation for exercising these rights or the right to strike. As a result, companies can legally choose to fire or simply not rehire cooperatives if their workers exercise their right to agitate for better working conditions, including by forming labor organizations or engaging in work stoppages. In addition, cooperatives are typically retained only on short-term contracts, enjoying little job stability and no legal expectation of long-term employment. Therefore, they are particularly vulnerable to such retaliation if they are deemed "troublemakers" as a result of engaging in union activity or (as illustrated in chapter 2), for taking politically controversial stands.
Even if cooperative workers' right to organize was explicitly protected under Venezuelan law and companies refrained from impeding its exercise, the prolific use of cooperatives could continue to violate workers' right to organize. Unless cooperative workers were also clearly granted the right to form organizations jointly with their directly employed counterparts and with workers laboring for other similarly situated cooperatives, established unions of direct workers could still be undermined by the reduced actual and potential membership spawned by cooperative use, and cooperative workers would likely still face obstacles to organizing far greater than those encountered by permanent, direct employees.
Each cooperative is generally small-over 80 percent have fewer than 10 workers-and operates at multiple companies within a relatively short period of time, due to the typically short-term contracts and lack of job stability. This makes it exceedingly difficult for cooperative workers to form a labor association with a critical mass of workers able to articulate meaningful demands with respect to any one workplace. Moreover, Venezuelan law requires a minimum of 20 workers for the formation of an enterprise-level union, and unless this number was reduced, most cooperative workers would be legally barred from organizing themselves into a workplace union.
In its recommendations, the ILO has highlighted that the concept of worker also includes independent or autonomous workers, such that "workers associated in cooperatives should have the right to establish and join organizations of their choosing." The ILO also makes clear that governments must "ensure that cooperatives are not set up for, or used for, non-compliance with labour law or used to establish disguised employment relationships, and combat pseudo cooperatives violating workers' rights, by ensuring that labour legislation is applied in all enterprises." In Venezuela, however, evidence suggests that, in some cases, cooperatives are used precisely to undermine workers' right to organize and bargain collectively. This is particularly true when they are hired, as in the case of PDVSA, to perform jobs previously held by permanent, organized workers, seeming to create the very "disguised employment relationships" condemned by the ILO.
Lack of Judicial Protection of Freedom of Association
The Venezuelan judiciary has repeatedly failed to provide a check on state interference in union affairs. For instance, as we saw earlier, the Supreme Court allowed the 2000 referendum on union leadership to proceed, even though the referendum was a blatant act of state interference in union activity proscribed under international and Venezuelan law. It also failed to rule on the legality of the 2002 oil workers' strike, thus permitting the government to run afoul of international law by enforcing its ban on the strike and dismissing striking workers.
One of the most glaring failures of the Supreme Court to protect workers' right to freedom of association, however, was its handling of a 2006 petition that sought clarification on the role of the state in union leadership elections.
In December 2005, the National Press Workers' Union (Sindicato Nacional de Trabajadores de la Prensa, SNTP) submitted a new collective bargaining agreement with the newspaper Últimas Noticias to the local labor inspectorate for approval. The inspectorate rejected the contract because the union had not held elections approved by the CNE. Four months later, the SNTP disputed the constitutionality of required CNE participation in union elections.
The SNTP asked the constitutional chamber of the Supreme Court to interpret the CNE's powers. The union argued that the interpretation favored by key government officials, which held that CNE organization of union elections is mandatory, contradicts the constitutional provision that gives international human rights treaties precedence over domestic law, requiring courts to apply them "immediately and directly." Accordingly, the SNTP asserted, the international prohibition on state interference in union elections should have the force of a constitutional guarantee.
The article of the constitution that addresses the CNE's role in union leadership elections is silent, however, on whether CNE's intervention is mandatory or limited to requests by the respective union. It merely establishes that the CNE has the power "to organize elections for labor unions, professional associations and organizations pursuing political purposes, in accordance with applicable provisions of law."
The government meanwhile (as discussed above) has presented divergent interpretations of the CNE's powers. Before the ILO, it has maintained that Venezuelan unions are free to hold elections without CNE interference and that Venezuelan law requires the government to respect international treaties, including ILO Convention 87's prohibition on state interference in union elections.Yet within Venezuela-as the SNTP case and previous cases in this chapter demonstrate-the Ministry of Labor has routinely insisted that, under Venezuelan law, CNE certification of elections is mandatory for collective bargaining purposes.
Rather than resolve this critical discrepancy and restore workers' right to elect their representatives in full freedom, according to their internal union statutes, the Supreme Court chose to evade it. It issued a ruling that dismissed the request for legal interpretation on the grounds that there is, in fact, no ambiguity in Venezuelan law regarding the CNE's role in union elections. What the court neglected to explain in its ruling, however, was which of the two contradictory interpretations of the law-the one that the government presented before the ILO or the one that it applied in practice in Venezuela-was the correct one.
Concretely, the court claimed that that there is no contradiction between Venezuelan law establishing CNE participation in union elections and international norms. However, it failed to indicate whether this is because CNE involvement is indeed optional or because mandatory involvement is consistent with international norms, a view the ILO has categorically rejected.
By failing to resolve the matter, the court effectively allowed Venezuelan officials to continue to interpret the CNE role in union elections as it saw fit. As a result, while the Ministry of Labor has told the ILO that some unions have now held valid elections without CNE participation, the CNE has continued to view its organization and certification of union elections as mandatory, in flagrant violation of international law.
