text:
In 2008, Human Rights Watch released A Decade Under Chávez, a 230-page report documenting how the government of President Hugo Chávez had squandered an historic opportunity to shore up the country's democratic institutions and strengthen the protection of human rights in Venezuela. After enacting a new constitution with ample human rights guarantees in 1999—and surviving a short-lived coup d'état in 2002—President Chávez and his supporters moved to concentrate power by seizing control of the Supreme Court and undercutting the ability of journalists, human rights defenders, and other Venezuelans to exercise fundamental rights.
The 2008 report, which Human Rights Watch released at a press conference in Caracas, offered detailed recommendations of steps the Venezuelan government could take to salvage the human rights potential of the 1999 Constitution. President Chávez responded by having Human Rights Watch's representatives forcibly detained and summarily expelled from the country.
Since then, the human rights situation in Venezuela has become even more precarious. The pro-Chávez majority in the National Assembly has passed legislation expanding the government's powers to limit free speech and punish its critics. And the Supreme Court—re-packed with Chávez supporters in 2010—has explicitly rejected the principle that the judiciary should serve as a check on presidential power, while joining with the president in dismissing the authority of the Inter-American system of human rights.
The accumulation of power in the executive, the removal of institutional safeguards, and the erosion of human rights guarantees have given the Chávez government free rein to intimidate, censor, and prosecute Venezuelans who criticize the president or thwart his political agenda. In the past four years, President Chávez and his supporters have used these powers in a wide range of cases, including the following:
- After Judge María Lourdes Afiuni granted conditional freedom in December 2009 to a government critic who had spent nearly three years in prison awaiting trial on corruption charges, President Chávez denounced her as a "bandit" and called for her to be given a 30-year prison sentence. Although Afiuni's ruling complied with a recommendation by UN human rights monitors—and was consistent with Venezuelan law—she was promptly arrested and ordered to stand trial by a provisional judge who had publicly pledged his loyalty to President Chávez. ("I give my life for the Revolution," he wrote on the website of the president's political party. "I would never betray this process and much less my Commander.") Afiuni spent more than a year in prison in pretrial detention, in deplorable conditions, together with convicted prisoners—including many she herself had sentenced—who subjected her to repeated death threats. In the face of growing criticism from international human rights bodies, Afiuni was moved to house arrest in February 2011, where she remains today while awaiting trial.
- After the weekly newspaper 6to Poder published a satirical article in August 2011 depicting six high-level female officials—including the attorney general and Supreme Court president—as dancers in a cabaret entitled "The Revolution" directed by "Mr. Chávez," the six officials called for a criminal investigation and for the paper to be closed down. Within hours, arrest warrants were issued for the paper's director, Dinora Girón, and its president, Leocenis García, on charges of "instigation of public hatred." Girón was arrested the following day, held for two days, then granted conditional liberty. García went into hiding, but turned himself in to authorities the following week, and was imprisoned for two months, then granted conditional freedom. At this writing, both Girón and García remain under criminal investigation pending trial. The newspaper is under a court order to refrain from publishing any text or images that could constitute "an offense and/or insult to the reputation, or to the decorum, of any representative of public authorities, and whose objective is to expose them to public disdain or hatred."
- After human rights defender Rocío San Miguel appeared on a television show in May 2010 and denounced the fact that senior military officers were members of Chávez's political party (a practice prohibited by the Venezuelan Constitution), she was accused on state television of being a "CIA agent" and "inciting insurrection," and in the official magazine of the Armed Forces of seeking to foment a coup d'état in Venezuela. The NGO that she directs, Citizen Watch, was also named—along with other leading NGOs—in a criminal complaint filed by several youth groups affiliated with Chávez's political party for alleged "treason" due to having received funding from the US government. San Miguel has since received repeated death threats from unidentified individuals. While she does not know the source of those threats, she believes the denunciations in the official media have made her more vulnerable to such acts of intimidation.
- After Venezuela's oldest television channel, RCTV, broadcast a video in November 2006 showing Chávez's energy minister telling his employees at the state oil company to quit their jobs if they did not support the president, Chávez publicly warned RCTV and other channels that they could lose their broadcasting license—a threat he had made repeatedly in response to critical broadcasting. A month later, the president announced his (unilateral) decision that RCTV would no longer be "tolerated" on the public airwaves after its license expired the following year. RCTV stopped transmitting on open frequencies in May 2007, but continued as a cable channel. Since then, the government has used its regulatory power to drive RCTV off of cable television as well. In January 2010, the National Telecommunications Commission (CONATEL) determined that RCTV was a "national audiovisual producer" and subject to newly established broadcasting norms. Days later, Chávez's communications minister threatened to open administrative investigations against cable providers whose broadcast channels were not in compliance with the norms. In response, the country's cable providers stopped broadcasting RCTV International. CONATEL has since denied RCTV's repeated efforts to re-register as a cable channel. Today, RCTV can only be viewed on the internet, and it no longer produces news coverage due to lack of funding.
- After Globovisión, the only remaining television station with national coverage consistently critical of Chávez's policies, provided extensive coverage of a prison riot in June 2011—including numerous interviews with distressed family members who claimed security forces were killing prisoners—President Chávez responded by accusing the station of "set[ting] the country on fire…with the sole purpose of overthrowing this government." The government promptly opened an administrative investigation of Globovisión's coverage of the violence and, in October , ruled that the station had "promoted hatred for political reasons that generated anxiety in the population," and imposed a US$ 2.1 million fine, which is equivalent to 7.5 percent of the company's 2010 income. Globovisión is currently facing six additional administrative investigations—including one opened in response to their reporting that the government failed to provide the public with basic information in the aftermath of an earthquake and another for broadcasting footage of an opposition political candidate criticizing the electoral authority for delaying the release of local election results. Under the broadcasting law enacted by President Chávez and his supporters in the National Assembly in 2004, a second ruling against Globovisión could result in another heavy fine, suspension of the station's transmission, or revocation of its license.
- After Oswaldo Álvarez Paz, an opposition politician, appeared on Globovisión's main political talk show in March 2010 and commented on allegations of increased drug trafficking in Venezuela and a Spanish court ruling that referred to possible collaboration between the Venezuelan government and Colombian guerrillas, Basque separatists, and other "terrorist" groups, President Chávez responded in a national broadcast that these comments "could not be permitted" and called on other branches of government "to take action." Two weeks later, Álvarez Paz was arrested on grounds that his "evidently false statements" had caused "an unfounded fear" in the Venezuelan people. Álvarez Paz remained in pretrial detention for almost two months, and was then granted conditional liberty during his trial, which culminated in July 2011 with a guilty verdict and a two-year prison sentence. The judge allowed Álvarez Paz to serve his sentence on conditional liberty, but forbade him from leaving the country without judicial authorization.
These high-profile cases—and the others documented in this report—have had an impact not only on the individuals and groups directly involved, but also on many other Venezuelans who themselves have not been targeted. For judges, journalists, broadcasters and human rights defenders in particular, the government's actions have sent a clear message: the president and his followers are willing and able to punish people who challenge or obstruct their political aims. While many Venezuelans continue to criticize the government, the prospect of facing similar reprisals—in the form of arbitrary or abusive state action—has undercut the ability of judges to adjudicate politically-sensitive cases, and forced journalists and rights defenders to weigh the consequences of publicizing information and opinions that are critical of the government.
The Courts
A Decade Under Chávez documented how President Chávez and his supporters in the National Assembly carried out a political takeover of the Supreme Court in 2004, expanding it from 20 to 32 members and filling the new seats with government supporters. This packed Supreme Court effectively abdicated its responsibility to safeguard fundamental rights in prominent cases involving the media and organized labor.
Since then, President Chávez and his supporters have taken dramatic steps to maintain their political control over the judiciary. In 2010, after legislative elections greatly reduced the size of the pro-Chávez majority in the National Assembly, the president's supporters in the outgoing Assembly rushed to change the law governing the process for appointing justices and then re-packed the Supreme Court before the newly elected opposition legislators took their seats.
The Supreme Court's record has only gotten worse in recent years, as its members have openly rejected the principle of separation of powers and publicly pledged their commitment to advancing the political agenda of President Chávez. This political commitment has been reflected in the court's rulings, which have repeatedly validated the government's disregard for international human rights norms.
The most disturbing example of the lack of judicial independence in Venezuela has been the jailing of Judge Afiuni, which has hada powerful impact on lower court judges. Since the political takeover of the Supreme Court in 2004, they have been afraid of issuing rulings that might upset the Chávez government. But whereas in the past they only feared losing their jobs, now they also fear being criminally prosecuted for upholding the law.
In addition to neutralizing the judiciary as guarantor of rights, the Chávez government has rejected the authority of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights, failing to implement binding rulings of the court, and preventing the commission from conducting in-country monitoring of human rights problems (as the commission has done for decades in countries throughout the region). Both President Chávez and the Supreme Court have advocated for Venezuela's withdrawal from the Inter-American system, a move that would leave Venezuelans without recourse to what has been for years—in countries throughout the region—the most important external mechanism for seeking redress for abuses when national courts fail to provide it.
The Media
A Decade Under Chávez documented how President Chávez and his supporters in the National Assembly had undermined freedom of expression through a variety of laws and policies aimed at reshaping the content of and control over the media. Since then, the Chávez government has further expanded and abused its powers to censor its critics.
In December 2010, the pro-Chávez majority in the National Assembly amended the 2004 broadcasting law so that its restrictions on free speech in the media now apply to the internet as well. It also added new restrictions, including a prohibition on transmitting messages that "foment anxiety in the public," and granted CONATEL greater powers to sanction TV and radio broadcasters, as well as websites, that violate them. In addition, the National Assembly passed legislation allowing CONATEL to suspend or revoke broadcasting licenses whenever the agency considers such action to be "convenient for the interests of the nation."
Chávez's supporters have sought to justify the government's policies in this area by claiming they are efforts to " democratize " the country's media. Yet, instead of promoting pluralism, the Chávez government has used its regulatory authority to expand the number of pro-government media outlets, while reducing the availability of those that engage in critical programming.
While the government has actively promoted the creation of community radio stations, giving new opportunities for public expression to residents of many poor communities, even this important initiative has been used by the government for explicitly partisan purposes.
The government has also expanded the number of state-run TV channels from one to six, all of which maintain a strong pro-Chávez editorial line. Meanwhile, it has taken aggressive action against private stations. After being arbitrarily removed from the public airwaves in 2007,RCTV, Venezuela's oldest private television channel, has since been driven off cable TV by the government, leaving Globovisión as the only major channel that remains critical of President Chávez. The government has pursued administrative sanctions against Globovisión, which could lead to its suspension or closure, and pressed criminal charges against the station's president, a principal owner, and a guest commentator after they issued public statements criticizing the government.
In addition, the government has also targeted media outlets for sanction and/or censorship for their critical reporting on the government's response to issues such as water pollution, violent crime, a prison riot, and an earthquake, as well as a series of political advertisements in support of property rights, a satirical news story depicting senior officials as dancers in a Chávez-led cabaret, and a Colombian soap opera in which a character named Venezuela who loses her dog named Huguito (Little Hugo) asks her boyfriend, "What will become of Venezuela without Huguito?" and he responds "You will be free, Venezuela."
The sanctioning and censorship of the media have had a powerful impact on broadcasters and journalists. While sharp criticism of the government is still common in the print media, on Globovisión, and in some other outlets, the fear of government reprisals has made self-censorship a serious problem in the country.
Human Rights Defenders
A Decade Under Chávez documented how President Chávez and his supporters had aggressively sought to discredit the country's human rights defenders by accusing them of receiving support of the US government to undermine Venezuelan democracy.
While it is true that some (though not all) of Venezuelan human rights NGOs have received funding from US sources—a common practice among independent NGOs throughout Latin America—there is no credible evidence that the independence and integrity of their work on behalf of human rights in Venezuela has been compromised by any of this reliance on international support. (Indeed, Venezuela's leading human rights NGOs receive far more assistance from European sources than they do from US ones.)
Nonetheless, these efforts to discredit local human rights defenders have intensified, and the stakes have grown significantly higher, as Chávez's supporters in the National Assembly have increased the state's capacity to sanction nongovernmental organizations that receive foreign funding. In July 2010, the Supreme Court ruled that individuals or organizations receiving foreign funding could be prosecuted for "treason" under a provision of the criminal code that establishes a prison sentence of up to 15 years. And i n December 2010, the National Assembly enacted the Law for the Defense of Political Sovereignty and National Self Determination, which blocks organizations that "defend political rights" or "monitor the performance of public bodies" from receiving international funding and imposes stiff fines on organizations that invite foreigners who express opinions that "offend" government institutions. While it is reasonable for governments to regulate foreign funding of civil society groups in order to promote greater transparency, these norms go well beyond legitimate forms of accountability and regulation.
In addition, while claiming to be promoting transparency for civil society, the Chávez government has enacted rules that dramatically reduce the public's right to obtain information held by the government.
In combination, these measures have significantly increased the government ' s ability to prevent or deter human rights defenders from obtaining the funding, information, legal standing, and public visibility that they need to be effective advocates.
Moreover, there is a strong perception among local human rights defenders that the government's aggressive efforts to cast doubt on their motives and allegiances has contributed to an environment in which they are more vulnerable to acts of intimidation by low-level officials and threats and acts of violence by private citizens who support President Chávez.
Note on Methodology
This report's findings are based on an extensive review of official sources, including judicial and administrative rulings, government websites, press releases, news accounts in state media outlets, and video recordings of public statements by government officials. The findings are also based on in-depth interviews with human rights defenders, jurists, journalists, academics, diplomats, and victims of human rights abuses, conducted during four Human Rights Watch visits to Venezuela between May 2010 and March 2012, as well as prior and subsequent interviews by telephone, email, and Skype.
All those interviewed were informed of the purpose of the interview, its voluntary nature, and the ways in which the information would be used. Interviewees were told they could decline to answer questions or end the interview at any time. All provided oral consent to be interviewed. None received compensation.
When conducting research in Venezuela, Human Rights Watch intentionally avoided establishing contact with government officials or drawing public attention to our presence in the country. Our principal reason for this practice was the fact that the Chávez government had forcibly detained Human Rights Watch representatives in 2008 and declared that our representatives would not be "tolerated" in the country.
Human Rights Watch submitted written information requests to high-level Venezuelan officials, including the president of the Supreme Court of Justice, the attorney general, the ombudsperson, and the director of CONATEL, with specific questions regarding the issues covered in this report. At this writing, we have received no response to these requests.
The Courts
Re-Packing the Supreme Court
The 1999 Bolivarian constitution sought to address the major shortcomings of Venezuela's judicial system. Decades of rampant corruption and political meddling had left the country's judiciary dysfunctional and profoundly discredited. The drafters of the constitution hoped to salvage the judicial branch by creating a new Supreme Court and establishing essential protections for judicial independence, thus laying the groundwork for the judiciary to fulfill its crucial role as guarantor of the rule of law and protector of basic rights.
A Decade Under Chávez documented how President Chávez and his supporters in the National Assembly squandered this opportunity by carrying out a political takeover of the judiciary in 2004, expanding the Supreme Court from 20 to 32 members and filling the new seats with government supporters.
In September 2010, President Chávez's supporters in the National Assembly moved to extend this control. Five days after the legislative elections—in which the pro-Chávez majority in the National Assembly was reduced from close to 100 percent to approximately 60 percent of the seats[1]—they modified a key article of the 2004 court-packing law to accelerate the process for naming new justices. While the original article granted individuals "at least" 30 days to present nominations, the revised version states that they now have "no more than" 30 days.[2] (The legislators claimed they were merely correcting "errors" in the text of a reformed version of the law that had been published earlier that year.) [3]
With the new rules in place, Chávez's supporters were able to appoint their allies to the Supreme Court before the new Congress was installed. In December 2010, they selected nine new justices, including several former legislators from Chávez's political party, former high-level government officials, and former ambassadors appointed by the Chávez administration.[4] (To create the new vacancies, the Supreme Court also gave several justices authorization to retire before the conclusion of their constitutional 12-year terms.)[5]
The political control over the Supreme Court translates directly into control over lower courts as well, as the Supreme Court effectively controls the appointment and removal of lower court judges.[6] Since 2000, Venezuela's Judicial Commission—currently made up of six justices from the packed Supreme Court—has used its discretionary powers to appoint and remove hundreds of lower court provisional or temporary judges through mechanisms that lack basic due process safeguards.[7] (Moreover, even though the 1999 constitution mandated the creation of disciplinary tribunals to oversee the work of permanent judges, the Supreme Court exercised such disciplinary powers for over a decade, until the new National Assembly appointed judges to the disciplinary tribunals in 2011.)[8]
The Judicial Commission has granted stability of tenure to hundreds of provisional and temporary judges.[9] In theory, this reduction in the number of provisional and temporary judgeships is a positive development. However, these new positions were not won through open competitions, as required by the Venezuelan constitution, but rather through promotions of provisional and temporary judges who had been appointed at the full discretion of the Judicial Commission.[10]
The Record of the Supreme Court Since 2004
Since the political takeover of the judiciary in 2004, the Supreme Court and lower courts have repeatedly failed to fulfill their role as checks on arbitrary state action and guarantors of basic rights.