State interference in union elections
In order to guarantee workers' right to freely elect their representatives, the National Assembly should:
- Revise the Organic Labor Law and Organic Electoral Law to ensure that CNE participation in union elections occurs only at the request of the union or a court on appeal;
- Revise the Organic Labor Law so as to allow for the reelection of union leaders; and
- Alter or repeal the 2004 Statute for the Election of Union Leadership so that the power to certify and annul elections is only granted to a judicial body, with adequate guarantees of due process, right to defense, and impartiality, and only in the event that election results are challenged or disputed.
To ensure the protection of collective bargaining rights, the National Assembly should:
- Until the laws mandating state interference in union elections are changed, amend the Regulations of the Organic Labor Law from 2006 so that union leadership elections are not a prerequisite for collective bargaining; and
- Amend the labor law regulations to provide clear criteria to determine the most representative union for the purposes of collective bargaining, guarantees for the rights of minority unions when no union commands majority support, and an opportunity for minority unions to speak at least on behalf of their members in those cases where a majority union exists.
In addition, the government should:
- Ensure that it verifies which union represents the majority of workers through an objective process prior to collective bargaining until clear criteria to determine the most representative union are established.
Right to strike
To bring Venezuelan law into full compliance with international standards, the National Assembly should:
- Revise the Organic Labor Law to allow for strikes grounded in demands about government social and economic policies.
Furthermore, the Venezuelan government should:
- Refrain from retaliation against workers engaged in legitimate labor organizing, as well as from making threats of future retaliation or discrimination in employment.
Alternative Labor Organizations
As the National Assembly considers the proposed legislation on workers' councils, it should:
- Amend the legislation to explicitly bar labor negotiations between employers and workers' councils when trade unions exist in the workplace; and
- Clarify the power of workers' councils to impede worker actions "with speculative, destabilizing or political ends" to clearly exclude legitimate organizing activity.
To ensure that cooperatives are not used to restrict workers' rights, the National Assembly should:
- Amend the Organic Labor Law to include workers providing labor through cooperatives in the definition of "workers";
- Explicitly grant cooperative workers the right to form organizations jointly with their directly employed counterparts and with workers laboring for other similarly situated cooperatives so that cooperative workers enjoy the same protections and rights as workers in traditional labor arrangements;
- Revise the Law on Cooperatives to limit the use of cooperatives to only those associations that provide temporary or complimentary services and operate independently and autonomously, with their own capital and personnel; and
- Establish a limit on the percentage of cooperative workers in a workplace in the Law on Cooperatives sufficient to ensure that the use of cooperatives does not undermine workers' right to freedom of association.
The ChAvez government's ability to address Venezuela's long-standing and serious human rights problems has been undermined by its adversarial approach to civil society organizations. During the ChAvez presidency, rights advocates have faced prosecutorial harassment, unsubstantiated allegations aimed at discrediting their work, and efforts to exclude them from international forums and restrict their access to international funding.
President ChAvez and his supporters have sought to justify these measures by arguing that these civil society organizations, despite their professed commitment to human rights advocacy, are actually pursuing a partisan political agenda aimed at destabilizing the country and removing President ChAvez from office. To back this charge, they have cited the fact that some civil society leaders have engaged in partisan activities, and some nongovernmental organizations have received funding from the United States.
It is perfectly reasonable for a government to investigate credible allegations that individuals or organizations have engaged in criminal activity, provided the investigations are conducted seriously and with appropriate due process guarantees. It is also reasonable for governments to regulate foreign funding of civil society groups in order to promote greater transparency, provided those regulations do not interfere with the groups' ability to exercise fundamental rights.
But the actions of ChAvez and his supporters in the National Assembly and other branches of government have gone beyond these legitimate forms of accountability and regulation by:
- Subjecting rights advocates to criminal investigations on unsubstantiated and politically motivated charges;
- Seeking to discredit and undermine rights organizations through unfounded accusations of complicity in subversion;
- Seeking to exclude organizations receiving foreign funding from international forums;
- Pursuing legislation that would allow arbitrary governmental interference in the operations of rights organizations, including fundraising activities.
These actions compromise any professed government commitment or willingness to effectively address the country's longstanding human rights problems. For example, Venezuela faces one of the highest rates of prison violence in the continent, with hundreds of deaths in preventable violent incidents every year. But rather than engage constructively with NGOs that document abuses and advocate reforms to the prison system, the authorities have harassed, intimidated, and marginalized them from policy discussions.
In one notable exception, the government incorporated civil society experts in a commission set up to analyze and make proposals to reform Venezuela's police forces, which have long been accused of corruption and abuse. After an extensive process of consultation, the commission proposed reforms to overhaul the police system. For the first time-and largely due to the involvement of rights advocates with extensive experience in battling impunity for abuses-the government identified and prioritized accountability for police abuse as a major issue, though it did not ultimately adopt all of the commission's recommendations.
Unfortunately, the commission on police reform is the exception that proves the rule. The government most often has sought to discredit and sideline human rights advocates and organizations, including experienced groups that could contribute to governmental efforts to address a wide range of other human rights problems.
International Norms on Civil Society
As part of their duty to promote and protect human rights, governments must ensure that human rights defenders are allowed to pursue their activities without reprisals, threats, intimidation, harassment, discrimination, or unnecessary legal obstacles. Moreover, both the United Nations and the Organization of American States (OAS) have recognized the importance of the work of human rights defenders to the protection of human rights and the consolidation of democracy.
According to the United Nations Declaration on Human Rights Defenders, states must "take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of their legitimate exercise of the rights referred to in this Declaration".
In its report on the situation of Human Rights Defenders in the Americas, the Inter-American Commission on Human Rights stressed the importance of the defense of human rights to the consolidation of democracy. "Human rights defenders, from different sectors of civil society, and, in some cases, from state institutions, make fundamental contributions to the existence and strengthening of democratic societies. Accordingly, respect for human rights in a democratic state largely depends on the human rights defenders enjoying effective and adequate guarantees for freely carrying out their activities."
The Inter-American Court of Human Rights has embraced the same principle. "Respect for human rights in a democratic state depends largely on human rights defenders enjoying effective and adequate guarantees so as to freely go about their activities, and it is advisable to pay special attention to those actions that limit or hinder the work of human rights defenders."
Among government actions that limit or hinder the work of human rights defenders are criminal proceedings or legal action taken or threatened against them on unfounded charges, or intimidating accusations leveled at them by government officials. The Inter-American Commission on Human Rights has pointed out that:
… the punitive power of the state and its judicial apparatus should not be manipulated for the purpose of harassing those who are dedicated to legitimate activities such as the defense of human rights…. judicial proceedings brought by the state authorities should be conducted in such a way that-based on objective evidence that is legally produced- only those persons who can reasonably be presumed to have committed conduct deserving of a criminal sanction are investigated and submitted to judicial proceedings.
Governments must not only protect human rights defenders but also ensure that they can engage in public debates through the issuing of findings and recommendations. Among the rights protected by the UN Declaration on Human Rights Defenders is the right:
individually and in association with others, to submit to governmental bodies and agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and to draw attention to any aspect of their work that may hinder or impede the promotion, protection and realization of human rights and fundamental freedoms.
Although governments are under no obligation to heed the criticism or advice of human rights defenders, they are obliged to refrain from actions that undermine the defenders' ability to exercise this right, including unfounded public statements aimed at intimidating or discrediting them.
Finally, states may not impose arbitrary limitations on the right of organizations dedicated to human rights protection to solicit and receive funds for their activities. According to the UN Declaration:
Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means.
The Inter-American Commission's view is that civil society organizations may legitimately receive money from foreign or international NGOs, or foreign governments, to promote human rights.
Deteriorated Relations with Civil Society
At the outset of his presidency, ChAvez's relations with human rights groups were better than they later became as opposition to his presidency gathered steam. Nongovernmental rights advocates participated actively in the debate over the new constitution in 1999 and had decisive influence on its human rights provisions. The Forum for Life, a consortium of nongovernmental human rights groups, submitted proposals to the constituent assembly responsible for drafting the new bill of rights. At its recommendation, many long-overdue reforms, such as limiting the number and types of rights that could be restricted in states of emergency and the use of military courts, were incorporated in the final text.
In December 1999, ChAvez initially described reports of human rights abuses during floods and landslides in Vargas State as "superficial" and "suspicious," but he later recognized their seriousness and promised action.During the same year, ChAvez described one of the organizations that documented these reports-the Venezuelan Program for Education-Action in Human Rights (El Programa Venezolano de Educación-Acción en Derechos Humanos, PROVEA)-as "an institution I know about, and with which we share its defense of human rights, they are in favor of our rights and those of our families."
Five years later, ChAvez was to accuse the same organization of conspiring against his government. As detailed below, the government's relations with civil society organizations more generally deteriorated over this period (1999-2004) as political divisions deepened over his presidency and some civil society organizations engaged in openly political advocacy. New organizations dedicated to the defense of democracy and the rule of law participated in broadly based opposition coalitions which engaged not only in litigation and political advocacy in defense of democratic rights, but also supported street protests and strike activity intended to force the president's resignation. Some NGOs received funding from institutions in the United States, which the Venezuelan government accused of backing the April 2002 coup, heightening government suspicions about their ulterior motives.
The government publicly accused both institutions and individuals in civil society of supporting the coup, or of being paid by the "empire." The attacks were directed at groups advocating peaceful and constitutional channels to change the government-in particular the 2004 recall referendum-or merely exercising their right to criticize government policies.
Activists belonging to high profile human rights groups in Caracas have been threatened and intimidated. They include Liliana Ortega, the director of the Committee of Relatives of Victims of the Events of February-March 1989 (Comité de Familiares de las Víctimas de los sucesos ocurridos entre el 27 de febrero y los primeros días de marzo de 1989, COFAVIC)-a long-established human rights group that works for victims of police violence-and other COFAVIC members; Carlos Nieto, director of Window to Freedom (Una Ventana a la Libertad, a prison reform group); and several relatives of victims of police killings who have sought justice in the courts. Ortega was one of several activists whose life and personal safety the Inter-American Commission and the Inter-American Court of Human Rights ordered the Venezuelan government to protect.
Two Divergent Approaches to Rights Advocates
Venezuelan human rights NGOs, formed in the 1980s to defend victims of prison and police abuses, have decades of experience documenting, analyzing, and seeking solutions to these problems. Unfortunately, instead of collaborating constructively with these groups, the ChAvez government has often treated them with hostility and suspicion and, in some cases, has actively sought to discredit and marginalize them.
In one notable instance, however, the government did actively collaborate with civil society groups to devise a major police reform, proving that even in the midst of political polarization such collaboration was possible, as well as productive.
Persecution of Prison Reform Advocates
The costs of sidelining human rights monitors can be clearly seen in the case of prison reform. Authorities have harassed and intimidated civil society groups that speak out about prison conditions rather than tap their commitment and expertise to find solutions to the systematic failings of Venezuelan prisons.
Nine years into his presidency, ChAvez has failed to address the chronic crisis in Venezuela's prisons, which remain among the most violent in the continent after decades of neglect by successive governments. Violence between inmates rages without check, causing hundreds of deaths every year. Inmates effectively control prisons, overwhelming the scant number of security guards. The system fails to provide minimum standards of hygiene, medical care, and internal order.ChAvez himself has described the conditions as "infernal."