A Decade Under Chávez documented this failure in various high impact cases prior to 2008—including the 2004 court-packing law, [11] the sweeping constitutional reform proposals promoted by Chávez in 2007, [12] the closure of Radio Caracas Television (RCTV) in 2007, [13] the government's interference in the union elections, [14] and a range of other cases involving the erosion of basic human rights guarantees. [15]
Since 2008, the judiciary has continued to abdicate its role as a check on arbitrary state action. According to the respected nongovernmental organization Venezuelan Program of Education and Action in Human Rights (Programa Venezolano de Educación - Acción en Derechos Humanos, PROVEA), in 2009 and 2010 the Supreme Court rejected or failed to adopt a decision on the merits in 90 percent of the cases in which individuals challenged actions by President Chávez, the National Assembly, and other state institutions controlled by Chávez supporters.[16] Similarly, a comprehensive study by a Venezuelan scholar found that, during an 18-month period between 2007 and 2008, the vast majority of cases handled by the Supreme Court's Political Administrative Chamber, the highest body to hear petitions against the state, were decided in favor of the government. In over 80 percent of the 293 rulings in which petitioners asked the court to annul a government decision, the court ruled against the petitioners.[17]
Rejecting the Principle of Separation of Powers
In recent years, justices on the packed Supreme Court have openly rejected the notion of the judiciary as an independent branch of government. Instead of serving as a check on arbitrary state action, they have espoused the view that the role of the country's courts is to support the political agenda of President Chávez.
For example, at the public ceremony initiating judicial activities for 2011, the keynote speaker, Justice Fernando Torre Alba, declared that the judiciary has the duty to participate in the effective implementation of the government's public policy to develop "a deliberate and planned action to carry out a Bolivarian and democratic socialism" and that the courts "must severely…sanction behaviors or correct judicial cases that undermine the construction of [this] Socialism."[18]
Later that year, Supreme Court President Luisa Estella Morales declared publicly that President Chávez's "direction, inspiration, and conception of the Republic is what constitutionally inspires…our activities." Addressing the president—whom she referred to as "our leader"—she said: "Here are all your institutions, and we are firmly moving forward with the responsibilities that you have given us, which we will never betray, not now, not ever."[19]
More recently, in May 2012, while addressing newly appointed judges at their swearing-in ceremony, the Supreme Court president exhorted them to understand their role as adjudicators in terms of "our revolutionary project and of the change that is taking place in Venezuela today."[20]
(This view of the judiciary's role has not been limited to the Supreme Court. As discussed later in this chapter, the provisional judge in charge of the case against Judge María Lourdes Afiuni publicly declared his loyalty to President Chávez on the website of the president's political party."I give my life for the Revolution," he wrote, "I would never betray this process and much less my Commander.")
The rejection of the principle of separation of powers has been incorporated into case law as well. In a July 2009 ruling, the Supreme Court dismissed the "so-called division, distinction or separation of powers" as "the instrument of a liberal doctrine" established to "ensure that the State remained limited to the protection of individualist interests of the ruling class."[21] The court held that this principle should not be understood to necessarily require a "homogeneous, exclusive, or excluding distribution…of tasks [and] powers" amongst branches of government.[22]
Rejecting Binding Rulings by the Inter-American Court
The Supreme Court has repeatedly ruled that the Venezuelan government is not obliged to implement binding decisions of the region's most authoritative human rights body, the Inter-American Court of Human Rights.
In December 2008, for example, the Supreme Court rejected a binding judgment in which the Inter-American Court had ordered Venezuela to reinstate four judges who had been arbitrarily removed from their positions and modify the existing mechanisms for appointing and removing judges.[23] The Inter-American Court had found that the removals and existing mechanisms undermined judicial independence in the country. But the Supreme Court dismissed the Inter-American Court's ruling as "inadmissible" on the grounds that it "violate[d] the Venezuelan state's sovereignty."
In the ruling, the Supreme Court went so far as to recommend that the executive branch renounce Venezuela as a signatory to the American Convention on Human Rights, a treaty to which Venezuela has been a party since 1977. Such a measure would mean renouncing the country's commitment to upholding the region's foundational human rights treaty and denying Venezuelan citizens recourse to the region's principal human rights enforcement mechanism.
More recently, in October 2011, the Supreme Court rejected a binding judgment in which the Inter-American Court ordered Venezuela to allow opposition politician Leopoldo López to run for political office.[24] As discussed below, López was one of hundreds of politicians—most of whom were from the political opposition—who had been prohibited from seeking elected office as a result of corruption charges for which they had never been formally charged or convicted by a court of law. The Inter-American Court held that this prohibition constituted a violation of the right to run for political office, established in the American Convention on Human Rights.[25]
Again the Supreme Court argued that implementation of the Inter-American Court judgment would violate Venezuelan sovereignty.[26] In so ruling, the Supreme Court disregarded the basic principle of international law that states may not invoke provisions of domestic law to justify failing to meet their obligations under the treaties they have ratified in good faith.[27]
Ruling against the Independence of NGOs
In July 2010, the Supreme Court issued a ruling that barred a nongovernmental organization that received foreign funding from presenting a legal challenge to government policies.[28] The ruling also established that individuals or organizations receiving foreign funding could be prosecuted for treason.
The ruling came in response to an appeal brought by Súmate, a nongovernmental organization that identifies its main purpose as "promot[ing] democracy" in Venezuela, challenging the legality of the sweeping 2009 constitutional reform referendum. Súmate challenged the fact that electoral authorities had failed to comply with applicable law regarding the process to publicize the referendum before it took place. Nonetheless, the court ruled that it could not evaluate the constitutionality of a constitutional referendum before it was approved.
The court also held that Súmate had no legal standing to bring the challenge given that the nongovernmental organization was partially funded by the National Endowment for Democracy, which is itself funded by the US Congress.[29]
Even more problematically, the court held that "obtaining financial resources, either directly or indirectly, from foreign states with the intent of using them against the Republic, the interests of the people, political, social, economic, or other acts, could constitute…treason."[30] The ruling specifically cites Article 140 of the Criminal Code, which establishes a 10 to 15-year prison sentence for anyone "who collaborates directly or indirectly with a foreign country or Republic…or provides or receives money from them…that could be used against the Bolivarian Republic of Venezuela, the integrity of its territory, its republican institutions, citizens, or destabilizes the social order."[31] While treason laws are permissible under international law, they cannot be overly broad—either in form or application—so that they can be applied arbitrarily, in a discriminatory manner, or as retaliation for the legitimate exercise of internationally protected fundamental rights, including the rights to peaceful expression, association, and assembly. The article in the Venezuelan Criminal Code on treason and the Supreme Court's ruling do not comply with these basic safeguards.
As discussed further in the chapter on human rights defenders, the Supreme Court ruling could have serious negative implications for defenders in Venezuela who (like other defenders throughout Latin America) rely on foreign funding to finance their work. Under this ruling, they could be disqualified from bringing legal challenges to abusive state policies. Worse still, many are facing criminal complaints brought by supporters of President Chávez, and those complaints could now lead to criminal prosecution for alleged treason.
The Supreme Court's ruling in this case runs counter to Venezuela's obligation to refrain from imposing arbitrary limitations on the ability of nongovernmental organizations to solicit and receive funds for their activities. The United Nations Declaration on Human Rights Defenders specifically states that "[e]veryone 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."[32] And, according to the Inter-American Human Rights Commission (IACHR), civil society organizations may legitimately receive money from foreign or international NGOs or foreign governments to promote human rights.[33]
Ruling against Government Transparency
In November 2008, the nongovernmental organization Public Space (Espacio Público) asked the Comptroller General's Office for information regarding the salaries earned by members of its staff, including the comptroller general himself. The office denied the request, claiming that releasing this information would entail "an invasion of the privacy of public officials, which would violate the rights to honor and privacy."[34] Public Space appealed this decision to the Supreme Court.
The right to seek, receive, and impart information—recognized in the American Convention on Human Rights and the International Covenant on Civil and Political Rights—encompasses a positive obligation of states to provide access to official information in a timely and complete manner. This obligation 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. The Model Law on Access to Information—which was approved by the OAS General Assembly in June 2010—specifically states that every individual has the right to request information "without having to justify the reasons" for asking for it. It also states that the salaries of high-level officials, and the salary scales of all government officials, should be proactively disseminated by governments.[35]
Nonetheless, in July 2010, the Supreme Court rejected Public Space's appeal on the grounds that "information regarding the salaries of public officials is part of the officials' privacy" and that Public Space "did not demonstrate how the requested information would be useful for citizen participation in favor of transparency."[36] In the ruling the Supreme Court also established additional restrictions on access to official information that are inconsistent with international norms regarding the right to information. These restrictions include requirements that requests for information from government offices must explicitly state the reasons for requesting such information and the purposes for which it will be used, and that the amount of required information should be proportionate to the use the party making the request would give to it, without specifying who would make such determination.[37] These overly broad and onerous requirements impose a burden on the individual to justify why he or she should be entitled to information, rather than placing the burden on the authorities to justify why certain information should be legitimately withheld. Furthermore, the restrictions open the opportunity for arbitrary and discriminatory determinations to be made.
Upholding Prior Censorship
In November 2010, the Supreme Court upheld state censorship of a series of political advertisements that criticized legislation being promoted by the Chávez government.[38] The proposed legislation sought to define, establish, and regulate the existence of "social property" in Venezuela. The advertisements included six 30-second spots in which ordinary citizens—including a housewife, a taxi driver, and a young woman working in a family-owned bakery—describe the effort they put into acquiring their property and conclude by committing to "defend" that property should someone try to take it away from them.[39]
In July 2009, the National Telecommunications Commission (Comisión Nacional de Telecomunicaciones, CONATEL) ordered TV and radio stations to stop broadcasting the spots immediately on the grounds that the ads "contain[ed] messages that could cause anguish, fear, and unrest in the population, which could encourage group actions to alter the public order that could threaten the security of the nation."[40] CONATEL also prohibited the broadcast of any "similar" advertisements in the future.[41] Diosdado Cabello, then CONATEL's director, publicly justified the decision on the grounds that "it is a crime to undermine the mental health of the population with this type of campaign."[42]
The Center to Disseminate Economic Knowledge for Liberty (Centro de Divulgación del Conocimiento Económico para la Libertad, CEDICE), one of the nongovernmental organizations that prepared the campaign, appealed CONATEL's decision to the Supreme Court, arguing it constituted prior censorship and infringed on their right to free speech.
Under international human rights law, a blanket ban on advertisements criticizing an official legislative proposal constitutes an unreasonable restriction on the right to free speech. As described in the last chapter of this report, Article 13 of the American Convention explicitly prohibits prior censorship. The Declaration of Principles on Freedom of Expression, adopted by the IACHR in 2000, explicitly prohibits "[p]rior conditioning of expressions, such as truthfulness, timeliness or impartiality," and states that "[p]rior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law." The declaration also states that "restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression."
Nonetheless, the Supreme Court rejected the appeal, upholding CONATEL's decision on the grounds that these spots "could affect democracy, peace, and human rights" and "could generate situations that could affect the general interest." The court held that the right to free speech is "not absolute, and instead is limited by constitutional values and principles," and that CONATEL had correctly restricted a "particular interest" to protect a "public" one.[43] (Additionally, the court decided that CEDICE did not have standing to represent the right of Venezuelans to have access to information and that, being an organization and not a human being, it had no right to free speech.)
Upholding Presidential Power to Establish Crimes by Decree
The Inter-American Court has previously advised that basic rights should only be limited by a law issued by a legislative branch as opposed to one imposed through decree by the head of state.[44] Yet, in December 2010, the National Assembly authorized President Chávez to unilaterally establish crimes as part of an "enabling law" that granted him broad powers to legislate by decree for 18 months on a wide variety of issues during this period.[45]
In March 2011, Chávez used this authority to decree the reinstatement of a crime—involving the misappropriation of bank funds—that had been removed from a banking law by the National Assembly the previous December.[46] Shortly after the president's decree, the Attorney General's Office requested that the Supreme Court determine whether it could bring charges under the new legal provision against two men who had originally been charged under the old legislation (before the latter had been modified). The Supreme Court ruled that the prosecution could indeed proceed under the new provisions decreed by President Chávez.[47]
The reasoning offered by the Supreme Court to justify this ruling demonstrated a disturbingly cavalier attitude toward international human rights norms. The court maintained that the removal of the crime from the old law in December had been an illegitimate action on the grounds that—according to the court—banking crimes are "crimes against humanity" and thus could not be decriminalized. The court argued that, "an obligation to prosecute and sanction those responsible of crimes against humanity derives from general principles of international law."[48]
International law does indeed oblige states to prosecute crimes against humanity. Yet the internationally recognized concept of "crimes against humanity"—which is clearly defined in multiple international instruments—does not cover banking crimes.[49]
Upholding the Government's Power to Impose Mandatory Broadcasts
The Chávez government has for years made extensive use of its power to require private media to broadcast government spots and presidential speeches.[50] According to information provided by the Center for Communications Studies of the Catholic University Andrés Bello to the IACHR, "between February 1999 and July 2009, the Venezuelan communications media transmitted a total of 1,923 blanket presidential broadcasts, equivalent to…52 days of uninterrupted broadcasting of presidential messages."[51]
In 2007, Globovisión filed an appeal with the Supreme Court after the government required it to air several mandatory broadcasts between one and four times per day for a period of 10 to 30 days. One of the spots that was required shows images of the national flag and subsequent images of protestors with the national flag upside down, played along with audio of a song that says, "Those who turn around the Venezuelan flag are not good Venezuelans. They are villains who do not love Venezuela."[52] Another spot celebrates the construction of a viaduct as an accomplishment of the Chávez administration, presenting smiling workers who praise the "progress [of] the Bolivarian Revolution."[53] Globovisión argued that the obligation to air these messages for free imposed excessive restrictions on its right to free speech. (It also alleged a violation of its right to "economic freedom.")
Under international human rights norms, a government can require private media to broadcast official statements when these statements include information of general interest—but for such interference to be justified it must have a legitimate purpose, and the contents of the message should be necessary and proportionate to fulfill that aim. According to the IACHR, "the information that the president transmits to the public through blanket broadcasts should be that which is strictly necessary to serve urgent informational needs on subjects of clear and genuine public interest and during the time that is strictly necessary to transmit such information."[54] Moreover, according to the commission, "[p]ermitting governments the unlimited use of independent communications media, under the justification of informing citizens about every issue related to the functioning of the state or about different issues that are not urgent or necessary and that the citizenry can obtain information about from other sources, leads to, in practice, the acceptance of the right of governments to impose upon the communications media the content that they must broadcast."[55]
Nonetheless, in May 2011, after a four-year delay, the Supreme Court rejected Globovisión's appeal.[56] In a single paragraph, absent of any thorough analysis of the content of the mandatory messages, the court held that there was no violation of the right to free expression, and that failing to air these messages would "violate the people's right to be informed about important issues and achievements of the state." (In another brief paragraph, the court also held that Globovisión had not suffered any economic damage for having to air these messages, and that its obligation to air them was its "social duty toward the State and the people.")
CONATEL has subsequently cited the Supreme Court's ruling to order Globovisión to air additional mandatory broadcasts celebrating purported accomplishments by the Chávez administration.[57]
Ruling against the Right to Run For Office
In August 2008, the Supreme Court ruled that the decision by the Comptroller General's Office to temporarily disqualify individuals accused of corruption from running for public office—before they were formally charged and convicted of a crime—was constitutional and compatible with the American Convention of Human Rights. This practice, however, violates the right to run for public office.
Under Venezuelan law, the comptroller general has discretionary powers to "suspend the responsible individual from his position without pay for up to 24 months…or to remove the individual from office…and…to bar the individual from occupying any public office for up to 15 years..."[58] As of May 2012, approximately 800 individuals had been politically disqualified by the Comptroller General's Office, barring them from taking public office for one to fifteen years.[59] (At this writing, approximately 300 remained politically disqualified.)[60]
In 2005, Leopoldo López, a prominent opposition leader, and four other politicians who had been blocked from running for office by the Comptroller General's Office on grounds of alleged financial improprieties appealed their cases to the Supreme Court.[61] In August 2008, two months before regional elections in which López was seeking to run for mayor, the Supreme Court rejected the appeal, holding that the comptroller general's power to disqualify individuals did not violate their due process rights.[62] The following day, in a separate ruling, the Supreme Court held that these disqualifications were constitutional and compatible with the Inter-American human rights system.[63]
Yet, when the Inter-American Court subsequently examined the case, it found just the opposite. In a September 2011 judgment, the Inter-American Court ruled that López's political disqualifications violated his right to seek election to public office.[64] The American Convention stipulates that a law may regulate political rights "only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent courtin criminal proceedings."[65] The court found that none of these requirements had been met, and that López's disqualification constituted an undue restriction of his right to run for public office.[66]
Nonetheless, the following month, the Supreme Court refused to order that the Inter-American Court ruling be implemented. Supreme Court President Luisa Estella Morales stated in a press conference that the ruling was "impossible to execute" as it would require "backtracking" on Venezuela's fight against corruption. She also said that while López could run for office, she could not comment on whether he would eventually be able to take office if elected because "the court cannot comment on events that have not occurred."[67] She also stated that individuals who were politically disqualified by the comptroller could not hold public positions that require managing public funds.[68]
López, who had announced his presidential candidacy the previous year, stated in January 2012 that he would withdraw and would no longer participate in the opposition primaries. [69]
Ruling against the Independence of Lower Court Judges
The Supreme Court has repeatedly upheld case law stating that provisional and temporary judges may be removed from office at the sole discretion of the Judicial Commission of the Supreme Court, despite the fact that this undermines judicial independence.