Venezuelan Prison Watch (Observatorio Venezolano de Prisiones,OVP), a nongovernmental organization whose stated mission is "to promote and monitor state protection of the human rights of persons deprived of their liberty," has done much to bring the problem to public attention. OVP publishes annual reports on prison conditions and compiles statistics on violent prison deaths and injuries through an extensive network of contacts within the prison system. Little official data is publicly available on Venezuela's prison population. The national press, civil society groups, and international organizations appear to rely on OVP for all but the most basic statistics. OVP Director Humberto Prado is a prominent critic of government prison policy and appears regularly before the Inter-American Court and Commission to testify on conditions.
In March 2008, hunger strikes broke out in 15 prisons in which thousands of prisoners across the country participated. The striking prisoners were pressing for the repeal of reforms to the criminal code dating from 2005 which exempted individuals convicted of violent crimes from sentencing benefits such as work outside the prison, probation, and conditional release.
The government squarely blamed NGOs that work with prisoners for the unrest. For example, Interior and Justice Minister Ramón Rodríguez Chacín insinuated that unnamed human rights defenders who received their orders in the United States had incited the strike: "Coincidentally, when those individuals were in the United States, a prison strike began here in Venezuela to ask that an article of the Organic Penal Procedure Code not be applied." Chacín called the prison groups "humanitarian organizations with political ends" and added that they had "dubious moral solvency" and "live off prison problems."
In April 2008, a newspaper article indicated that members of OVP were under investigation by the Ministry of Interior and Justice on charges of treason and inciting rebellion. The day after the charges appeared in the press, Prado presented himself before the public prosecutor, asking for an impartial investigation of the matter and signaling his willingness to cooperate to clear the name of the organization. No charges have been brought as of this writing.
On several prior occasions, government officials and pro-government legislators publicly accused Prado of starting prison riots to undermine the government. In January 2006, then-Interior and Justice Minister Jesse Chacón called Prado a "political spokesperson" with "false" accusations to "destabilize the country." The president of the National Assembly Sub-Commission on Human Rights said that Prado "promoted prison riots." "We all know who he is, he goes from prison to prison causing problems," he added. In September 2007, Congressman Freddy Rojas announced on public television, "Each time Humberto Prado comes on television speaking about the prison situation, riots begins in the prisons … I don't discount that this has to do with a destabilization plan."
Harassment has often followed criticism of the ChAvez government's record on prisons. For instance, just days after Prado briefed the Inter-American Commission on Human Rights about the prison situation in Venezuela in November 2005, Minister Chacón publicly questioned his moral integrity and motives.Similarly, after testifying before the Inter-American Court in 2006, Director General of Prisoner Rehabilitation and Custody Erling Rojas said that Prado's statements about prison conditions "intended to destabilize the country when we are in an electoral year." Prado reported receiving threatening phone calls in May 2007 after he described the appalling conditions in the Barinas prison to the newspaper El Mundo.
Humberto Prado is not the only prison rights advocate who has suffered reprisals for his work. In 2004 the Inter-American Court ordered the government to take measures to protect Carlos Nieto, director of Window to Freedom (Una Ventana a la Libertad). The court acted after receiving reports that Nieto had received a house visit by government agents who issued veiled threats to his 9-month-old nephew, and that his neighbors had received pamphlets with death threats against Nieto.
The Court acted after Nieto's house was broken into several times, his nine-month-old niece was threatened, and death threats were sent to him and his neighbors.
The government's suspicion of human rights monitors and its refusal to treat them as valid interlocutors has direct practical consequences that limit the groups' effectiveness. Officials have ignored their requests to visit prisons, thereby hindering independent monitoring of prison conditions. Instead, OVP observers had to visit prisons in the company of family members of inmates.
The government has also excluded prison groups from taking part in government-sponsored forums on the prison system. According to the government, two investigations against Prado for human rights violations during his tenure as the director of the Yare I Prison (1996-1997) are still underway. On these grounds, the government disqualified Prado from taking part in government discussions on its "humanization" plan in 2005. Prado said that he did not know of any investigations against him and that the accusations were baseless. More generally, Prado said that OVP has been eager to participate in government discussions on prison policy, but that the government has never invited NGOs.
Government hostility also has broader ramifications for the public policy issues at stake. By publicly belittling the work done by prison groups, state officials attempt to discredit the complaints and evidence presented. The focus on the purported "destabilizing" intentions of prison groups has allowed the government to gloss over the institutional crisis in the prison system.
Although the government has announced a "humanization plan" to improve prison infrastructure through the construction of 15 new prisons between 2006 and 2012 and the expansion of recreational and occupational activities for prisoners, so far there have been few concrete advances. While OVP has commended the spirit of the government project, it has pressed the government to take further steps-often buttressed by the recommendations of the Inter-American Court-such as increases in the number and training of security guards, the separation of inmates awaiting sentencing from convicted prisoners, effective controls to prevent the entrance of weapons, hiring professional prison managers, and greater reliance on conditional liberty. These proposals have been largely ignored.
Although government officials have often sought to discredit Prado and OVP, Human Rights Watch is not aware of any examples of information published by the organization shown by authorities to be false or misleading.
Engaging civil society groups could help the government address the critical situation in Venezuelan prisons. By recognizing that the long-term goals of prison reform advocates-to construct a more humane prison system where basic rights are respected-align with those of the government, the authorities could stimulate productive discussions on how to address the inhumane conditions that have persisted for decades in Venezuelan prisons. However, such constructive dialogue will remain difficult so long as government officials continue publicly denouncing and undermining the credibility of prisoners' rights advocates.