A Decade Under Chávez documented how the Judicial Commission of the packed Supreme Court had summarily fired hundreds of judges who lacked security of tenure, extending the impact of the 2004 court-packing law to the entire judiciary. The Inter-American Court of Human Rights and the United Nations rapporteur on the independence of judges and lawyers have stated that these discretionary removals of judges run counter to Venezuela's international human rights obligation to ensure judicial independence and increase the risk of undue interference in the judiciary.[70]
In response, the packed Supreme Court has repeatedly sought to justify giving its Judicial Commission such broad discretion by pointing out that provisional judges had not participated in the public competitions required to enter the judiciary and by stating that temporary appointments are necessary to keep the judiciary functional while it undergoes ongoing structural reform. However, neither explanation justifies the subjective and discretionary manner in which the choice of judges to remove or appoint was made. The 1999 constitution provides for a process of public competitions through which judges can be appointed, which could have been used. Such a framework provides the potential for objective, independent appointments to be reached. Instead, this process was circumvented to empower the Judicial Commission unfettered choice in the selection of judges.
For example, in the case of Yolanda del Carmen Vivas Guerrero, whose appointment as provisional judge in the state of Mérida was revoked in June 2005, the court ruled that, while tenured judges can only be removed or sanctioned after receiving an oral public hearing with full due process guarantees, provisional judges can be summarily fired at the discretion of the Judicial Commission.[71] This decision was cited as supporting precedent in subsequent rulings.[72]
Judge María Lourdes Afiuni
On December 10, 2009, Judge María Lourdes Afiuni was arrested after she authorized the conditional release of Eligio Cedeño—a prominent critic of President Chávez—who had been in prison awaiting trial on corruption charges for almost three years.[73]
Venezuelan law places a two-year limit on pretrial detention, and allows this period to be extended only in very exceptional circumstances—including when the delay in the trial has been caused by the defendant or his or her legal representatives.[74] In the Cedeño case, the delay had been the result of the lack of action by the Attorney General's Office.[75]
Venezuelan law allows judges to "substitute" the pretrial detention of a suspect with other "less burdensome" measures "whenever [the judge] considers it prudent."[76]
The conditions for release that Judge Afiuni imposed on Cedeño included a requirement that he present himself before the court every 15 days and a prohibition on leaving the country.[77] To ensure his compliance, she also ordered him to turn over his passport.[78]
In granting the conditional release, Judge Afiuni was complying with a recommendation by the UN Working Group on Arbitrary Detention, which had determined that Cedeño's prolonged detention was arbitrary given that the delay in his trial had been caused by the prosecution. The working group had also concluded that there was no evidence to assume Cedeño would flee, noting that he had voluntarily presented himself before the court when the case against him began in 2007. The working group had urged Venezuelan authorities to grant Cedeño provisional liberty.[79]
Immediately after issuing the decision, Afiuni was arrested on charges of having committed a crime when granting conditional liberty to Cedeño (the actual arrest warrant was issued later that day, according to her defense team).[80]
The following day, President Chávez denounced Judge Afiuni as a "bandit" on national television and called for her to be sentenced to 30 years in prison, the maximum sentence possible in Venezuela.[81] A few days later, he said she was "correctly jailed" and reiterated that she should be given a maximum sentence, adding that he "would give her 35 years."[82]
A week after Afiuni's arrest, after spending a few days in hiding, Cedeño fled the country. He left Venezuela on a boat to an island and flew from there to the United States in a private plane. He immediately sought asylum, which was granted to him in May 2011.[83]
Dubious Criminal Charges
In January 2010, prosecutors charged Judge Afiuni with corruption, abuse of authority, and "favoring evasion of justice." Prosecutors provided no credible evidence to substantiate the charges.
With regards to the corruption charge, prosecutors acknowledged at a later hearing that Judge Afiuni had not received any money or benefit in exchange for her action—which is a central component of the crime of corruption.[84] According to prosecutors, Judge Afiuni's decision was "in benefit of a third party and not herself, that is, the benefit was obtained by Eligio Cedeño, who was freed."[85] In other words, the alleged illicit exchange was between Cedeño (who was granted release) and Cedeño (who benefited from being granted the release). By this logic, any ruling by a judge that benefits a criminal defendant could result in the criminal prosecution of the judge.
With regards to the abuse of authority charge, prosecutors pointed to the fact that Judge Afiuni had adopted the decision during a hearing in which there were no prosecutors present. Yet, under Venezuelan law, prosecutors did not need to be present when Judge Afiuni adopted the decision to grant Cedeño provisional liberty. The Organic Code of Criminal Procedures requires a public hearing if prosecutors are requesting an extension of pretrial detention. But there is no such requirement when a competent judge decides to adopt "less burdensome measures," such as home arrest, periodic presentations before the court, or prohibitions on leaving the country.[86]
Prosecutors also backed the abuse of authority charge by pointing to the fact that an appeal regarding Cedeño's pretrial detention was pending before the Supreme Court at the time she granted the release.[87] Yet, the question pending before the Supreme Court was not whether the pretrial detention of Cedeño was legal, but rather for how long the courts could impose restrictive measures to ensure that Cedeño would attend his trial and not obstruct justice.[88] In short, the deliberation was over the duration—not the nature—of Cedeño's restrictive measures. Whatever the outcome of the appeal might have been, it would have had no bearing on Judge Afiuni's authority to replace pretrial detention with other less restrictive measures.[89]
In addition, prosecutors alleged that Judge Afiuni had failed to issue a written release order before Cedeño left the courtroom. A judicial employee subsequently declared before the courts that Afiuni had ordered her to prepare the document and had signed it, but a prosecutor who arrived at the courtroom a few minutes later forcibly took it from her hands.[90] The document resurfaced later when the Office of the Inspector General of the Judiciary submitted it to the court. (Judge Afiuni's defense team provided Human Rights Watch a copy of the document from the official case file.)[91]
As for the charges of "favoring the evasion of justice," prosecutors provided no credible evidence that Judge Afiuni had any reason to suspect Cedeño would disregard her orders and leave the country, or that the substance of her decision was inconsistent with established law. It is noteworthy that prosecutors never appealed her decision to grant him provisional liberty, and judicial authorities have never opened a disciplinary procedure to investigate and sanction her alleged misconduct.[92]
A Pro-Chávez Provisional Judge
The judge who received Afiuni's case, Ali Paredes, was a provisional appointee who, just weeks before her arrest, had publicly declared his loyalty to President Chávez on the website of the president's political party. "I give my life for the Revolution," he wrote, "I would never betray this process and much less my Commander."[93]
In May, Judge Paredes ordered Afiuni to be tried on all of the charges presented by prosecutors. The trial was postponed repeatedly as Afiuni sought to have a judge other than Judge Paredes hear the case, asserting her right to be tried by an independent judge. Under the Venezuelan constitution, judges may not "carry out political partisan activism." [94] Judge Paredes refused to recuse himself, and an appeals court rejected Afiuni's appeals. [95]
Under Venezuelan law, lower court judges are supposed to rotate courts once a year, passing along the cases they handled in a specific court to the judges who replace them there.[96] However, Judge Paredes remained in charge of Afiuni's case for nearly two years. It was not until January 2012 that a new judge was appointed to Judge Afiuni's case.[97]
A Year in Prison
Judge Afiuni was held for more than a year in a women's prison in Caracas.[98] Conditions in the facility were deplorable. She was kept in a two-by-four meter cell, which her family had to paint to cover blood and excrement stains.
Under international human rights standards, there is a clear prohibition on imprisoning pretrial detainees with convicted criminals. Yet in the facility where Afiuni spent a year, there was no separation between pretrial detainees and convicted criminals, which included more than 20 women whom she herself had sentenced while serving as a judge.
Afiuni has reported that she was repeatedly subjected to threats and acts of intimidation by inmates. In December 2009, for example, some inmates accosted her verbally with threats: "Damn bitch, we will burn you!" and "We will turn you into ground meat!"[99] In January 2010, a group of inmates threw gasoline in her cell and threatened to burn her alive.[100] In May 2010, inmates shouted at her, "We will spill your blood in the prison!" and "Damn bitch, because of people like you we are here!"[101] In November 2010, two inmates allegedly attacked her with knives and told her she "did not deserve to be in prison with them; instead she should be dead."[102]
Delayed Medical Treatment
An official psychological evaluation of Judge Afiuni concluded in March 2010 that the judge was anxious and depressed, and feared for her health and physical integrity.[103]
That same month she discovered a lump in one of her breasts.[104] Judge Paredes repeatedly refused to allow her to be evaluated by her doctor, instead authorizing her to be examined in a military hospital.[105] In July, military doctors concluded that the lump required further medical treatment. However, it was not until November that she was allowed to receive it at the Oncology Hospital Padre Machado, where doctors had to conduct tests on Afiuni in the presence of female military officers who refused to leave the room.
In addition to the lump in her breast, Afiuni started suffering hemorrhages due to problems in her uterus in November 2010. After another evaluation conducted in January 2011, the medical team at the Oncology Hospital operated on her the following month.[106]
House Arrest
Only after a crescendo of criticism from the international community did Judge Paredes finally relent and grant Judge Afiuni home arrest after her surgery in February 2011. [107] However, he imposed highly restrictive conditions, including the requirement that 16 members of the National Guard be based at her building 24 hours a day; a requirement that she present herself before the court every week (a seemingly gratuitous obligation for someone confined to house arrest); and a prohibition on her communicating with the press (including international and local print media, radio, and television [108] ). Judge Paredes also prohibited her from stepping outside her apartment in order to get exposure to the sun, although it was a measure her doctor had recommended to improve her health. [109]
In December 2011, Judge Paredes extended Judge Afiuni's house arrest two additional years.[110] An appeals court upheld the decision in March 2012.[111]
As of May 2012, Judge Afiuni still had not been told whether the lump in her breast is a malign or benign tumor. In February 2012, a medical examination by doctors appointed by the court recommended that the lump be studied through a biopsy. Following the advice of her personal doctor, she asked the court to obtain a second medical opinion, which a new judge appointed to her case authorized in May.[112]
International Condemnation
The arrest and prolonged detention of Judge Afiuni has drawn strenuous condemnation by UN and Inter-American human rights monitors.
In December 2009, three UN human rights rapporteurs issued a joint press release describing Afiuni's arrest as "a blow by President Hugo Chávez to the independence of judges and lawyers in the country," and called for her "immediate and unconditional" release.[113] One of them, the Special Rapporteur on the independence of judges and lawyers, reiterated concern over Judge Afiuni's detention in a statement in April 2010.[114] In March 2011, the chairperson of the Working Group on Arbitrary Detention called on the government of Venezuela to "immediately free" Afiuni.[115] Finally, in December 2011, three UN rapporteurs questioned the fact that Judge Afiuni's house arrest had been extended, calling it an "unacceptable worsening of her situation," and called once again for her immediate release.[116]
Similarly, in January 2010, the IACHR ruled that Venezuela had to protect Judge Afiuni and "adopt the necessary measures to guarantee [her] life and physical integrity."[117] Given the lack of compliance by the Venezuelan government, the Inter-American Court of Human Rights, which issues binding decisions, ordered Venezuela in December 2010 to protect Judge Afiuni, transfer her to a safe location, and provide her with adequate medical treatment.[118]
The treatment of Afiuni has also been denounced by other members of the international community. For example, during Venezuela's Universal Periodic Review before the United Nations Human Rights Council in September 2011, the governments of Germany and the United States criticized Venezuela for the lack of judicial independence in the country, the risk of political interference in judicial decisions, and Judge Afiuni's detention.[119]
Other international voices have expressed concern over the case as well, including US scholar Noam Chomsky, who has previously spoken out in defense of the Chávez government's human rights record. In July 2011, Chomsky wrote a public letter lamenting the "acts of violence and humiliation" that Afiuni had suffered and urging Venezuelan authorities to release her from house arrest.[120] In December 2011, he reiterated his request, stating that, "Afiuni has suffered enough and should be released."[121]
Lack of Protection by the Supreme Court
The Supreme Court has twice rejected appeals by Judge Afiuni seeking protection of basic rights. In one, Judge Afiuni challenged Judge Paredes' order prohibiting her from speaking with the media (on the grounds that it violated her right to free speech) and requiring that she present herself before the court on a weekly basis (on the grounds that this requirement normally applies to defendants released on conditional liberty but serves no purpose in the case of someone under house arrest). The court rejected the appeal in July 2011, stating that it may not review a lower court decision unless it violates constitutional rights. According to the court, Afiuni was in a better situation with these precautionary measures than when she was detained in prison, and therefore there was no "real damage" that justified the appeal.[122]
In another appeal, Judge Afiuni challenged Judge Paredes' decision to proceed with the trial without the two-member jury (escabinos) required by law. Venezuelan law applicable at the time required that a three-member panel made up of the judge and two jurors determine the culpability of the accused in cases such as this one, which carry a maximum sentence of at least four years in prison.[123] Under the then-applicable law, if members of the jury did not appear for a trial and failed to provide a reason for their absence, the judge could move ahead with the trial without jurors.[124] Judge Paredes invoked this provision when announcing he would try the case without jurors. Judge Afiuni's defense team argued in the appeal that judicial authorities had failed to provide adequate notice to individuals who had been selected as jurors and to review the reasons others provided to justify their lack of appearance before the court.[125]
In October 2011, the Supreme Court rejected the appeal on the jury question without addressing the merits, ruling that Afiuni's lawyers had "desisted" from their appeal because they had failed to act on the case for more than six months. [126] According to Afiuni's lawyers, however, this was a purely legal question that the court needed to resolve and there was nothing they could do during those six months but await the court's decision. [127]
Impact on Judicial Independence
The imprisonment and prosecution of Judge Afiuni has had a profoundly negative impact on the judiciary, according to dozens of members of the legal profession—including judges, lawyers, and law professors—who spoke with Human Rights Watch.
Since the political takeover of the Supreme Court in 2004, lower court judges have been afraid of issuing rulings that might upset the Chávez government. But whereas in the past what they feared was losing their jobs, now they also fear being thrown in jail.[128]
One judge told Human Rights Watch that, since Judge Afiuni was detained, judges have felt "more pressure to resolve in favor of the government," and that those unwilling to succumb to the pressure routinely recuse themselves from politically sensitive cases.[129] Another said that judges get phone calls from higher court judges "on a daily basis" telling them how to decide cases, and everyone is "very scared to adopt proper legal decisions" because they know "what the consequences will be" if the Chávez government takes issue with their rulings.[130] A third judge told Human Rights Watch that the majority of judges refuse to rule against "what they perceive to be the government interest," even if no government official has commented on the case.[131]
According to Judge Afiuni herself, many judges have told her privately that "they do not have an alternative to obeying the government's orders" because they now fear that if they do not, they will be imprisoned.When she was detained in prison, some inmates told her that the judges in charge of their cases had said to them that they could not let them go, even if there was evidence in their favor, because "they would go to jail like Afiuni."[132]
A report by the International Bar Association published in 2011 documented that, while conducting research in Venezuela, their researchers heard "on several occasions" that "nobody wants to be the next Afiuni" and concluded that her detention "has had a chilling effect on the independence of the judiciary in Venezuela."[133]
The Inter-American Human Rights System
In addition to undermining the role of the judiciary, the Chávez government has actively sought to limit the role of the Inter-American human rights system as an alternative mechanism for monitoring and enforcing human rights in Venezuela.