An Alternative Approach: Police Reform
In contrast to the government's harassment of prison reform advocates and other human rights activists, recent experience with police reform provides a positive model for how the government can collaborate with civil society groups to address pressing issues. Faced with rampant violent crime and a largely discredited police force, rather than attack and question human rights groups with experience in public security issues, the government has harnessed their knowledge to draft and pass legislation to overhaul the police and improve police accountability. While the ultimate effectiveness of these reforms will depend on whether the government is willing and able to implement them in a serious manner, the experience underscores the potential for productive collaboration between government and civil society. Instead of antagonizing expert NGOs and ignoring their critiques, the government has taken important steps toward addressing a critical human rights issue with their assistance.
Venezuela has long been notorious for its high rates of common crime and violence. Nonetheless, the security situation has deteriorated since ChAvez took office. The investigative police (Cuerpo de Investigaciones Científicas, Penales y Criminalísticas, CICPC) registered over 13,000 homicides in a country of 27 million in 2007, up from just under 6,000 homicides in 1999. Citizens believe that the most serious problem confronting the country is violent crime. Not only have law enforcement efforts failed to reduce crime levels, but the police themselves have also been responsible for widespread abuses.
Police have been accused of thousands of violations of the right to life and personal integrity in past years, and impunity has allowed police abuse to persist. According to the Attorney General's Office, between 2000 and 2007, 6,300 law enforcement officials were investigated for alleged human rights violations. Authorities have lodged charges against 1,500 of them. But as of February 2007, only 204, or roughly 13 percent of those charged, have been convicted.
Despite the gravity of the situation revealed by these official figures, the government has blamed the media and civil society groups for exaggerating crime and impunity. The press office of the investigative police, traditionally responsible for crime statistics, was closed in 2003 on the pretext that the opposition manipulated statistics for political gain. As former Attorney General Isaías Rodríguez noted in a press conference speaking about human rights groups:
We are conscious that they want to manipulate impunity as a simple theme, nationally and internationally, in order to articulate insecurity and with the help of the media create a sense of an epidemic that affects governability, public peace and the political and social stability of the country.
Despite the denials, the government has acknowledged the centrality of police reform for effective crime control. In particular, the extreme decentralization of the police has been blamed for the high levels of abuse and uneven performance of police departments. As such, the 1999 Constitution included a transitory provision that committed the National Assembly to form a national civilian police. In 2001, legislators drafted the first version of the National Police Law, but the law languished in legislative discussions.
The idea of sweeping police reform resurfaced in 2006 after a wave of street protests following the kidnapping and murder of three brothers with Canadian citizenship. Minister Chacón responded by forming the National Commission for Police Reform (Comisión Nacional para la Reforma Policial, Conarepol) to analyze the police system and make recommendations for its improvement, including the potential formation of a national police force.
Conarepol was unusual in several respects. First, the commission drew together a diverse group of experts, including civil society groups, academics, and government officials. Its technical secretary was a member of the NGO Justice and Peace Support Network (Red de Apoyo por la Justicia y la Paz), which has worked for more than a decade offering legal assistance and counseling to victims of police abuse. Another of Conarepol's members was the director of the Centro Gumilla, a Jesuit research institute. Given the government's frequent antagonism toward civil society groups, the inclusion of representatives from NGOs was a rare recognition of their work. 
Second, the commission conducted an unusually thorough diagnostic process. Over the course of nine months, some 70,000 citizens took part in focus groups, interviews, online forums, and telephone surveys.
Third, the government did not interfere in the work of Conarepol. Its technical secretary, Soraya El Achkar, told Human Rights Watch that the autonomy and political neutrality of the commission was central to its success: "We were given complete autonomy to contract the best people in each given area so we didn't enter into political debates."
The final recommendations of Conarepol, published in January 2007, called for the formation of a new national civilian police force and for the establishment of a national police system to monitor and standardize the quality of state and municipal police forces. However, while the initial consultation process granted civil society groups an important role, the final discussions to translate the Conarepol project into law occurred behind closed doors with little explanation of the final form.
The Organic Law of Police Service and National Police (Ley OrgAnica del Servicio de Policía y del Cuerpo de Policía Nacional), passed by decree in April 2008 after numerous delays, is largely based on the proposals of Conarepol. A key part of the law offers measures to improve police accountability, a vital element championed by NGOs like the Justice and Peace Support Network, which had dedicated years to combating impunity. For example, Conarepol recommended a system of routine evaluation of police departments and the law creates a new office within the Ministry of Interior and Justice, called the Police Rector, to continuously evaluate the performance of all police departments, including their compliance with human rights standards. The law also requires all police forces to establish internal affairs units, as well as independent disciplinary units.
Similarly, as recommended by Conarepol, the law envisions a central role for citizens in police supervision. Through community councils, in particular, citizens are assigned an audit function in which they can request reports on police activities and make recommendations to improve policing.
Conarepol also identified serious shortcomings in police recruitment and training that have resulted in low levels of police professionalism. The commission recommended standardized police training and common criteria for the entrance, promotion, and demotion of officers. These recommendations were followed in the law, which requires that all police attend a police academy to complete a uniform curriculum and receive specialized instruction.
The law decreed by ChAvez differs in some important ways from the Conarepol proposal, however. Commission members have criticized the law for its failure to create a special public defender to conduct independent investigations of alleged human rights abuses committed by police officers, as proposed by Conarepol. Another concern, aroused by recent government statements, is that politicization of the force could undercut the goal of professionalization.
The government's constructive engagement on the issue of police reform has been the exception during the ChAvez presidency. Much more typical has been a tendency to discredit human rights critics, especially those that have links to the United States or have engaged in vigorous advocacy in Inter-American human rights forums.
In two major cases, the authorities opened criminal investigations against prominent civil society members. In the first case, the charges were apparently without any substance; in the second they were grossly inflated.
In April 2005 the attorney general opened a criminal investigation for conspiracy against human rights lawyer Carlos Ayala, president of the Andean Commission of Jurists and a former president of the Inter-American Commission of Human Rights. Ayala was to be investigated for having allegedly participated in the drafting of the "Carmona decree," by which Pedro Carmona, the de facto president briefly installed during the 2002 coup, proposed to suspend Venezuela's democratic institutions.
The attorney general did not state on what evidence Ayala was under suspicion of engaging in conspiracy. In a reply to a press release issued by Human Rights Watch expressing concern about Ayala's legal situation, Attorney General Isaías Rodríguez stated only that he was under investigation for the presumed commission of a crime "in relation to the events of April 2002." Ayala was not told when he appeared before the prosecutor what the evidence against him was, beyond press articles that appeared immediately after the April 2002 events. The only article that mentioned Ayala by name reported him as saying that he had been alarmed when he read the draft decree, promptly left the government palace, and met with human rights advocates to agree to a position rejecting the coup.
Despite the attorney general's categorical denial that Ayala's incrimination was politically motivated, his office never issued detailed information about the evidence warranting investigation. Ayala's activities as an advocate in the inter-American system for Venezuelan victims of human rights abuse were well known. On March 3, 2005, a month before his first appearance before the prosecutor, he participated in a special session of the Inter-American Commission devoted to an examination of human rights in Venezuela. After the meeting, the commission issued a statement expressing concern at the stigmatization of human rights defenders in Venezuela and risks they face as a result.An official of the Venezuelan permanent mission to the OAS later justified the legal action against Ayala because of his alleged failure to question the coup d'état publicly and before the international community. "The rule of law was dissolved and it was his duty to denounce it to the world and he didn't, but Ayala doesn't mention that when he's accused."
By December 2007, two-and-a-half years after the investigation was opened against Carlos Ayala, no charges had been filed but he had received no notification of its closure either. He found himself in a legal limbo: not guilty, not formally indicted for any crime, but not declared to be innocent either. In December 2007 Ayala was granted amnesty under a presidential amnesty decree, but he continued to press the Attorney General's Office to formally close his case.
While Ayala was never formally charged, the attorney general did bring charges of criminal conspiracy against members of Súmate, a non-profit organization that played a key role in promoting voter participation in the recall referendum against ChAvez in 2004. The conspiracy charges were based on the fact that, while engaged in its referendum-related activity, Súmate had received a grant from the National Endowment for Democracy (NED), a Washington-based institute funded by the United States Congress.
What was particularly troubling about the Súmate prosecution was the gravity of these charges. If Súmate's use of foreign funding indeed violated Venezuela's campaign finance laws, it would have been reasonable for the attorney general to seek an appropriate sanction. Instead the prosecutor sought a conviction for the far more serious crime of "conspiracy to destroy the nation's republican form of government," which carries a maximum 16-year prison sentence.
Both Súmate and the NED insist that the funds, totaling U.S $53,400, were not used for electoral activities but rather for workshops to educate citizens regarding Venezuela's constitutional referendum process. But even if the NED funds did actually support electoral activity, the recall referendum was itself a legal process envisaged in the 1999 Constitution, not an act of subversion.
In July 2005 a Caracas court ordered a trial for Súmate Vice-President María Corina Machado, her colleague, Alejandro Plaz, and two other Súmate staffers. The trial was suspended in February 2006, when the appeals court ruled that the trial judge had committed due process violations, including refusing to empanel a jury or to allow key defense witnesses, such as the NED directors, to testify. A new jury trial ordered by the appeals court has been repeatedly postponed. After three years, the case against Súmate is still open.
The ChAvez government has repeatedly denounced and sought to discredit the work of human rights advocates by making unfounded accusations that they are funded by and doing the bidding of foreign governments.
In a broadcast on February 15, 2004 about alleged destabilization efforts by the United States, ChAvez complained that the Center for Justice and International Law (CEJIL), a Washington-based organization that litigates human rights cases in the Inter-American Commission and Court of Human Rights, had received a $83,000 grant from the National Endowment for Democracy (NED) to file complaints against Venezuela in the inter-American system. ChAvez also accused several Venezuelan organizations-including PROVEA, COFAVIC, the Justice and Peace Support Network, and some church-affiliated groups-of conspiring against his government because they had worked with CEJIL. "They are nothing but actors in a macabre cast, in a great conspiracy against Venezuela," ChAvez declared.
PROVEA wrote to ChAvez, pointing out correctly that it had received no money from NED and is independent of CEJIL, and requested that he retract his factually incorrect comments. After receiving no response, it sent another letter to ChAvez in August 2004, which was also ignored. To date, ChAvez has never acknowledged his mistake or offered an apology to the organizations affected.
PROVEA is one of Venezuela's most important human rights organizations. It is non-partisan, and works on a wide range of human rights issues, including prisons, police abuses, women's rights, and the defense of social and economic rights. Because PROVEA's work brings it into close contact with many committed ChAvez supporters, suspicions that it has a hidden political agenda could seriously damage the organization's credibility. According to PROVEA advocates, ChAvez's comments thus had serious implications for the effectiveness of PROVEA's human rights work. As a result of ChAvez's comments, which came at a moment of intense political polarization in the lead up to the 2004 referendum, PROVEA advocates received insulting emails and came under questioning and criticism from residents in a poor neighborhood where they were working on a project for the homeless.