For decades, the Inter-American Court of Human Rights, based in San José, Costa Rica, and the IACHR, based in Washington, D.C., have closely monitored the human rights situation in Venezuela and countries throughout the region, providing a crucial mechanism for redressing abuses when local remedies are ineffective or unavailable. Venezuela has been a party to the American Convention on Human Rights and subject to the jurisdiction of the Inter-American Court since 1977.[134]
Yet President Chávez and members of his administration have aggressively sought to discredit the Inter-American system by repeatedly accusing the Inter-American Commission of having supported the 2002 coup d'état against Chávez. Specifically, they allege that the commission was "silent" during the coup and granted recognition to the de facto government that was installed temporarily after Chávez's ouster.[135]
The IACHR in fact issued a press release on April 13, 2002, expressing concern that President Chávez's removal from office two days earlier "could constitute an interruption of the constitutional order as defined in the Democratic Charter" and urging "to promptly restore the rule of law and the democratic system of government by guaranteeing full observance of human rights and basic freedoms."[136] In the statement, the commission also "deplore[d] the dismissal, by a decree issued by the government that took office on April 12, of the highest officers of the judiciary and of independent officials within the executive branch, and the suspension of the mandate of the members of the legislature."[137]
The Chávez administration has nonetheless used these allegations to justify denying the commission permission to carry out research in Venezuela, and to dismiss the commission's assessments of the country's human rights problems. When the IACHR published a comprehensive report in 2009, for example, President Chávez repeated the allegation that the commission had supported the coup, and announced that Venezuela should "denounce" the American Convention and no longer be subject to the Inter-American human rights system.[138] A high level official in Chávez's political party stated at the time that the Inter-American Court was a "political instrument…that responds to the imperial interests represented by the Central Intelligence Agency."[139] The country's human rights ombudsman, Gabriela Ramírez, also criticized the commission for its response to the coup and stated that the report was biased.[140]
On another occasion, when the Inter-American Commission criticized the detention of Globovisión president Guillermo Zuloaga in March 2010 (see the following chapter), Chávez's foreign affairs minister, Nicolás Maduro, publicly dismissed the commission, claiming it reflected solely the views of the "coup-plotting opposition."[141] Roy Chaderton, the Venezuelan ambassador before the OAS, said the regional body was interfering with Venezuelan internal affairs.[142]
A similar situation arose when, in December 2010, the IACHR and its Office of the Special Rapporteur for Freedom of Expression criticized proposed legislation under discussion in the National Assembly. [143] In response, Ambassador Chaderton stated a day later that members of the commission were "characters at the service of the US Central Intelligence Agency's strategies and silent accomplices of the continuous human rights violations committed at the Inter-American and global level by the most violent military power of the world." [144]
Chávez's supporters in other government offices have also publicly dismissed the authority of the Inter-American system. For example, in 2010, the human rights ombudsperson said the IACHR was not impartial, lacked credibility, and should be closed. [145]
As discussed above, the Supreme Court has rejected binding rulings by the Inter-American Court and gone so far as to recommend that President Chávez renounce Venezuela's status as a signatory to the American Convention. More recently, Supreme Court President Luisa Estella Morales publicly dismissed the Inter-American Commission after it issued a press release expressing concern over clashes between inmates and security forces in La Planta prison in Caracas that led to the deaths of two individuals and injuries of seven others and calling on Venezuelan authorities to investigate these incidents and adopt measures to disarm the prison population.[146] When a journalist asked her opinion, Estella Morales stated that Venezuela was a "democratic, autonomous, and sovereign state" and that the "Venezuelan justice system has the capacity to resolve its own problems."[147] And in June 2012, she spoke in favor of withdrawing from the IACHR, arguing that international treaties "must respect the self determination of the people and their sovereignty."[148]
In addition to disparaging the Inter-American Court and Commission, in recent years the Chávez government has begun promoting the creation of new regional bodies to replace the Inter-American human rights system.[149] In early December 2011, the government supported a proposal by Ecuador calling for the creation of a new regional human rights body and the adoption of recommendations in an OAS report that could reduce funding for the OAS Office of the Special Rapporteur for Freedom of Expression and jeopardize that body's ability to publish its own annual report.[150] And in May 2012, Venezuela's foreign affairs minister proposed the creation of new regional human rights bodies beyond "the experience of an international bureaucracy controlled from Washington."[151]
In April 2012, President Chávez appointed members to the "State Council" (Consejo de Estado), an institution created by the 1999 constitution that had never functioned in the country, and asked them to analyze how to "immediately withdraw Venezuela from the sadly famous IACHR."[152] Days later, the attorney general said in a radio interview that the IACHR had "maintained a systematic persecution against the country since 1999" and proposed creating a new regional body to replace it.[153] The National Assembly has also supported the move.[154]
The Media
Expanded Powers to Censor and Punish Critics
A Decade Under Chávez documented how President Chávez and his supporters in the National Assembly had undermined freedom of expression through a variety of laws and policies aimed at influencing the control and content of the country's mass media. Specifically, they had expanded the scope of criminal law 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 had increased the number of public officials benefiting from the protection of insult laws and greatly increased penalties, including prison terms, for criminal defamation.
Additionally, the 2004 Law on Social Responsibility in Radio and Television (hereinafter the "Broadcasting Law") expanded the scope of an already broad prohibition on incitement and established severe penalties for broadcasters that violated it.[155] 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. Enforcement of these provisions is left to the state broadcasting authority, the National Telecommunications Commission (Comisión Nacional de Telecomunicaciones, CONATEL), which answers directly to the vice president of the country. 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 broadcast media's vulnerability to arbitrary interference and pressure to engage in self-censorship.
Since 2008, President Chávez and his supporters have adopted additional amendments to applicable laws that further expand the government's ability to regulate the media and to harass and intimidate critical media outlets.
In December 2010, the National Assembly amended the Broadcasting Law to extend existing restrictions on free speech to the internet. The amended law prohibits electronic media from transmitting messages that "foment anxiety in the public or disturb public order," "incite or promote disobedience of the current legal order," "refuse to recognize the legitimately constituted authority," or "incite or promote hatred or intolerance."[156] CONATEL may order internet service providers to restrict access to websites that contain expressions deemed to violate these restrictions. Both websites and service providers that fail to comply with such orders are subject to fines of up to 4 percent of their gross income in the previous tax year.[157]
In addition, the December 2010 law expands the government's control over radio and television broadcasters, similarly prohibiting them from broadcasting messages that "foment anxiety in the public or disturb public order" or "refuse to recognize the legitimately constituted authority." It also prohibits radio and television broadcasters from airing "anonymous" messages. CONATEL can sanction any violation of this prohibition by suspending their transmissions for up to 72 hours and/or imposing a fine of up to 10 percent of their gross income in the previous tax year. The agency can also revoke broadcasters' licenses if they are deemed to have aired messages "against the security of the nation."[158]
Under the 2010 Broadcasting Law, CONATEL also has broad powers to censor information. CONATEL can order radio stations, television stations, or electronic media to "abstain from issuing messages" that could violate the law. These "precautionary measures" can be adopted by CONATEL preemptively, before a determination has been made regarding whether a violation has in fact taken place. If a media outlet violates the precautionary measure, CONATEL may revoke the outlet's permit to operate.[159]
In December 2010, the National Assembly also amended the Organic Law on Telecommunications to grant CONATEL the power to suspend or revoke broadcasting concessions to private outlets if it considers that such action is "convenient for the interests of the nation, or if public order and security demands it."[160]
Radio Caracas Televisión (RCTV) was once one of Venezuela's most widely watched television stations and a constant critic of President Chávez. By 2006, it was one of just two stations available without cable television service that maintained an editorial line openly critical of the government.[161]
In response to this critical coverage, President Chávez had repeatedly threatened not to renew RCTV's broadcasting concession—including in November 2006 after the channel broadcast footage of Chávez's energy minister telling his employees at the state oil company that they should resign from their jobs if they did not support the president's political agenda.[162] The following month, President Chávez made good on the promise, announcing on a nationwide broadcast that he would not renew RCTV's broadcasting license when it expired in 2007. Filmed standing on a military parade ground, he declared 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!"[163]
RCTV stopped transmitting on the public airwaves in May 2007.[164] That same month, the Supreme Court ordered the "temporary" transfer—which remains in effect five years later—of RCTV's equipment to TVES, the state channel created to replace RCTV.[165] In July 2007, RCTV created a cable station, called RCTV International, which continued to produce programming critical of President Chávez.
Since then, the Chávez administration has again moved against RCTV, this time using its regulatory power to drive the channel off cable television. In January 2010, CONATEL determined that RCTV International was a "national audiovisual producer"—which meant it was subject to regulations CONATEL had enacted a month earlier for cable channels with more than 30 percent Venezuelan-produced programming—including the obligation to interrupt regular programming to air mandatory government and presidential broadcasts, and a prohibition on interrupting regular programming with commercial advertisements.[166] (Advertisements must instead be run between programs.)
Days after CONATEL made this determination, Chávez's communications minister threatened to open administrative investigations against cable providers whose broadcast channels were not in compliance with the new norms. In response, the country's cable providers stopped broadcasting RCTV International.[167] (The cable providers also stopped broadcasting six other channels, but resumed broadcasting these shortly thereafter.)[168]
RCTV asked CONATEL to reconsider its decision to classify its cable channel as a "national audiovisual producer," stating that it would adapt its programing to fit the criteria of an "international channel."[169] CONATEL rejected the request.
RCTV subsequently requested that CONATEL formally register the channel as a national audiovisual producer. But CONATEL rejected this request as well, maintaining that RCTV had taken more than 15 working days—since CONATEL's January 15 decision—to file the request, which, under Venezuelan administrative law, means that the petitioners had "desisted" from their interest in filing such a claim.[170] In fact, according to official documents from CONATEL, the station had been notified of the decision on January 21, had asked CONATEL to revisit its decision on February 8, and had subsequently filed the petition to be registered as a national audiovisual producer on February 22.There was never a period of 15 working days in which RCTV had failed to act.[171]
In other words, CONATEL refused to let RCTV register as an international channel because it determined it was in fact a "national" channel, and then refused to allow it to register as a "national" channel on the grounds that the broadcaster had missed the deadline for registering.
RCTV representatives told Human Rights Watch that they have since repeatedly sought to be registered as a national audiovisual producer but that every time they go to CONATEL headquarters during working hours, they are told by CONATEL officials that the "registry is closed."[172] (In February 2012, Human Rights Watch asked CONATEL for updated information on the status of RCTV's request, but received no response.[173])
In addition to requesting that CONATEL register RCTV International, the company on February 22, 2010 asked CONATEL for authorization to create a new international channel, RCTV Mundo. Once again, CONATEL rejected the petition, stating that the information provided on RCTV Mundo's future programming was "inexact and incomplete."[174]
RCTV has presented multiple legal appeals to the Supreme Court, but as of March 2012, all of the appeals remained pending.[175] RCTV's petitions include an appeal of CONATEL's 2007 decision to take RCTV off the air; an appeal of the 2007 Supreme Court decision ordering the "temporary" transfer of RCTV's equipment to TVES; a constitutional appeal of the 2009 CONATEL regulations defining "national audiovisual producer"; an appeal against CONATEL's decision to apply such regulations to RCTV International; and an appeal of CONATEL's failure to register RCTV International as a national audiovisual producer.[176]
Today, RCTV International can only be viewed on the internet. RCTV used to broadcast five hours of news and opinion shows per day. RCTV International subsequently reduced that to a single hour of news per day. In April 2012, all news coverage by RCTV was suspended due to lack of resources.[177]
The closure of RCTV left Globovisión as the only television channel in Venezuela available without cable (and Globovisión is available only in Caracas and Valencia) that remains critical of the Chávez administration. Since its airwave concession extends through 2015, the channel has not faced imminent threat of non-renewal. However, the Chávez government has repeatedly reacted to Globovisión's critical reporting by opening administrative investigations that could lead to the station's suspension or closure.
For example, in June 2011, Globovisión reported on a prison riot and clashes between inmates and members of the National Guard in the El Rodeo prison complex near Caracas, which led to the death of at least 25 people and injuries to approximately 60 others, including inmates and members of the National Guard. During the broadcast, Globovisión reporters interviewed distressed family members, who stated that members of the National Guard were "massacring," "killing," "burning," and "beating" prisoners.[178] (Human rights defenders also reported on possible excessive use of force by security forces during the confrontations.)[179]
President Chávez responded to the coverage by publicly accusing Globovisión of "sett[ing] the country on fire" with "the sole purpose of overthrowing this government."[180]Pedro Maldonado, CONATEL's director general, declared that Globovisión's coverage was "unacceptable," claiming that the station had aired on "almost 300" occasions the "most heart-felt" and "desperate" testimonies by 18 relatives of inmates, while not airing all the statements made by government officials. He also claimed that the station had added the sound of machineguns that were not part of the original audio track (a claim that Globovisión has denied).[181]
CONATEL opened an administrative investigation into Globovisión's use of the testimonies in its coverage. It also said it would investigate whether Globovisión had violated the Broadcasting Law by airing images of members of the National Guard throwing teargas canisters, of a security force vehicle dispersing protesters with a water cannon, of a helicopter flying over the area, and of people hiding to avoid the teargas or running. [182]
Four months later, CONATEL ruled against Globovisión, imposing a US$ 2.1 million fine, which is equivalent to 7.5 percent of the company's 2010 income.[183] According to CONATEL, Globovisión had "aired messages that promoted alterations of public order, incited the commission of crimes... [and] promoted hatred for political reasons that generated anxiety in the population."[184] CONATEL determined that Globovisión committed those faults by repeatedly airing the statements of 18 alleged family members that were "compelling, charged with feelings and expressions of desperation"; by airing images that "falsely showed a situation of continuous alteration"; by "suggesting or stating" that authorities had failed to comment on the incidents; by "incorrectly inform[ing] about the inexistence of official information"; and by only once airing images showing individuals throwing rocks at the National Guard.[185]
Globovisión appealed the sanction, requesting a court an injunction to suspend its obligation to pay the fine until courts ruled on the merits of the case. A lower court judge rejected the appeal, a decision that was upheld by the Supreme Court in March 2012.[186] CONATEL subsequently asked the courts to force Globovisión to pay the fine.[187] Globovisión paid the fine in June 2012, after the Supreme Court ordered the seizure of Globovisión's assets to pay for it.[188] (According to Globovisión's lawyer, the "considerable" effort that the channel needs to make to pay the fine "affects [its] financial stability and seriously complicates its operations and finances.")[189]
Under the Broadcasting Law enacted by President Chávez and his supporters, if CONATEL were to rule against Globovisión in a second case, it could impose another monetary sanction, suspend its transmission, or revoke the channel's broadcasting license.[190] The agency currently has six additional administrative investigations open against Globovisión.
One case involves Globovisión's coverage of an earthquake in May 2009, in which the station cited information regarding the epicenter and magnitude provided by the US government's Earthquake Hazards Program, because (according to the channel) the website of the Venezuelan Foundation of Seismic Investigations (Fundación Venezolana de Investigaciones Sismológicas, FUNVISIS) was down.[191] During the coverage, a Globovisión reporter stated that "we are very worried because...we cannot find any authority to ask for precise, exact information." (The reporter also stated that "everything is quiet [now], everything is peaceful.")[192]
The following day, Cilia Flores, the pro-Chávez president of the National Assembly, criticized Globovisión's coverage of the earthquake, accusing the reporter of "blaming the government for being irresponsible" and "generating terror in the population."[193] The National Assembly subsequently asked CONATEL to open an investigation.[194]
CONATEL opened the investigation two days later, transcribing the journalist's statements about the difficulty in obtaining official information and having to rely on US sources for data on the earthquake. CONATEL argued that Globovisión had "continuously and repeatedly aired...messages regarding the earthquake" during an entire day, that these messages "could unjustifiably generate a feeling of anxiety and fear in the population," and that they could "be contrary to the security of the nation and presumably promote or incite alterations of public order."[195] At this writing, the investigation remains open.
Another case involves Globovisión's coverage of elections in November 2008, during which the channel broadcast footage of Enrique Salas Feo, the opposition candidate for governor in Carabobo state, criticizing the National Electoral Council for not reporting that he had won the vote the day after it took place. Salas Feo claimed that the National Electoral Council had access to 97.75 percent of the electoral ballots, that all preliminary results confirmed he had won the elections, and that there was no reason to delay publicizing the final results. He urged the people in Carabobo "to go to with [him] to the Electoral Council to demand [recognition of our] victory in Carabobo." Explaining his intentions, he stated: "We are simply asking for respect of the popular will... The only thing we're asking the National Electoral Council to do is release the final results because they cannot keep this region without results, which everyone knows."[196]
Three days later, CONATEL opened an administrative investigation, arguing that Globovisión had aired "messages that could presumably promote, vindicate, or incite alterations of public order."[197] According to the head of CONATEL's Directorate of Social Responsibility, Salas Feo had "urged the people of Carabobo to violently take over the regional office of the National Electoral Council."[198] Yet CONATEL's decision provides no evidence that Salas Feo's statements urged people to take over the installations, let alone do so violently. At this writing, the investigation remains open.
Three of the other four administrative investigations involve: 1) statements by the host of a political talk show who compared Chávez to Mussolini and suggested that Chávez could "end up like Mussolini, hanging with his head down"[199]; 2) the airing of a political advertisement in which individuals say they will defend their private property from any effort to take it away from them[200]; 3) the airing of messages that could have contributed to the commission of crimes, though CONATEL has not informed Globovisión which messages or which crimes.[201]
The fourth investigation concerns the displaying in 2009 of text messages from viewers across the bottom of the screen mentioning the possibility of an upcoming coup d'etat.[202] While the state has a legitimate interest in investigating genuine threats to national security or public order, as with the other investigations, CONATEL has failed to provide any updated information on the status of this investigation. To keep an investigation open for over two and half years into actions that were alleged to constitute potential incitement at the time the investigation was opened calls into question whether there was ever deemed to be any credible threat or whether the investigation was an excuse to open yet another case against a critical broadcaster.
In February 2012, Human Rights Watch asked CONATEL for updated information on the status of the six pending investigations against Globovisión, but received no response.[203]
Globovisión President Guillermo Zuloaga
In March 2010, Globovisión's president, Guillermo Zuloaga, delivered a speech at a conference of the Inter-American Press Association in Aruba in which he criticized President Chávez for the closure of RCTV and accused him of having ordered the shooting of demonstrators prior to the 2002 coup.
During the speech, Zuloaga declared: "It is not possible to talk about true free expression when a government uses its forces to repress the media, to close media outlets like Radio Caracas Televisión after 53 years on air" or "when there are more than 2,000 mandatory presidential broadcasts...[by] a President of the Republic, using his power and authority to manipulate public opinion and to try to impose a line of thought."[204]
When journalists from Venezuelan state media who were at the presentation accused him of having participated in the April 2002 coup d'état against Chávez, Zuloaga stated that Chávez had "ordered the shooting" of demonstrators prior to the coup. (Zuloaga also asserted that, at the time of the coup, the Armed Forces "had declared publicly that they had asked Chávez to resign and he had accepted," and said that he was "against what happened at that time because if it had been done correctly, we would have a different Venezuela.") [205]
Two days later, the National Assembly publicly "rejected" Zuloaga's statements in Aruba and called for a criminal investigation, alleging the Globovisión president had made "a series of false accusations" against President Chávez.[206]
The Attorney General's Office immediately began investigating Zuloaga. Two days later, it obtained an arrest warrant on charges of committing "the crimes of false information and offenses against the head of state."[207]Zuloaga was detained that day, and was then granted conditional liberty, with a prohibition on leaving the country without the court's permission.[208]
In early June 2010, in a televised speech, President Chávez expressed outrage that Zuloaga was free, insisting that he should be imprisoned for the accusation he had made in Aruba regarding the 2002 coup. He also commented that Globovisión's president had "a bunch of cars in his house [which] is a crime"—an oblique reference to the fact that a criminal investigation had been opened in May 2009 against Zuloaga and his son, who ran an auto retail business, for allegedly obtaining illegal economic benefits by keeping 24 cars off the market in order to increase their value.[209]
Two days later, members of the National Guard arrived at Zuloaga's home, saying they were conducting an investigation on illegal hunting, and seized his collection of hunting trophies.[210] The following week a judge issued arrest warrants for Zuloaga and his son to face criminal charges for alleged irregularities in their auto retail business.[211] Zuloaga's lawyers maintain that the investigation had been stalled for months, and there was no new evidence that justified the arrest warrant.[212]
On the day the warrant was issued, Zuloaga and his son fled to the United States, where they now reside. At this writing, the case against Zuloaga for alleged irregularities in his car sales business, as well as the criminal investigations of his statements in Aruba and the alleged violation of environmental laws, remain open.
Globovisión Owner Nelson Mezerhane
In December 2009, Nelson Mezerhane, one of the principal owners of Globovisión and owner of a private bank, gave an interview to a business newspaper in which he praised the work of Chávez's economy ministers but claimed that individuals "linked to the government" had spread rumors that provoked withdrawals of savings from Venezuelan banks.[213]
The interview was published at a time when the Chávez administration was nationalizing banks with the purported aim of guaranteeing Venezuelans access to their savings in bank accounts.[214]
Two days after Mezerhane's interview was published, President Chávez denounced him in a televised speech for making "extremely serious and irresponsible" statements, and said he would ask the attorney general "to open a formal investigation."[215] In another televised speech several days later, the president said "those excesses cannot be permitted" and denounced Mezerhane once again, this time identifying him as an owner of a powerful "opposition channel" and stating:
[I]f he is going to get into politics, then get into politics. As for the bank, give it to me, to the State, sir, and you [Mezerhane] go into politics. I will not allow it. And the same thing happens with the media. If a television station crosses the line again, violating the laws, lacking respect for society, the State, or institutions, it cannot, it should not remain open.[216]
Two days later, at President Chávez's behest, the Attorney General's Office opened a criminal investigation of Mezerhane.[217] Six months later, it seized several of Mezerhane's assets, including his home, personal belongings, and his Globovisión shares, while the office in charge of overseeing banks and institutions of the financial sector (called the Superintendencia de las Instituciones del Sector Bancario, SUDEBAN) ordered a takeover of his bank, alleging it had failed to comply with applicable banking laws.[218] The Attorney General's Office also forbade Mezerhane from leaving the country, but, according to his lawyer, he was abroad at the time and never returned.[219] In July, prosecutors charged Mezerhane with several banking crimes, including conspiracy, providing false financial information, and fraudulent mishandling of public funds.[220]
A day after the attorney general announced that Mezerhane had been charged with crimes, Chávez denounced Globovisión for its coverage of the bank takeover, declaring that government would not allow a TV channel to "light the country on fire." Referring to Globovisión's "fugitive owners," the president said the station was "trying to destabilize the country but we will not permit it" and announced: "I will wait a little bit to see if Globovisión's owners appear, it is necessary to wait and see if they appear, because they are on the run. We'll have to think about what will happen to this channel."[221] In another televised speech several weeks later, he stated: "We now hold 25.8 percent of [Globovision's] shares, and that gives the right to the holder to appoint a member to the Board of Directors."[222]
In August 2010, the Supreme Court authorized prosecutors to seek Mezerhane's extradition from the United States.[223] In February 2011, Interpol removed Mezerhane from its list of "red notice" alerts, arguing that several cases from Venezuela (including this one) were related to political persecutions. Attorney General Ortega Díaz criticized the decision as favoring impunity and constituting "meddling" in Venezuelan internal affairs.[224]
Globovisión Commentator Oswaldo Álvarez Paz
On March 8, 2010, Oswaldo Álvarez Paz, an opposition politician and former governor of Zulia state, appeared on Globovisión's main political talk show, "Aló Ciudadano," and commented on allegations that had been made stating the Chávez government had a relationship with "terrorist" groups and had failed to contain drug trafficking in Venezuela.
During the show, the hosts read statements by Spanish President Rodríguez Zapatero in a radio interview regarding a recent Spanish court ruling that refers to "indications of collaboration between ETA, FARC, and the Venezuelan government." Zapatero said he would seek Venezuelan government cooperation with these investigations.[225] When asked his opinion, Álvarez Paz stated that the Spanish judicial ruling "provided legal basis" for suspicions "that something very serious is happening in terms of the Venezuelan government's relations not only with ETA, [but also] with the FARC, with other subversive and terrorist movements of the world."[226] He also said that if he were president, he would fully cooperate with the Spanish investigation, "no matter who fell" even if it meant that "the one who falls is the head of state."[227]
During the interview, Álvarez Paz also said that Chávez was "not a democrat" and that he had a "subversive personality."[228] And when the host read a news article reporting that drug traffickers had been attempting to purchase airplanes in Venezuela, Álvarez Paz said that the article confirmed that "Venezuela had turned into a center of operations that facilitates the business of drug trafficking."[229]
The next day, President Chávez reacted by stating in a mandatory presidential broadcast that Álvarez Paz's statements were "very grave," "could not be permitted," and constituted "a crime that is subject to prison sentences." He urged other branches of government to "take action."[230] That same day, two legislators from Chávez's political party filed a criminal complaint with the Attorney General's Office.[231]
Two weeks later, Álvarez Paz was arrested. On March 19, a prosecutor accused Álvarez Paz of conspiracy, public incitement, and disseminating false information.[232] A judge subsequently ordered his pretrial detention, arguing that the dissemination on TV of his "evidently false statements... is so grave and irresponsible that it may, and does effectively cause... an unfounded fear" in the Venezuelan people.[233]
Álvarez Paz remained in pretrial detention for almost two months. In May 2010, after prosecutors dropped the conspiracy charge, a judge granted him conditional liberty, ordering him to present himself before the court every 15 days, remain in the country, and refrain from publicly commenting on the case.[234]
In July 2011, a court found Álvarez Paz guilty of disseminating false information. Citing jurisprudence from the Venezuelan Supreme Court that says that crimes related to drug trafficking are crimes against humanity, the judge concluded that Álvarez Paz's statements had generated "anguish in the people that results in a natural condition of extreme preoccupation and… anxiety."[235] (According to international law, a false allegation of government complicity in drug trafficking would not constitute a "crime against humanity.")[236]
The judge sentenced Álvarez Paz to two years in prison, but allowed him to serve his sentence in conditional liberty, with a prohibition on leaving the country without judicial authorization.[237] As of May 2012, an appeal presented by Álvarez Paz against the conviction remained pending.[238]
Tu Imagen TV
In November 2010, the pro-Chávez mayor of a municipality in Miranda state, José Ramírez, wrote to the cable company Tele Red, calling on it to stop broadcasting Tu Imagen TV, a local cable channel that was critical of the municipal government.
Ramírez accused the channel of having been "systematically biased in favor of the political opposition," and having aired "distorted messages against the municipality's government." The only example provided in the letter was an interview with a member of Ramírez's family (with whom he had "personal differences") who had made "pompous allegations that were offensive to human dignity and my position as mayor."[239] He provided no information on the content of the comments.
Claiming he was exercising his "rights to ensure the government and the Bolivarian Revolution are respected,"[240] Ramírez sent a copy of the letter to CONATEL, which subsequently ordered Tele Red to suspend Tu Imagen TV's broadcasts indefinitely. The reason CONATEL provided for the order was that the channel and the cable company—which had operated under an oral contract for eight years—had failed to comply with 2009 regulations that required a written contract between the parties.[241]
The following month, Tu Imagen TV and Tele Red presented a signed contract to CONATEL.[242] But the telecommunications authority waited eight months before authorizing the cable company to renew broadcasting of the channel. In addition, according to Douglas Abreu, Tu Imagen TV's general director, a senior CONATEL official warned Tele Red that that the channel would be removed from cable once again if it produced programs criticizing the government. Abreu told Human Rights Watch, "We're back on the air, but working under pressure."[243]
Censoring Satire
On August 20, 2011, the weekly newspaper 6to Poder published a satirical article that presented six high level female government authorities—including Attorney General Luisa Ortega Díaz and Supreme Court President Luisa Estella Morales Lamuño—as performers in a cabaret entitled "The Revolution," directed by "Mr. Chávez."[244] The article—which also provided information on the women's actual jobs, academic training, and professional backgrounds—described their close relationship with "Mr. Chávez" and suggested that they do President Chávez's bidding. Accompanying the article was a photomontage in which the officials' faces were superimposed upon the image of a cabaret troupe.[245]
The day the article appeared, the six officials called for a criminal investigation and for the paper to be closed down.[246] Within hours, a prosecutor sought—and a judge delivered—an arrest warrant for the paper's director, Dinora Girón, and its president, Leocenis García, on charges of "instigation of public hatred."[247]
Girón was arrested the following day by members of the Bolivarian Intelligence Service, an intelligence police that reports to the Ministry of Justice and Interior, and charged with the crimes of insult, instigation of hatred, and public offense based on gender.[248] She was granted conditional liberty two days later, with orders to appear before judicial authorities every 15 days and a prohibition on commenting publicly on her case.[249]
García went into hiding but turned himself in on August 30.[250] He was formally charged with insult, instigation of public hatred, and public offense based on gender, and imprisoned for two months. He was granted conditional liberty only after he conducted a 12-day hunger strike to protest his imprisonment.[251] The court forbade him from leaving the country, discussing his case with the media, and participating in public demonstrations.[252]
At this writing, both Girón and García remain under criminal investigation awaiting trial. Their lawyers advised Human Rights Watch that the pretrial preliminary hearing required by law had been repeatedly suspended in both cases because prosecutors have not attended the hearings.[253]
When issuing the arrest warrants, the judge also ordered 6to Poder to suspend all further distribution of its paper.[254] A week later, the court lifted the ban but ordered 6to Poder to avoid publishing material, either in text or photographs, that constitutes "an offense and/or insult to the reputation, or to the decorum, of any representative of public authorities, and whose objective is to expose them to public disdain or hatred," as well as any "humiliating and offensive content against the female gender." It also ordered 6to Poder to ensure that no copies of the paper with the satirical piece remained available to the public.[255]
Censoring News Coverage
In early February 2012, after a sewer broke in a petroleum plant in Monagas state, tens of thousands of barrels of petroleum were spilled in the Guarapiche River. Within a few days, the government reported that the vast majority of petroleum had been removed from the river. Yet the governor of Monagas, José Gregorio Briceño, announced that he would not be reopening a water treatment plant because tests had found "traces of petroleum sediment" in the river. [256] The official Venezuelan News Agency, reporting on Briceño's comments, also observed that tests performed in the area "showed signs of hydrocarbons." [257]
In mid-March, after the dispute over whether the water was contaminated received widespread news coverage, Chávez's political party expelled Briceño.[258] Chávez's vice president, Elías Jaua, explained that the party had repeatedly warned Briceño in the past that he should end his public statements attacking members of the party and going against party lines but Briceño had "persisted in his attacks."[259] On Twitter, Chávez stated, "I fully support our [party's] decision! I think governor Briceño reached his limit."[260]
The following day, Chávez's environmental minister, Alejandro Hitcher, responding to complaints about the water by an opposition party leader who stated that water in Caracas was contaminated, declared that the water was potable and that these comments were part of a "terrorist campaign" by the opposition.[261]
Several days later, in a televised speech, President Chávez echoed this charge, stating that the comments on the water contamination constituted "a dirty war" and that those who made them must "assume the responsibility for the attack to the mental health of the people."[262] He also called on the attorney general and the president of the Supreme Court to "assume their responsibilities," saying, "We should at least open an investigation."[263]
In a press conference the day after the president's speech, the attorney general announced that her office had opened a criminal investigation and was seeking a court order to prevent media outlets from reporting that water was contaminated without providing a scientific study as evidence.[264] The court granted the injunction on the same day, using very vague language that ordered all print and broadcast media to have "truthful, technical support approved by a competent body" before disseminating information on alleged contamination of drinking water.[265]
Two veteran TV and radio journalists told Human Rights Watch that, given the vague terms of the injunction—which did not specify what was meant by "truthful or technical support" or by a "competent body"—they were not able to cover the issue of alleged water contamination properly.[266] One of them stated that his producers immediately told him he could only report on possible water contamination if his report relied exclusively on official statements. The other said the injunction prohibited them from broadcasting the testimony of individuals who have been affected by what they believe was unclean water.
Censoring Violent Images
In August 2010, the independent newspaper, El Nacional, published on its front page a photograph of a dozen naked corpses in the Bello Monte morgue in Caracas. The faces of the dead men were blurred and the bodies were piled on stretchers and on the floor. The image accompanied an article about illegal arms and violence in Venezuela, and included a caption stating that 2,177 corpses had been taken to the Bello Monte morgue in the first six months of 2010.[267]
The high levels of violence, in particular soaring crime rates and the number of people killed by firearms in the country, is a major public concern and news topic in Venezuela.
The day the photograph ran, the Ombudsman's Office sought a court order requiring the newspaper to "avoid the publication of images with a violent, bloody, or grotesque content...that in one way or another, affects the mental and moral integrity of children and adolescents."[268] The Ombudsman's Office argued that viewing such images "distort[s] and perturb[s] [children], affecting their personality and… their future" and "leave[s] lasting impressions, which affect their mental and… psychological health."[269] After the newspaper Tal Cual reprinted the image in its own pages, the Ombudsman Office asked the court to expand the prohibition to all printed media in the country.[270]
Several days later, a judge imposed a broad injunction, ordering El Nacional to cease all publication of "images, information and publicity of any type containing blood, arms, and messages of terror, physical aggression, images with contents of war and messages about deaths that could alter the psychological well-being of boys, girls, and adolescents in Venezuela" until the court decided on the merits of the case.[271]
The judge also ordered all print media in the country to "abstain from publishing violent, bloody and grotesque images that undermine the psychic and moral integrity of childhood and adolescence."[272] Two days later, the court allowed El Nacional to begin publishing articles and advertisements again, but maintained the prohibition on publishing violent images.[273] It also revoked the prohibition imposed on other media.[274]
At this writing, while the case against El Nacional and Tal Cual remains pending before specialized court to protect children, the prohibition remains in effect. In addition, prosecutors have opened a criminal investigation into El Nacional's publication of the photograph.[275]
Censoring a Soap Opera
In January 2011, the popular Colombian soap opera "Chepe Fortuna"—aired in Venezuela on channel Televen—included a scene in which a character named Venezuela responds to the news that her dog, "Little Hugo" (Huguito), has been lost, by asking her boyfriend: "What will become of Venezuela without Huguito?" He tells her: "You will be free, Venezuela. Huguito made a habit of getting inside everybody's business, making you look bad, Venezuela." [276]
Soon after it was aired, the host of La Hojilla, the state TV channel's political talk show, denounced the soap opera for showing "a lack of respect for Venezuela." [277] A day later, CONATEL issued a public statement calling on Televen to "immediately suspend" the show on the grounds that it promoted "political and racial intolerance, xenophobia, and incitement to commit crimes"—a charge that could lead to civil, criminal, and administrative sanctions, including the suspension or revocation of its broadcasting license. [278]
The same day that CONATEL's statement was issued, Televen stopped airing the soap opera.[279] President Chávez subsequently denounced the soap opera in a nationally televised speech before the National Assembly, and said that he had asked someone to talk to Televen's owner so he would remove this show from the air because it demonstrated "a lack of respect for Venezuela."[280]
Remaking the Media Landscape
The Chávez administration has for years sought to justify its media policies as efforts to "democratize" the media in Venezuela.[281] As Human Rights Watch observed in A Decade Under Chávez, governments are entitled to regulate the concentration of media ownership and to back public service and community outlets in order to promote a more diverse and plural public debate.[282]
Yet, instead of promoting pluralism, the Chávez government has used its regulatory authority to expand the number of pro-government media outlets, while reducing the availability of those that engage in critical programming. Moreover, the government's major initiative to expand community radio has unfortunately been used to promote clear politically partisan goals.