ChAvez has appeared on the main state channel's popular evening program La Hojilla (The Razorblade) to denounce or ridicule rights advocates. An example is ChAvez's comments about Sinergia, a consortium of community and human rights groups, made during the December 2007 referendum campaign. Sinergia distributed pamphlets in parts of Caracas with cartoons intended to provoke critical debate about the proposed constitutional reforms. It also broadcast radio spots featuring imaginary conversations between barrio residents discussing the reforms, using the voices of popular actors. On his November 18, 2007, program, La Hojilla host Mario Silva denounced the series for "confusing the people." ChAvez then called La Hojilla in person from Saudi Arabia, where he was attending an OPEC meeting. Asked by Silva for his opinion of the Sinergia radio spots, ChAvez replied, "without doubt, this comes from the hand of the empire, which has all the money in the world" and is the work of the "devil's commando." He told listeners: "We must pulverize this pretension."
During another broadcast of La Hojilla on April 16, 2008, Silva commented on a view expressed by Rocío San Miguel, director of Citizens Control for Security, Defense and the National Armed Forces (Control Ciudadano para la Seguridad, la Defensa y la Fuerza Armada Nacional), an NGO that monitors political rights, transparency, and military affairs, in which she had criticized the creation of a military reserve under the sole command of ChAvez. "The trouble with Rocío," said Silva, "a beautiful woman but a liar, is that she was fired from her job because she participated in the April 2002 coup." (As we saw in chapter 2, San Miguel reports that she was fired from her job because she signed a petition for the recall referendum.) Minutes later, during the TV show, Silva spoke to ChAvez, who was in a ministerial meeting in the presidential palace. Silva asked the president's opinion of the "opposition" comments about the reserve force. "They want to articulate destabilizing actions because the regional elections are coming up," ChAvez replied.
Attempts to Exclude NGOS from International Forums
Government officials have repeatedly challenged the participation of Venezuelan NGOs in international forums.
For example, a senior foreign ministry official insisted that representatives of NGOs which received funds from foreign governments could not be civil society members of the Venezuelan delegation to the United Nations General Assembly meeting on HIV/AIDS in June 2001. The official referred to a Supreme Court ruling that NGOs which received funding from foreign governments could not be considered part of civil society, nor could civil society be represented by foreigners. The announcement affected an important NGO working for HIV/AIDS victims, Citizen's Action against AIDS (Acción Ciudadana contra el SIDA, ACCSI), which received foreign funding and was helping to organize Venezuela's participation in the landmark meeting. In the event, the government invited two members of ACCSI to participate in the official delegation, but the organization's executive director was excluded because of her German nationality.
The Venezuelan government has continued to cite this Supreme Court ruling to justify efforts to bar some NGOs from participating in international forums. In April 2006 a Venezuelan ambassador at the UN wrote to the chief of the UN's Non-Governmental Organizations Section requesting that the Venezuelan NGO Consortium for Development and Justice (Consorcio Desarrollo y Justicia), be denied consultative status with the Economic and Social Council (ECOSOC). The ambassador stated that the Consortium had received funds from foreign governments "to develop political activities," which she said was against the law in Venezuela, citing the November 2000 Supreme Court ruling to this effect.
The Consortium had received funds administered by the United States government and Congress (from USAID and NED, respectively). In fact, according to a Consortium representative, the USAID grant helped support training programs for young community media journalists in low-income sectors of Caracas. The NED funds were provided to monitor judicial independence, to organize workshops for the defense of civil society, to present cases to the Inter-American Commission on Human Rights, and to organize youth training programs in human rights and conflict resolution in TAchira state. The Consortium's founding statutes expressly prohibit it from engaging in political action. After the Consortium successfully lobbied other governments for support, it gained consultative status with ECOSOC in 2007.
In December 2006, the comptroller general wrote to an OAS judicial cooperation official opposing the participation of the Venezuelan branch of Transparency International in the debate on Venezuela's implementation of the Inter-American Convention against Corruption. The comptroller general used the same arguments as those given in the earlier case and cited also the November 2000 Supreme Court decision, as well as an earlier opinion of the court excluding organizations that receive foreign funding from being considered part of civil society. Specifically, Venezuelan officials objected to a Transparency Venezuela document posted on the OAS website, which criticized Venezuela's lack of compliance with the recommendations of the OAS committee of experts in their 2004 report. According to the OAS website, publication of the document was suspended at the request of the Venezuelan government. When the executive director of Transparency Venezuela traveled to Washington in late June 2007 to brief the panel of the OAS on the document's conclusions, Venezuelan officials vetoed her appearance, thereby preventing her from speaking.
The government has also tried, so far unsuccessfully, to have Súmate excluded from OAS meetings. In May 2005, the OAS Permanent Council approved a list of 119 invitees to an OAS civil society summit to be held the following month at Fort Lauderdale, Florida, disregarding Venezuela's formal objection to the presence of Súmate at the gathering. A second attempt to veto Súmate's participation in an NGO follow-up meeting in Panama in June 2007 failed when the OAS Permanent Council accepted Súmate's participation and that of the Consortium for Development and Justice.
Proposed Legal Restrictions
The ChAvez government and its allies have promoted legislation that would, if enacted, allow arbitrary governmental interference in the operations of human rights organizations, including fundraising activities.
In June 2006, the National Assembly approved the first reading of a bill aimed at bringing the activities of Venezuelan NGOs receiving funds from abroad under closer government scrutiny and control. Presented by the Foreign Relations Committee, the bill required NGOs to register with a government agency in order to receive funding from foreign sources, whether public or private.
The committee's justification for the bill centered on the potentially negative consequences of foreign aid for Venezuela, which it considered to be "one of the most commonly used tools of imposition and intervention by the big powers." Congressman Saul Ortega, one of those who drafted the bill, made it clear that this demand for transparency was mainly directed at opposition organizations:
These are the same organizations that supported the coup, that didn't denounce the killings of April 11, 12, and 13 … they are lackey organizations that don't care about what all Venezuelans want…. Most have a façade of defending human rights, while what they do is receive money from foreign governments to destabilize the government of President ChAvez.
The law made registration compulsory but did not specify the requirements for registration. These were to be defined in regulations (reglamento de la ley) to be issued subsequently by the executive branch at its discretion and without legislative debate. This meant in essence that NGOs that failed to meet the as yet undefined conditions for registration would not be authorized to receive foreign funds. The Inter-American Commission on Human Rights has urged governments to avoid onerous registration procedures that impede the work of human rights organizations. After the European Union actively engaged the government on the issue, the National Assembly postponed debate on a final text of the bill, which has since been shelved.
More recently, a constitutional amendment, which was proposed by ChAvez as part of the reform package that was defeated in the December 2007 referendum, explicitly prohibited "associations with political goals" from receiving foreign funds. The ambiguity of the term "association with political goals," and the way government officials have interpreted it in the past, could have extended the prohibition to NGOs that are implementing projects in Venezuela with funding from foreign donors.
While the defeat of the reform package in the referendum removed this immediate threat, ChAvez promised after the vote to continue to pursue all the proposed reforms through ordinary legislation.
Judicial Rulings Affecting Civil Society
The Supreme Court helped establish the tone for discrediting NGOs early on in the ChAvez government by ruling in two decisions that NGOs that receive funds from abroad do not form part of civil society. In these rulings, issued in 2000, the court defined "civil society" in such a way as to exclude organizations that receive foreign funding, thereby preventing them from exercising the rights to political participation that other NGOs enjoy. Such rulings remain in effect today.
In a June 2000 decision, the court defined civil society organizations as:
Venezuelan associations, groups, and institutions (without external subsidy) that through their purpose, permanence, number of members or affiliates and continuous activity have been working from different angles of that society to achieve a better quality of life for its members, without being attached to the government or to political parties [emphasis added].
The following November, the court ruled that no NGO that is affiliated with or receives funds from foreign governments, or from "transnational or global associations, groups or movements that pursue political or economic goals to their own benefit," may be considered part of civil society. No foreigners may "represent" civil society, nor may foreign groupsor those influenced by them. The court reasoned that:
To recognize the collective rights of foreign groups or entities or of those that are influenced by them, and to allow them to act in the name of the national civil society is to permit ethnic and foreign minorities to intervene in the life of the state in defense of their own interests and not those of the security of the nation, interests that may be harmful for the country and could end in separatist movements, aggressive and conflictive minorities that could even be founded on separatist movements like the self-determination of peoples.
The court allowed an exception to the foreign funding rule in the case of organizations receiving money from international charities or those commissioned by international organizations to "carry out studies," provided that Venezuelans retained autonomy and control. By implication, those that received money for activities other than studies, such as human rights advocacy, were excluded.
As we have seen, government officials have cited these rulings on various occasions as grounds for opposing the participation of Venezuelan nongovernmental organizations in international forums.
The rulings also denied NGOs receiving funds from foreign governments the possibility of participating as representatives of civil society in the appointment of key officials in the government and the judiciary. Under the constitution, "different sectors of society" are represented on the committees which select candidates for the Supreme Court, for the National Electoral Council (CNE), and for attorney general, the human rights ombudsman and comptroller general. As a result of these rulings, NGOs that receive funds from foreign sources to carry out development, social, or human rights projects in Venezuela have been excluded from participating in such selections.
The ChAvez government should abandon its aggressively adversarial posture toward local human rights defenders and civil society organizations. As the experience with police reform demonstrates, even in the midst of a polarized political situation, constructive engagement is possible and can contribute to finding solutions to the country's chronic human rights problems.
Specifically, government officials should:
- Refrain from unfounded attacks on the credibility of human rights defenders and civil society organizations;
- Publicly retract unfounded public statements against rights advocates and organizations;
- Engage constructively with human rights defenders in seeking solutions to address Venezuela's chronic human rights problems; and
- Cease discrimination against civil society organizations that receive international funding, including by blocking their participation in international forums or public appointment selection processes.
In addition, the Attorney General's Office should:
- Conclude outstanding criminal investigations against human rights defenders and civil society representatives in a timely manner; and
- Refrain from filing unsubstantiated or grossly exaggerated charges against human rights defenders and civil society leaders.
This report was researched and written by Alisha Holland, Princeton Fellow in Latin America, Sebastian Brett, senior researcher, Tamara Taraciuk, researcher, and Daniel Wilkinson, deputy director of the Americas Division of Human Rights Watch. Leonardo Filippini, consultant with the Americas Division, and James Loxton, Princeton Fellow in Latin America, contributed to the research and writing. The report was edited by Carol Pier, labor rights and trade senior researcher, Anne Manuel, consultant, Aisling Reidy, senior legal advisor, Ian Gorvin, senior program officer, Joe Saunders, deputy program director, and José Miguel Vivanco, Americas director at Human Rights Watch. Americas Division associates Paola Adriazola, Kavita Shah, and Danielle Wainer contributed to research logistics, production, and editing. Americas Division consultant Abby Rubinson and interns Marlon Arias, Ignazio de Ferrari, and Anne Goldin provided valuable research support.
Human Rights Watch would like to thank the numerous Venezuelan officials, human rights advocates, lawyers, journalists, and others who contributed to this report.