While the Chávez administration only had one national TV channel during the early years of his government, today there are six public TV networks in the country, all of which maintain a strong pro-Chávez editorial line: Venezolana de Televisión, ViVe, TVes, Telesur, ANTV, and Ávila TV.[283] In addition, the National System of Public Media, created in 2006 "to contribute to create a socialist conscience," includes an official news agency, the Venezuelan News Agency (Agencia Venezolana de Noticias); three newspapers, Ciudad Caracas, Diario Vea, and Correo del Orinoco; four radio stations, La Radio del Sur, Radio Nacional de Venezuela, Radio Mundial, Alba Ciudad; two websites, The Hugo Chávez Blog and Venezuela de Verdad; and a magazine, América XXI.[284]
As noted, the Venezuelan government has also promoted the creation of community radio stations by granting licenses, and by providing capital, infrastructure grants, and training. According to CONATEL, there are currently 244 community radio stations and 36 community TV stations in the country.[285] As we observed in the 2008 report, these efforts have had the positive effect of giving new opportunities for public expression to residents of many poor communities in Venezuela.
However, an examination of the manner in which the roll out of the program has been administered and enforced indicates that the thrust of this policy has been decidedly partisan. In a 2007 interview, Andrés Izarra, then minister of communication and information, identified the promotion of community media as part of the government's pursuit of "communication and information hegemony."[286] In 2009, Mileidys Marcano,a vice minister in the Office of the Presidency, described the community media as an "arm of the Bolivarian Revolution."[287]
Today the majority of community radio stations relies on the Chávez government for funding and has an editorial line that is favorable to the government. [288] The vast majority of these stations (around 200) are affiliated with the National Movement of Alternative and Community Media, whose members—according to the association's founding declaration—share a "full commitment to the Bolivarian Revolution" and see themselves as the "communicational vanguard" in "the great battle for the defense of the Bolivarian process and the establishment of the rank and file of the socialist society of the 21st Century." [289]
As the government has promoted pro-Chávez community radio stations, it has also moved to close private radio stations. The most dramatic closure came in July 2009 when CONATEL announced it was shutting down 32 radio stations. The official reason for the closures was that these stations were out of compliance with the licensing requirements in the Organic Law on Telecommunications.[290] Local advocates of press freedom, broadcasters critical of the government, and international observers, however, believe that many of the closures were arbitrary and politically motivated.[291]
There is evidence for this view. Among the 32 radio stations closed, for example, were five stations belonging to the Belfort National Circuit chain, which broadcast programming critical of the government.[292] Nelson Belfort, one of the owners of the Belfort Circuit, told Human Rights Watch that since 2000 they had made repeated requests to regularize the legal status of the stations but CONATEL had not responded. After the closures, CONATEL claimed that Belfort and the others operating the radio stations had relinquished their licenses.[293] In August 2009, Belfort challenged the closures before the Supreme Court, arguing that he was given no opportunity to present arguments or evidence to CONATEL prior to the closures.[294] (He also argued that CONATEL for years had recognized the stations, de facto, and that the closures were the consequence of the radio stations' editorial line.) As of June 2012, the Supreme Court had still not resolved the appeal.[295]
The perception that the closures were politically motivated was reinforced by the fact that the head of CONATEL, when announcing the CONATEL's findings before the National Assembly, justified the government's media policies with a sweeping claim that some radio stations were "try[ing] to destroy the Bolivarian Revolution...to distort what we have been doing in Venezuela, where they have a number of opinion-makers without license who make up their own news."[296] Also, the National Assembly subsequently passed a resolution praising CONATEL's efforts to "democratize the media" and to "protect the mental health of Venezuelans from media terrorism, exercised by private media outlets with editorial lines that serve the interests of the national and international oligarchy."[297]
Along with the closures, CONATEL also announced in 2009 that it was reviewing the licensing status of an additional 200 radio stations, without identifying which stations these were.[298] To this day, it has not released the results of this review.
More recently, in 2011, the agency announced a nationwide campaign "to control illegal telecommunications services," and, according to press accounts, has since suspended and revoked the licenses of dozens of radio stations that it claimed had been operating illegally.[299] In February 2012, Human Rights Watch asked for updated information from CONATEL on the status of its investigations, but received no response.[300]
The Chávez government has not taken comparable steps to rein in the print media. In general, the country's leading newspapers continue to be critical of the government. However, only a limited number of Venezuela's more than 27 million people read them. In 2009, the most recent year for which we were able to obtain data, Últimas Noticias, the newspaper with greatest circulation, printed 260,000 copies per day. The circulation of the most critical papers was even smaller: El Nacional printed 120,000 copies per day; El Universal, 110,000; and Tal Cual, 40,000.[301]
Impact on Free Speech
The Chávez government's harassment, intimidation, prosecution, and censorship of media critics have had a powerful impact on broadcasters and journalists in Venezuela.
The most visible anti-Chávez media outlet remaining in the country today, Globovisión, continues to broadcast commentary and news coverage that is highly critical of the government. Nonetheless, the station's lawyers told Human Rights Watch that the administrative investigations CONATEL has opened against the channel have generated "enormous uncertainty" among its reporters.[302]For example, because CONATEL has forbade Globovisión from airing "any" information "similar" to the advertising campaign about private property that it was forced to take off the air, reporters are not sure to what extent or how they can cover criticism of the government's expropriation policies.
Similarly, since the arrest and criminal prosecution of Oswaldo Álvarez Paz, reporters ask Globovisión's lawyers "all the time" how they should cover news about drug trafficking in Venezuela.[303] Additionally, two veteran reporters at the station told Human Rights Watch that self-censorship is common. They are "more careful" when deciding which images to show while reporting. "The caution is excessive," said one. "When in doubt, we censor ourselves."[304]
The problem of self-censorship is even more acute among radio broadcasters. According to Nelson Belfort, president of the Chamber of Radio Stations between 2007 and 2011, the majority of private radio broadcasters in the country have replaced opinion shows with music or entertainment since the 2009 closure of 32 stations.[305] The nongovernmental organization PROVEA documented in its 2011 annual report that "more and more media impose self-censorship, and fewer maintain critical positions regarding government actions, [changes in] behavior motivated by desire to avoid temporary or permanent closure and millions of dollars in fines."[306] Silvia Alegrett, executive director of the National College of Journalists (Colegio Nacional de Periodistas), which represents 19,000 Venezuelan journalists, also noted that there are increasing levels of self-censorship among journalists.[307]
Unai Amenabar, a journalist who worked for 17 years in Venevisión until 2011, and who continues to work at Unión Radio, said in an interview to a Spanish paper that "independent media outlets are very scared, because they do not know when the government [will] decide to close a radio or TV station, and that leads to journalists thinking two, three, five times [about] what will be said, who will be interviewed, and how the interview will be conducted." According to Amenabar, this generates "great levels of self-censorship."[308]
Similarly, two other veteran radio journalists interviewed by Human Rights Watch also said the closures had led to an increase in self-censorship where they worked. One said that she was told by her station she could no longer "provide news information on anything that is uncomfortable for the government." She left that radio station to work in another one where she could have more freedom, but said that, given the risks, "one is 1000 times more careful about what one says" and "one begins to censor oneself out of fear of being sanctioned." For instance, when interviewing a doctor about President Chávez's health, she specifically asked the doctor not to use the word "metastasis" for fear of suffering reprisals if she broadcast it.[309]
Two of the radio journalists interviewed by Human Rights Watch said that their station had told them not to read information from certain webpages or discuss certain topics on the air, and that they could not interview certain individuals who were known critics of the government.[310] One of them was instructed "on multiple occasions" to tone down statements and questions—instructions, she says, which force a journalist to rethink every question and avoid expressing her own views.[311]
Alegrett from the National College of Journalists told Human
Rights Watch of a journalist colleague who had been instructed by the owner of
a radio station where he worked that he should refrain from commenting on the
news headlines he read because the radio was the owner's sole income and
he did not want it to be closed. Eventually the journalist was told he could
not even read the news headlines.[312]
Human Rights Defenders
Criminal Complaints against Human Rights Defenders
For years, President Chávez and his supporters have responded to criticism by local (and international) human rights defenders with unfounded allegations that their critics were receiving support from the US government to undermine Venezuelan democracy. In 2010, this tactic for deflecting criticism took a more troubling turn when Chávez supporters filed a series of criminal complaints against NGOs for receiving international funding.
In one complaint, filed on July 7, 2010, leaders of Chávez's political party (Partido Socialista Unido de Venezuela, PSUV) sought to press criminal charges against several human rights and other NGOs—along with journalists and politicians—based on a report by the National Assembly that accused them of being "traitors" for allegedly having received funding from the US government aimed at "destabilizing the country."[313]
In another case, filed on July 13, a pro-Chávez association of journalists, Movement for Necessary Journalism (Movimiento Periodismo Necesario, MPN), presented a formal complaint to the Attorney General's Office against two prominent NGOs that monitor press freedoms, Public Space (Espacio Público) and the Institute of Press and Society (Instituto de Prensa y Sociedad, IPYS), for receiving international funding and allegedly committing "crime[s] against national sovereignty."[314]
In a third, filed on August 22, several youth groups affiliated with Chávez's political party presented a complaint to the Attorney General's Office against 23 NGOs—including leading human rights organizations, such as COFAVIC, PROVEA, Citizen Watch, Public Space, and IPYS—for alleged "treason" due to having received funding from the US government.[315]
Such criminal complaints have no merit under international law and norms, which protect the right of human rights and other civil society organizations to work with, and receive assistance from, entities outside of their host state.[316] In Venezuela, as in other Latin American countries, moreover, raising funds from outside of their national base is key to enhancing human rights organizations' capacity to do their work in a sustainable manner. Domestic charitable giving to civil society groups, while somewhat more common today than in past years, is far more limited than in Europe or North America.[317]
In Venezuela, the majority of funding received by leading human rights NGOs comes from non-US sources, such as the European Union and European governments. Several of these NGOs receive no funding from US sources, and in the case of those who do receive such funding, it constitutes a fraction of their total income.[318]
The directors of several of the organizations that face criminal complaints told Human Rights Watch that they have never received any formal notification from the Attorney General's Office regarding the status of the cases against them.[319] However, as discussed below, for the past two years they have had to contend with the possibility that prosecutors could move against them at any time.
Expanded Powers to Punish Human Rights Defenders
The potential impact of these criminal complaints was greatly increased by the July 2010 Supreme Court ruling that individuals or organizations receiving foreign funding could be prosecuted for "treason"—a crime that carries a prison sentence of up to 15 years (see discussion of the Supreme Court ruling against the independence of NGOs in the first chapter of this report).
In its ruling, the Supreme Court also held that the NGO that had brought the appeal—because it received foreign funding—had no legal standing to challenge government policies. This holding could effectively provide the basis for depriving the country's human rights defenders of an essential tool for advocating on behalf of victims.
In December 2010, at the urging of President Chávez, members of the outgoing Chávez party-dominated National Assembly passed laws that imposed additional limits on NGO activity and increased human rights defenders' vulnerability to reprisals for their work.[320] One was the Law for the Defense of Political Sovereignty and National Self Determination (hereinafter the "Sovereignty Law"), which blocks organizations that "defend political rights" or "monitor the performance of public bodies" from receiving international funding.[321] Such organizations that receive international funds may be subject to a fine that is twice the amount of the foreign funding received, and may be subject to "sanctions included in other laws" as well.[322] The law does not specify which "other laws" may apply, but the language suggests that NGOs could be subject to administrative or criminal sanctions as well.
The law also states that foreigners invited to Venezuela by these groups will be summarily expelled from the country if they express opinions that "offend the institutions of the state, top officials or attack the exercise of sovereignty."[323] The organizations that invite the foreigners are subject to stiff fines.[324]
The government explicitly recognized that this law could apply to human rights NGOs when officials told the IACHR that "it is true that the Venezuelan State has been critical of NGOs that accept funding from foreign governments, which is why a law prohibiting it was enacted."[325] And in May 2012, a commission in the National Assembly cited this law as the basis for opening an investigation into the human rights NGO Transparency Venezuela.[326]
Also in December 2010, the National Assembly adopted the Organic Law on Social Control, which regulates the work of "organizations and individuals…that perform activities with an impact on general or collective interests."[327] The law states that "social control"—which may be exercised "individually or collectively through all activities in social life"—should be done on a pro bono basisand must follow "socialist principles and values."[328] Any organization that wishes to participate in these broadly defined activities must register with the government, following a procedure to be established by the president.[329] Those who violate the law may be subject to administrative, civil, or criminal sanctions.[330]
Venezuelan Observatory of Prisons
Humberto Prado is the director of the Venezuelan Observatory of Prisons (Observatorio Venezolano de Prisiones), an NGO founded in 2002 that documents abuses in Venezuela's notoriously violent prison system, advocates on behalf of prisoners' rights, and promotes reforms to address chronic problems such as overcrowding.[331] In 2009, the Embassy of Canada awarded Prado its annual Human Rights Prize in recognition of his work.[332]
In 2009, after Prado represented several inmates seeking protection before the Inter-American Court of Human Rights, the court found that he was facing a "grave risk for his life and integrity" due to threats and attacks against his life and that of his family.[333] It ordered the Venezuelan government to provide him with protection.[334] Yet, as of March 2012, the government still had not adopted any measures to protect Prado.[335]
In May 2010, Prado participated in a peaceful demonstration in front of the Supreme Court with families of inmates, protesting long delays in judicial procedures and prison violence. A week later, according to Prado, seven unidentified individuals dressed in black, wearing sunglasses, and riding motorcycles without license plates, appeared at his apartment building when he was not home, and asked a building employee for the "director of prisons."[336] Prado filed a complaint with the Attorney General's Office, but as of March 2012, had received no response.[337]
More recently, in June 2011, Prado publicly criticized the government for its handling of a prison riot and subsequent clashes between inmates and members of the National Guard at El Rodeo prison complex near Caracas, which led to several deaths and injuries on both sides. In one TV interview, for example, Prado blamed the violence on government policies that contributed to overcrowding, poor health conditions, and other factors.[338]
The Chávez administration responded to the criticisms by publicly denouncing Prado. Justice Minister Tarek El Aissami accused him of attempting to "destabilize the prison system,"[339] while Vice President Elías Jaua declared that criticism of the government's handling of the situation by NGOs and opposition leaders was part of a strategy to "politically destabilize the country."[340]
At the time, state controlled media outlets accused Prado of fomenting violence in the prisons, and doing so with the financial backing of the US government. The host of the daily political talk show La Hojillaclaimed that Prado and the Observatory were "preparing an internal war between inmates."[341] Meanwhile, the official paper VEA reported that the US government had funded the involvement of nongovernmental organizations, including the Observatory, in the prison incidents.[342]
Prado told Human Rights Watch that, within days of these denunciations, he began receiving anonymous threats, consisting of telephone calls in which unidentified callers told him to "shut up" if he cared about his children. His wife received an anonymous call in which the caller said Prado "would be the next one to fall."[343] According to the Forum for Life, a consortium of human rights organizations, unidentified individuals published Prado's phone number and home address on a blog, with a note that said, "Family information to come soon…so that the people try him. Capital punishment."[344]
On June 27, Prado left Venezuela to participate in an event organized by Amnesty International in Spain. According to Prado, during the following week, a group of unidentified individuals riding motorcycles went to his house and asked the doorman if he still lived there. On a separate occasion, a group of women dressed in what appeared to be National Guard uniforms asked the doorman if Prado's apartment was available for rent. Prado told Human Rights Watch he interpreted these visits as threats, which prompted him to remain abroad and take his family out of the country.[345]
As he prepared to return to Venezuela on August 27, 2011 he received an anonymous email with a photographic image of what appeared to be an official document from the Attorney General's Office, stating that Prado was under criminal investigation for "treason" and "incitement to commit crimes." Prado was able to enter the country and, a few days later, confronted the prosecutor whose name appeared on the document. The prosecutor said there was no such investigation underway, but could not explain the source of the document he had received via email.[346]
Prado told Human Rights Watch that, since his return to Venezuela, he has continued to be the target of denunciations by the Chávez administration and its supporters, as well as acts of intimidation by strangers. For example, in November 2011, three men wearing red shirts arrived at his home in a white truck of the sort that is usually used by police forces and asked Prado's wife if he was home. Prado, who was in Geneva doing advocacy with the United Nations at the time, interpreted this visit as a threat.[347]
In January 2012, the minister of penitentiary system, Iris Varela, told the official press that "an intelligence report shows contacts of Humberto Prado...with international media, trying to agitate an international campaign."[348] And in March, the Twitter account of La Hojilla accused Prado of planning to destabilize the prison system by kidnapping visitors and displaying posters criticizing Varela.[349]
In February 2012, Human Rights Watch asked the Attorney General's Office for information on the status of criminal investigations into the threats against Prado, but received no response.[350]
Citizen Watch
Rocío San Miguel is the director of Citizen Watch for Security, Defense, and the Armed Forces (Asociación Civil Control Ciudadano para la Seguridad, la Defensa y la Fuerza Armada Nacional), an NGO that since 2005 has monitored transparency within the Venezuelan Armed Forces.[351] San Miguel has taught international humanitarian law at the Central University of Venezuela and has served as an advisor to the International Committee of the Red Cross in Venezuela.[352]
In May 2010, San Miguel gave a television interview on Globovisión in which she presented evidence that 30 military officials, including some high level officers, were members of Chávez's political party, a practice that is prohibited by the Venezuelan constitution.[353]
After the interview, San Miguel was denounced by the hosts of two pro-government shows on state-run television. One of them accused her of "inciting insurrection" and "exposing the military to public scrutiny to undermine their work," while the other accused her of being a "CIA agent" and receiving public funding from abroad.[354]
In January 2011, Ámbito Cívico Militar, the official magazine of the Armed Forces, published an article accusing San Miguel of seeking to foment a coup d'etat in Venezuela.[355] San Miguel asked the head of the Armed Forces, Gen. Henry de Jesús Rangel Silva, for information on which sources had been used to conclude that she was involved in efforts to destabilize the country. He refused to provide the information, stating that it was reserved. San Miguel has filed a claim with the Supreme Court asking it to overturn the decision to deny information, but, as of March 2012, the case remained pending.[356]
In addition to the public allegations against her, San Miguel reports having been subject to multiple acts of intimidation by strangers. In May 2010, the day after her television interview, an unmarked car began to follow her while she was driving with her daughter. She then received repeated threats via Twitter, including one claiming, "I am following you."[357] (San Miguel filed formal complaints before the Attorney General's Office and the Ombudsman Office, which remain pending.)[358]
In 2011, she received death threats on multiple occasions, including two days after she presented a report criticizing the Defense Commission at the National Assembly in December, when an unidentified individual rang the doorbell at her home and said into the intercom, "You will die, bitch!"[359]
In January 2012, the Inter-American Commission on Human Rights ordered the government of Venezuela to protect the lives and physical integrity of San Miguel and her daughter.[360] In March, San Miguel participated in a hearing before a Venezuelan judge to agree on which protective measures the government would grant them. She asked for several measures, including a prompt investigation of the threats she had received, and explicitly told the judge that she did not want to be assigned police protection. Nonetheless, according to San Miguel, the judge rejected all of her requests and instead authorized multiple daily police visits to her home.[361]
In February 2012, Human Rights Watch asked the Attorney General's Office for information on the status of investigations into the threats against San Miguel, but received no response. [362]
Public Space
Carlos Correa is the director of Public Space (Espacio Público), an NGO that monitors the situation of freedom of expression in the country and advocates for greater government transparency and accountability.[363] Correa participates regularly in international fora, including hearings before the IACHR, and publishes critical opinion pieces in local newspapers. Prior to joining Public Space, Correa directed PROVEA, one of the country's leading human rights organizations, and taught in several Venezuelan universities.
In early July 2010, Eva Golinger, a US-trained lawyer and outspoken supporter of President Chávez, published copies of official US documents that describe US funding to Venezuelan NGOs (along with universities, websites, and political parties), including Public Space. These documents include information regarding a US Federal Assistance Award of US$699,996 to the Pan American Development Foundation (PADF) for a two-year project called "Fostering Media Freedom in Venezuela," in which Public Space and another NGO, IPYS, are sub-grantees.[364] According to Golinger, US agencies—including USAID, NED, PADF, and Freedom House—have provided funding to Venezuelan political parties and NGOs "precisely to work against the Revolution."[365]
Several weeks later, Correa stated in an interview on Globovisión that Public Space is an autonomous organization with multiple sources of funding, and that the majority of it comes from non-US sources. [366] (Regarding the specific PADF project mentioned by Golinger, Correa told Human Rights Watch that Public Space received US$183,504 dollars over the course of two years, 30 percent of its total income during that period, and that it used the funds to finance trainings on new technologies for civil society groups, journalists, and students.) [367]
Later the same day, the host of La Hojilla denounced him on state-run television as a "hypocrite" for not stating explicitly that he had received funds from the United States government.[368]
A few days later, the state-run channel began airing spots ridiculing Correa for receiving US funding. One spot consisted of an animated sequence that depicts a cartoon image of Correa leaving the US embassy in a limousine, his suitcase overflowing with US dollar bills.[369] Another spot showed images of the documents used by Golinger and questioned the veracity of Correa's statements in the Globovisión interview.[370] A third spot included both the cartoon and images of the interview.[371]
The spots were aired as many as 20 times a day for approximately four weeks on various channels, according to Correa. [372] In May 2011, they were aired again after the organization published its annual report criticizing restrictions on freedom of expression in Venezuela. [373]
The content of the spots is particularly alarming given the fact (discussed earlier in this chapter) that Public Space is facing criminal complaints for receiving international funding and could potentially face charges of "treason."[374]
Public Space has been unable to obtain any information from the public television station, Venezolana de Televisión (VTV), on whether the television station could provide information on who produced the television spots, how much they cost, and how many times they were aired.[375]
Correa told Human Rights Watch that after the spots were aired, government supporters posted his home address on Twitter and he was subject to repeated harassment and threats by strangers.[376] For example, in several instances while he was walking down the street near his office, unknown individuals accused him of being an "enemy of the president." On one occasion, a person he passed said out loud, "I don't understand why these traitors are not put in jail," and, on another occasion, a passerby told him to "stop messing with [the] president."[377]
In December 2010, Correa participated in a demonstration with other human rights defenders in front of the National Assembly against several legislative proposals that they considered would undermine free expression. When they were arriving at the Assembly to deliver a letter to legislators, a government supporter shouted at them, "This is red territory, this is Chavista territory!" While they were giving a copy of the letter to a legislator, a truck drove by at low speed and an unidentified individual hurled a plastic cone at Correa, striking him in the face and producing a contusion on his forehead that required medical attention. After the incident, a civilian who had been standing nearby told Correa, "I will kill you."[378] Correa filed a formal complaint before prosecutors regarding this incident, which, as of March 2012, remained pending.[379]
In February 2012, Human Rights Watch asked the Attorney General's Office for information on the status of criminal investigations into the physical assault and threats against Correa, but received no response.[380]
The nongovernmental organization COFAVIC (Comité de Familiares de las Víctimas de los sucesos ocurridos entre el 27 de febrero y los primeros días de marzo de 1989) was created by victims and family members of victims of El Caracazo—a violent crackdown on street protestors in Caracas in February 1989 that led to hundreds of deaths—to promote accountability for these crimes.[381] Since its creation, the organization has repeatedly denounced the lack of accountability for the crimes committed during El Caracazo.
In February 2011, days before the anniversary of El Caracazo, COFAVIC issued a press release questioning the ongoing lack of progress in investigations of the killings, expressing concern that bodies of victims exhumed in September 2009 would be re-buried without having been identified, and criticizing the Attorney General's Office for refusing to allow independent experts to participate in the exhumations.[382]
The Attorney General's Office responded to COFAVIC's statement the same day by accusing the organization of failing to cooperate with its investigations. Attorney General Luisa Ortega Díaz claimed that COFAVIC had failed to provide her office with information on exhumations carried out in the 1990s. Alejandro Castillo, a senior official at the Attorney General's Office, claimed that COFAVIC had "not provided any support" to the investigations.[383] (The national human rights ombudsperson, Gabriela Ramírez, also publicly denounced COFAVIC, calling it a "nongovernmental organization that recently became opposition.")[384]
The allegations by the Attorney General's Office are particularly problematic because, under Venezuelan law, failing to cooperate with ongoing investigations could constitute obstruction of justice, which is a criminal offense subject to a prison sentence of up to three years.[385] Indeed, in an opinion piece published in 2009 on the subject of obstruction of justice, the attorney general stressed that her office is committed to "sanction[ing] any act that attempts to undermine" its work.[386]
COFAVIC representatives insist that the allegations are entirely false, and they provided Human Rights Watch with documentation showing that, in fact, over two decades, the organization had repeatedly provided prosecutors with the information it had on cases from El Caracazo.[387]
The UN special rapporteur on the situation of human rights defenders has also expressed concern that the allegations by the Attorney General's Office could "be part of a defamation campaign to discredit the legitimate activities of COFAVIC."[388]
PROVEA, one of the oldest and most influential human rights organizations in the country, has monitored the human rights situation in Venezuela since 1988, with specific focus on economic, social, and cultural rights. It produces detailed reports on rights issues and provides legal assistance to victims.[389]
In recent years, Chávez officials and supporters have repeatedly responded to the release of PROVEA's annual report—which provides a comprehensive overview of human rights practices in Venezuela—by aggressively denouncing the organization and threatening to open investigations against it for receiving international funding.
In 2008, for example, Justice Minister Tarek El-Aissami stated that PROVEA's annual report was "ridiculous" and said the organization deserves to have "shoes thrown at them for being liars."[390] More recently, in December 2010, Iris Varela, a legislator from Chávez's political party, accused Provea of receiving funding from the United States government "to undermine national sovereignty."[391]
These charges were echoed in May 2011 by Miguel Ángel Pérez, the host of a prominent political program on state-run television, who accused PROVEA of having carried out "strong political actions against the government" and receiving "illegal" funding from the US government.[392] Pérez called on authorities to apply the Sovereignty Law, which establishes heavy penalties for NGOs that receive international funding while defending "political rights."
Human Rights Defenders Outside of Caracas
The threat of violence appears to have been more acute for human rights defenders operating outside of Caracas. Human Rights Watch has interviewed defenders who work outside the capital and have been targeted for violence and intimidation. To document these cases, we have also relied on findings by international human rights bodies and written information provided by local organizations on these cases.
One case involves members of the Barrios family in the state of Aragua, in which seven family members were killed between 1998 and 2011, and several others suffered reprisals after they actively sought justice for these crimes.[393] (Based on international standards, any individual who in any way promotes the respect of basic rights should be considered a human rights defender.)[394]
In 2004, after two men from the Barrios family were killed by Aragua state police officers and other family members were arbitrarily detained, beaten, and received death threats, the Inter-American Court of Human Rights ordered Venezuela to protect 10 members of the Barrios family.[395] The following year, the court extended the request to protect 19 additional family members.[396]
In November 2011, the Inter-American Court ruled that Venezuela had failed to implement the protective measures for Barrios family members and was responsible for all seven deaths. In two cases, which occurred before the measures were issued, there was evidence that state police killed the victims, and in the others, the court ruled that the government had failed to provide the victims with adequate protection to prevent their deaths. [397]
The Inter-American Court also found that Venezuelan authorities had failed to take basic steps to carry out adequate investigations, and no one had been held accountable for any of the abuses suffered by the Barrios family.[398]
Another example is the case of the Committee of Victims against Impunity in the State of Lara (Comité de Víctimas contra la Impunidad – Lara, COVICIL), another organization that promotes police accountability at the local level.[399] On November 26, 2009, two unknown individuals arrived at the home of Mijail Martínez, a member of the committee who was preparing a documentary on impunity in the state, asked for his father, and shot at Mijail several times, killing him instantly.[400] Mijail's father, Víctor Martínez—who founded COVICIL and is a former local legislator and member of Chávez's political party—had for years hosted a TV show in which he denounced local police authorities for their alleged involvement in corruption cases and human rights violations. Víctor had repeatedly received death threats.[401]
After Mijail's death, Víctor—who headed an outspoken campaign to seek justice for his son's killing—continued to receive threats and attacks from unknown individuals.[402] For example, the organization reported that on July 3, 2010, an unknown individual assaulted Víctor on the street while he was distributing fliers about the death of his son, threw him to the ground, kicked him in the stomach, and told him he could not distribute the fliers.[403] On January 23, 2012, an unknown individual threatened him with a firearm as Victor was entering his home. His attacker escaped in a black truck after Víctor ran into the street yelling. According to Víctor, neighbors had reported seeing a pick-up truck and a car without license plates patrolling the neighborhood on several occasions before he was attacked.[404] As of March 2012, no one had been convicted for Mijail's killing.[405]
A number of other human rights defenders and organizations with whom Human Rights Watch spoke also recounted incidents illustrating the hostile and intimidating environment in which they have to conduct their work.
For example, Human Rights Watch received such accounts from the Committee in Favor of the Defense of Human Rights of Family Members of Victims in the State of Falcón (Comité Pro Defensa de los Derechos Humanos de Familiares y Víctimas del Estado Falcón, COPRODEH), an organization created in 2006 by family members of victims of police abuse seeking justice for human rights violations suffered by their loved ones. In 2011, members of COPRODEH were threatened after a local mayor was subject to criminal charges in one of the cases documented by the organization.[406] Jean Carlos Guerrero, COPRODEH's director, told Human Rights Watch that soon after prosecutors brought charges, a law school friend who worked for the investigative police told him that "they wanted to get him out of the way" and were planning to "scare him."[407] According to Guerrero, on August 17, he was walking down the street with Ana Hernández, the organization's president, when unknown individuals drove by and shouted at them "Damn [you], you will appear with flies in your mouths."[408] When Guerrero went to the prosecutor's office to file a complaint, he was told he should "stop appearing in the press."[409] As of March 2012, according to COFAVIC, an investigation by prosecutors into these incidents remained pending.[410]
Another example of the hostile environment in which human rights defenders in the interior of the country operate involves threats against Oscar Pineda and his son, Oscar Mafred Pineda, who are active members of the Movement for Peace and Life (Movimiento de Paz y Vida), a nongovernmental organization that documents alleged extrajudicial executions and "disappearances" in the state of Barinas.[411]
Oscar Pineda told Human Rights Watch that in July 2009, while he was being interviewed about kidnappings in Barinas for a Globovisión TV show, he got a text message from an unfamiliar number that said: "Rat, tomorrow you won't be talking." [412] In November 2010, a man and a woman pretending to be patients came to the office of his son, Oscar Manfred, a medical doctor, and told him that he should be careful and should "urge his father to stop denouncing" the kidnappings. [413] Oscar Pineda also told Human Rights Watch that after the newspaper El Nacional published a long article on the work of Movement for Peace and Life in August 2011, individuals called a radio show in which he was participating to tell him he was "despicable" and that "[he had] to leave." [414] Following each threat, Pineda filed complaints with the prosecutor's office. However, according to a representative of COFAVIC, who works closely with local defenders, as of March 2012, the Attorney General's Office had provided no information on any progress in the investigations. [415]
Limiting Public Access to Information
A Decade Under Chávez documented how government officials had routinely failed to implement constitutional norms guaranteeing access to official information.[416] Since the report was released, the Chávez administration has enacted rules that grant government officials sweeping powers to withhold information from civil society organizations and the general public.
In June 2010, President Chávez created a Center for Situational Studies of the Nation (Centro de Estudios Situacionales de la Nación, CESNA). The decree creating the center says that CESNA's function is to "gather, process and analyze permanently" information from different sources, including information "from society on any issue of national interest," and gives its president authority to declare that any "information, facts or circumstance[s]" the center learns about in the context of its work are "reserved, classified, or of limited distribution."[417] The decree's language is so broad it could effectively empower the government to block civil society groups and the private media from disseminating non-official information that they themselves have gathered.
Then, in December 2010, the Chávez administration enacted rules requiring that all government offices treat as confidential "any information related to personnel, clients, financial, technical or administrative issues, and any other sensitive information that if known and made public to unauthorized people may cause harm to the institution." The rules also grant officials authority to arbitrarily treat as confidential "any other information."[418]
Since these norms were adopted, government officials have repeatedly denied or failed to respond to requests for official information presented by NGOs. Based on an analysis of 61 information requests presented to several government offices between August and October 2011, NGOs documented that individuals had been unable to obtain information in 85.2 percent of the cases (Venezuelan authorities failed to respond to 83.6 percent of requests and rejected 1.6 percent).[419] In 2010 that figure was 67 percent and in 2008 it was 71 percent.[420]
Examples of requests that were never answered include:[421]
- Whether the public television station, Venezolana de Televisión (VTV), could provide information on who produced the television spots (described above) criticizing the NGO Public Space for receiving international funds, how much the spots cost, and how many times they were aired;[422]
- Whether the Ministry of Health had implemented recommendations by the Comptroller General's Office to address irregularities in the storage and distribution of medicines; [423]
- Whether the government had a plan to prevent gender violence and what had been the main results obtained by government programs to reduce violence against women;[424]
- Whether the minister of the penitentiary system could provide the names of inmates who fled the El Rodeo prisons during the disturbances in June 2011, as well as the names of those who had been injured;[425]
- Whether the investigative police (Cuerpo de Investigaciones Científicas, Penales y Criminales, CICPC) could provide information on the number of homicides recorded in Venezuela in the first half of 2011;[426]
- Whether the National Commission for Refugees (Comisión Nacional para los Refugiados, CNR) could provide information on how many requests for refugee status were received in 2011, how many were rejected and why, and how many men, women, and children were registered as refugees in the country;[427]
- Whether the president's office could provide information on the number of real estate properties that had been expropriated by the government, on whether the government had provided adequate compensation in such cases, and on when outstanding compensation payments would be made;[428] and
- Whether the Ministry of Education could provide information on how many schools were built in the country in 2010 and in the first half of 2011, how much they cost, where were they located, and when they opened.[429]
The difficulty in obtaining information has been further compounded by recent Supreme Court rulings that have upheld the government's power to limit public access to official information. In two of the cases mentioned above, the Supreme Court rejected claims filed by NGOs asking the court to uphold the right of access to official information.[430]
Moreover, as described in the first chapter of this report, the court ruled that any individual who requests official information from government offices must explicitly state the reasons and purposes for which it is requesting such information.[431] Citing this ruling, in September 2011, CONATEL rejected an NGO's request to obtain a list of administrative procedures that had been opened under the Broadcasting Law, and a list of broadcasting licenses granted in 2010 and 2011.[432]
Impact on Human Rights Advocacy
Leading Venezuelan human rights defenders told Human Rights Watch that they are increasingly fearful that they may be physically attacked or targeted for prosecutorial harassment or other reprisals for doing their work. While they continue to criticize the government for its human rights policies, they have felt compelled to take precautions and make significant changes in the way they carry out their work.[433]
In May 2010, a group of organizations adopted a "security protocol" to protect individuals and information in the event that defenders are threatened, harassed, followed, subject to criminal prosecution, arbitrarily detained, kidnapped, or killed. Human rights defenders have also set up security cameras in their offices; modified their electronic filing methods; only carry out discussions on sensitive issues in face-to-face meetings, or via Skype or blackberry chat; and constantly change email passwords.
Human rights defenders have adjusted the way they operate in ways that limit their public visibility and could undermine their ability to promote and protect fundamental rights. A few concrete examples include the following:
- A leading human rights defender told Human Rights Watch that he had drastically scaled back the number of TV appearances in which he discusses human rights in Venezuela (from approximately five to one interview per month) to decrease his visibility.
- An NGO that organizes capacity-building seminars for local groups in the interior of the country—on how to document abuses and on the role of national and international mechanisms in protecting fundamental rights—told us they no longer publicize these meetings in advance. They work with a local counterpart organization that only invites individuals it knows and trusts to the meetings. This limits the NGO's ability to reach a wider audience and document more cases.
- In 2011, a leading NGO invited international human rights experts to a workshop on human rights issues in Venezuela. While in previous years they had organized several media interviews for the foreigners during the visit, this time they canceled all media work while the foreigners were in town for fear that the government would expel the foreigners and sanction the organization. Instead, they only taped one interview, which was aired after the foreigners left the country.
- Since 2009, NGOs requesting hearings before the IACHR on the situation of human rights defenders in Venezuela have asked the commission to organize private hearings, instead of public ones, foregoing wider visibility for their claims. Some defenders told Human Rights Watch that they fear that the publicity of these hearings in Washington, D.C. gives them greater exposure in Venezuela, which they want to avoid.
- In 2010, an NGO stopped organizing press conferences and granting individual interviews to journalists when releasing their public reports. Instead, it organizes academic presentations with civil society allies and only sends copies of the report to journalists.
- Only three of approximately 100 organizations working on environmental issues in Venezuela presented submissions before the UN Human Rights Council prior to Venezuela's first Universal Periodic Review (UPR) in 2011. According to the director of one of the organizations that did submit a report, other organizations had decided not to do so when they learned that the UPR reports would be public, fearing possible reprisals. "[T]hey had enough problems already and, being small organizations, they wouldn't survive a confrontation or reprisals," she said.[434]
Human rights NGOs have also faced obstacles when seeking to have documents notarized, making it harder to register new organizations and submit written documents to international human rights bodies. For example, representatives from COFAVIC told Human Rights Watch that more than 10 notaries had refused to notarize documents they needed to send to the Inter-American Court of Human Rights.[435]
Similarly, a notary in Caracas told representatives of CIVILIS, an NGO that seeks to raise international awareness of the human rights situation in Venezuela, that they would not be able to register the organization because it should not use terms such as "democratic" and "political" in their proposed statutes.[436] The notary only certified the organization's statute after its representatives presented a new version incorporating changes that had been proposed by a representative from the notary office.[437]
In another case, a human rights defender who tried to register the Forum for Life (Foro por la Vida), a consortium of human rights organizations in Venezuela, was told that the notary office would not be able to authenticate the document because it was related to human rights. As of March 2012, the organizations were preparing to resubmit the document to the notary for authentication.[438]
Finally, the constant threat that international funding could lead to criminal prosecution, discussed above, is having a negative impact on Venezuelan organizations. When asked about the impact of the Sovereignty Law, two senior European diplomats told Human Rights Watch that the prevailing opinion within the international community is that supporting local human rights NGOs is now more difficult.[439]
Although many organizations have continued to receive international funding, the uncertainty has already had an impact on their ability or willingness to obtain foreign funds. For example, the director of a leading NGO told Human Rights Watch that an overseas foundation that had supported their work since 2002 stopped doing so in 2011. The director stated that representatives from the foundation had informed him that "due to the[ir] visibility and the possible implications of the law's content, they had decided to no longer financially support the organization."[440]
In February 2011, Citizen Watch returned 23,400 bolívares (approximately US$5,400) that the Canadian government had granted them to organize capacity-building seminars for journalists throughout the country. In a press release, Citizen Watch stated that its members feared that, under the Sovereignty Law, they could criminally prosecute them for treason.[441]
Venezuela's Obligations Under International Law
Judicial Independence
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. [442] The United Nations Human Rights Committee, which monitors the implementation of the ICCPR by states party, has ruled that for a tribunal to be "independent and impartial," [443] the executive must not be able to control or direct the judiciary, [444] 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." [445]
A series of authoritative international documents set forth criteria to determine whether a justice system is in fact independent and impartial:
- Judges should be free from constraints, pressures, or orders imposed by the other branches of government. According to the UN Basic Principles on the Independence of the Judiciary (UN Basic Principles), "[i]t is the duty of all governmental and other institutions to respect and observe the independence of the judiciary," and 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." [446]
- Proper training and qualifications should be the basis of the appointments of judges. The Universal Charter of the Judge points out that, "[t]he selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification."[447] The UN Basic Principles, similarly, state that "[a]ny method of judicial selection shall safeguard against judicial appointments for improper motives."[448]
- Judges should have security of tenure to avoid fear of being removed from their posts for the decisions they adopt. The UN Basic Principles state that "[t]he 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" and that "[j]udges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists."[449]
Judges may only be suspended or removed from their jobs "for reasons of incapacity or behaviour that renders them unfit to discharge their duties" and they have the right to a fair hearing.[450] According to the Statute of the Ibero-American Judge, "the disciplinary responsibility of judges will be determined by the judicial bodies established by law, through processes that guarantee the respect of due process and, in particular, the right to a hearing, to defense, to contest [evidence], and to applicable legal recourses."[451]
Freedom of Expression
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. [452] This right gives rise to state obligations related to censorship, access to information, and the regulation of broadcast media.
Prior Censorship
Under international law, any restriction—direct or indirect—on the right to freedom of expression must be prescribed by law, proportionate to a legitimate objective, and non-discriminatory.[453] If a measure that censors information fails to meet these standards, it constitutes an unreasonable restriction on the right to free speech.
Additionally, article 13 of the American Convention explicitly prohibits prior censorship. The Declaration of Principles on Freedom of Expression, adopted by the Inter-American Commission on Human Rights (IACHR) in 2000, explicitly prohibits "[p]rior conditioning of expressions, such as truthfulness, timeliness or impartiality," and states that "[p]rior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law." The principles also state that "restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression."[454]
Regulating Media Content
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 full and free public debate, governments may only impose restrictions on grounds of incitement where there is a direct relation between the speech in question and a specific criminal act.
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 International Criminal Tribunal for Rwanda, for example, ruled that the "direct" element of incitement implies that the incitement "assume[s] a direct form and specifically provoke[s] 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."[455]
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."[456]
Controlling the Airwaves
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.[457]
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.[458]
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."[459] 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."[460]
To safeguard against bias, political favoritism, and corruption, the procedures for granting or refusing broadcasting licenses should be open, impartial, and transparent. According to the IACHR,
[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.[461]
Access to Information
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 stated that the right of access to official information is a fundamental right of every individual.[462] In the Americas, the Inter-American Court on Human Rights has ruled that article 13 of the American Convention on Human Rights (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.[463] Moreover, it is internationally recognized that this right is crucial to ensure democratic control of public entities and to promote accountability within the government.[464]
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.[465] 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.[466]
A Model Law on Access to Information, approved by the OAS General Assembly in June 2010, states that the right of access to information is a fundamental human right and an essential condition for all democratic societies, and that "measures should be adopted to promote, implement and ensure the right of access to information in the Americas."[467]
Community Media
The United Nations has recognized the role of community media in fostering sustainable development objectives for more than a decade.[468] International bodies like UNESCO and the IACHR 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 recognized their role in expanding the scope of free expression in societies with significant levels of poverty.[469]
Protection of Human Rights Defenders
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." [470]
In its first 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." [471]
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."[472]
Among government actions that limit or hinder the work of human rights defenders are spurious criminal proceedings or legal action taken or threatened against them on unfounded charges, or intimidating accusations leveled at them by government officials. The IACHR 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…. [J]udicial 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.[473]
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 recognized 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. [474]
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 endangering 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.[475]
Similarly, the IACHR's view is that civil society organizations may legitimately receive money from foreign or international NGOs, or foreign governments, to promote human rights.[476]
Human Rights Watch urges the Chávez government to remove obstacles to judicial independence, freedom of expression, and the independence of civil society organizations. Many of our recommendations, detailed below, were included in A Decade Under Chávez, our previous report on the country. None have yet been adopted by the Chávez administration or by his supporters in other branches of government.
If Venezuela is to fulfill the promise of the 1999 constitution, it should amend or repeal policies, laws, and practices that undermine its citizens' basic rights.
Regarding Judicial Independence
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. Given the circumstances, Human Rights Watch recommends as an extraordinary measure that the current National Assembly implement a one-time ratification process to legitimize the composition of the Supreme Court, for example, by requiring a two-thirds majority affirmative vote for each justice whose appointment occurred after the passage of the 2004 Supreme Court law. Measures should 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 the broadest possible political consensus.
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 delay would result in irreparable harm;
- Ensure that justices who face clear conflicts of interests in particular cases recuse themselves from adjudication of those cases to ensure that all decisions are adopted impartially and are seen to be adopted impartially;
- Recognize the jurisdiction and binding rulings of the Inter-American Court of Human Rights; and
- End the practice by the Judicial Commission of appointing judges who lack security of tenure and then removing them at will, and instead adopt mechanisms to ensure that all judges are appointed to positions with security of tenure through open and public competitions as required by the Bolivarian constitution.
More immediately, the 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.
The Attorney General's Office should:
- Investigate, and hold to account, public officials who may have abused their authority in violation of Article 67 of the Law Against Corruption, or similar provisions, by improperly using the criminal justice system against perceived political opponents as documented in this report; and
- Drop all charges against Judge María Lourdes Afiuni and seek her immediate release from house arrest; and investigate, and hold to account, public officials who may have abused their authority in violation of Article 67 of the Law Against Corruption, or similar provisions, by improperly procuring her arrest, prosecution, and prolonged detention.
Regarding Freedom of Expression
Venezuelan authorities should amend or repeal laws that grant government officials undue power to censor and punish critics, and refrain from pursuing policies and practices that undermine freedom of expression, including those that generate undue pressure for self-censorship among journalists and broadcasters.
The National Assembly should repeal all legal provisions that contravene international law and norms on freedom of expression. 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;
- Amend the language of article 29(1) of the Broadcasting 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; and
- Amend the language of article 27 of the Broadcasting Law to ensure that existing restrictions on free speech are not applicable to the internet.
The government should ensure that broadcasting laws are enforced impartially and with full respect for due process guarantees. Specifically, it should:
- Ensure that investigation and sanctioning of alleged infractions of broadcast laws is 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 government transparency, the government should:
- Introduce legislation to implement effectively and without discrimination the constitutional right of public access to information held by public entities;
- Respond in a timely manner to information requests presented by journalists, human rights defenders, and members of the general public;
- Provide public information on the role and activities of the Center for Situational Studies of the Nation, ensuring that they comply with international standards on access to information; and
- Revoke administrative provisions expanding the definition of what constitutes confidential or reserved information.
To ensure the impartiality of decisions to grant, renew, and revoke broadcasting licenses, the government should:
- Give applicants for concessions and frequencies equal opportunities to present their cases through a fair process that adheres to basic due process, including by introducing safeguards against political interference.
In addition, the government should:
- Restrict the obligation on private media to broadcast official statements, including presidential speeches, to occasions which conform with international legal standards, i.e. the broadcast should have a legitimate purpose for the public good, and the content, scope and length of the broadcast should be necessary and proportionate to achieve the public good .
Regarding Human Rights Defenders
The Venezuelan government should abandon its aggressively adversarial posture toward human rights defenders and civil society organizations.
Specifically, the president and high-level 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; and
- Engage constructively with human rights defenders in seeking solutions to address Venezuela's human rights problems.
The National Assembly should:
- Repeal the Law for the Defense of Political Sovereignty and National Self Determination; and
- Amend article 4 of the Organic Law on Social Control to clarify that obligatory adherence to "socialist principles" does not apply to human rights defenders or civil society organizations that work to protect and promote human rights in the country.
In addition, the Attorney General's Office should:
- Only open investigations in which it independently considers that suspects have committed a crime, without undue interference of other branches of government;
- Conclude outstanding criminal investigations against human rights defenders and civil society representatives in an impartial, objective and timely manner;
- Refrain from filing unsubstantiated or unwarranted charges against human rights defenders and civil society leaders; and
- Conduct thorough, prompt, and impartial investigations after human rights defenders report attacks, threats, or harassment they have suffered.
Regarding the Inter-American Human Rights System
All branches of government in Venezuela should actively collaborate with international human rights monitoring bodies to ensure Venezuelans can have access to alternative mechanisms to redress abuses when local remedies are ineffective or unavailable.
Specifically, Venezuelan authorities should:
- Recognize the jurisdiction of the Inter-American Court of Human Rights, and adopt all necessary measures to comply with and implement its rulings;
- Allow the Inter-American Commission on Human Rights to conduct in-country research in Venezuela; and
- End its international campaign to undermine the independence, autonomy, and powers of the Inter-American Commission and Court of Human Rights.
This report was researched and written by Human Rights Watch research staff. It was edited by Daniel Wilkinson, deputy Americas director at Human Rights Watch; Joe Saunders, deputy program director; Aisling Reidy, senior legal advisor; and José Miguel Vivanco, Americas director. Americas Division associates Guillermo Farías, Laura Graham, Mariana Dambolena, and Sylvie Stein contributed to research logistics, production, and editing. Americas Division interns Julia Fernández Cruz, Magali Ferreyra, Rodrigo Gallego, Helen Morgan, Dara MacDonald, Luciana Morón, Ashley Morse, Sara Rafsky, Gladisley Sánchez, and Karla Torres, as well as Princeton-in-Latin-America Fellows Mario Moreno and Lucy McDonald, provided valuable research support.
Human Rights Watch would like to thank the numerous Venezuelan human rights advocates, lawyers, journalists, academics, and others who spoke with us, agreed to be interviewed about their experiences, or otherwise provided factual information essential to the production of this report.