Venezuela: Justice under threat

Transcription

1 Venezuela: Justice under threat June 2007 Report of a mission to Venezuela by the International Bar Association Human Rights Institute with the support of Foundation Open Society Institute

2 Executive Summary This is a summary of a report following a fact-finding mission by the Human Rights Institute of the International Bar Association (IBA) to the Bolivarian Republic of Venezuela between March During the mission, the delegation of high-level jurists carried out consultations with magistrates and members of the judiciary, lawyers, law societies and bar associations, academics from different law faculties and representatives of non-governmental organisations, among others. The IBA would like to take this opportunity to thank those who gave their time to meet the delegation for their hospitality and assistance. The mission was organised by the Human Rights Institute (HRI) of the IBA and was generously funded by the Foundation Open Society Institute (FOSI). The purpose of the IBA mission to Venezuela was: to analyse the legal situation in Venezuela, specifically the independence of the legal system and that of the legal profession in carrying out its duties; to examine any obstacle, de facto and de jure, that limits or compromises the administration of justice; to assess the existence of legal safeguards for the efficient functioning of the legal system and to analyse whether these safeguards are respected in practice; and to draw up necessary recommendations with respect to all of the above. The IBA mission was concerned to hear of reports indicating threats to the independence of the judiciary and therefore decided to visit the country. The IBA mission discovered, with concern, that the conditions of the administration of justice and of human rights in Venezuela show serious signs of having deteriorated over the last four years. Here follows a summary of the conclusions and recommendations from the report. The IBA considers that action must be taken on these issues in order to develop an impartial judicial system and increase access to justice. These steps are integral to the protection of the human rights of all Venezuelan citizens. Summary of conclusions Advances in the justice system The IBA takes this opportunity to acknowledge some important advances made by the Venezuelan State in the field of the administration of justice. Areas in which progress has been made include: the modernisation of the infrastructure of the judicial system, the establishment and implementation of the different industrial tribunals, the improvement of some aspects of the working conditions of judges, the activities of itinerant judges and the recent measures taken to support the empowerment of women. However, it is considered that these advances are not addressing the systemic problems facing the justice system in Venezuela. The IBA concludes that the steps taken thus far fail to address in an effective manner the development

3 of the objectives and functions of the judiciary in Venezuela, or a culture of respect for the justice system. The three sections of the courts most vulnerable to such interference and erosion are those with jurisdiction over constitutional, contentious-administrative and criminal justice matters, which all potentially assume authoritative control over issues of political interest. Access to justice Venezuelan citizens still live in a climate of impunity, and are excluded from the justice system. This lack of access to justice reinforces mistrust in the judicial system and has resulted in the use of extrajudicial mechanisms to administer justice and increased lawlessness. This has become a vicious circle impunity weakens the Venezuelan rule of law, erodes faith in the system and engenders further violence. Impunity creates low expectations towards the administration of justice on the part of the Venezuelan people. This is compounded by legal uncertainty and confusion around the applicable juridical framework; delays in proceedings; non-compliance with the guarantees of due process; and the partiality of judges and prosecutors which, in turn, generate a low quality of justice. Interference in the judiciary The direct interference and public pressure that judicial officers have been subject to on the part of members of other branches of the State including the President of the Republic who has a significant level of influence on the Venezuelan people undermines the rule of law, the division of powers and, in particular, judicial independence and the defence of human rights. The credibility of the justice system is being damaged by factors such as public statements made by different political figures in the media attacking and criticising justice officials as a result of their decisions. Further, the call for contempt of their decisions or their dismissal by different means, often without the appropriate legal procedures, is seriously eroding the already damaged credibility of the justice system. Such factors are deepening the political and social polarisation of the country. Separation of powers The IBA believes that the separation of powers, which is essential to the rule of law, is being eroded in Venezuela. The Executive is, to a large extent, controlling the National Assembly (AN) as all its members are also members of the ruling party. In addition, as the AN controls the appointment and removal of judges, serious doubts are raised about the existence of a system of checks and balances among the different branches of the judiciary. The IBA has learnt with concern that almost eight years after the promulgation of the Constitution of the Bolivarian Republic of Venezuela, the country continues to be regulated by a transitory legislative system. This creates a form of legal uncertainty which permeates the entire regulatory machinery and which attacks the foundations of the rule of law, particularly those of the judicial system.

4 The lack of comprehensive regulation and delays in passing legislation relating to the administration of justice is generating great uncertainty and is seriously affecting the effective functioning of the justice system. The relationship between Venezuela and the UN and OAS human rights monitoring bodies The relationship between Venezuela and international human rights bodies, in particular those that comprise the Inter-American System, has deteriorated and is not showing any immediate signs of improvement. Polarisation and the new political, economic and social guidelines of the country appear to have resulted in contempt for the measures, recommendations and decisions issued by the inter-american system of human rights protection. This has resulted in a setback in Venezuela s ability to comply with international obligations to promote and protect human rights. This has had a particularly detrimental effect on human rights defenders who are already vulnerable and are even more exposed when they find the protections guaranteed to them under the Inter-American system are not upheld. Venezuelan human rights defenders and non-governmental organisations Human rights defenders in Venezuela and their corresponding organisations are vital for the monitoring, protection and fulfilment of the constitutional guarantees to all Venezuelan citizens. These organisations are paramount to the safeguarding of the rule of law and the observance of human rights in Venezuela, and should be strengthened and supported in order to develop further. In spite of the crucial role played by human rights defenders in a democratic system, the IBA found that the high levels of political polarisation and tension increase the likelihood of human rights defenders to be subject to attacks because of the work they carry out. Threats, intimidation and assault suffered by human rights defenders are compounded by the recent spate of investigations and cases being brought against them under such allegations of civil rebellion, treason against the nation and other alleged crimes. Further, public statements made by members of State institutions which discredit and disparage human rights defenders also undermine their work. In the same way, the restrictive interpretation of the term civil society, which has emanated from recent court rulings in Venezuela is of concern if it is applied to the detriment of human rights defenders and non-governmental organisations. The prison system The situation of people deprived of their freedom in Venezuela is a matter which must be made an urgent priority by the Venezuelan authorities. Lengthy pre-trial detention and general delays in hearings, coupled with the high levels of violence being experienced in prisons and the inhuman conditions which prisoners currently suffer mean that this should be made an issue of the utmost importance for the government.

5 Freedom of expression The IBA concludes that, although the possibility exists in Venezuela for the media to criticise government policies, freedom of speech is under serious threat. The political polarisation in the country is leading a grave absence of security and of the necessary guarantees to ensure journalists can work freely without fear or intimidation. The polarisation that exists in Venezuelan society is also giving rise to institutional and non-institutional public declarations and actions which endanger the right to freedom of speech and the right to personal integrity of journalists, as well as the passing of regulation which contravenes international jurisprudence, doctrine and recommendations on freedom of expression. Summary of recommendations The IBA recommends that Venezuelan State officials refrain from making statements or committing acts which discredit human rights defenders and their work, and which foster negative stereotypes of them in the media. The IBA invites these officials to make pronouncements in favour of human rights defenders, highlighting the importance of their work, respect for their role in Venezuelan society and recognising their contribution to the enhancement of the democratic system. It also encourages them to act as a strengthening mechanism within Venezuelan society, in order to reaffirm the essential nature of these people s work in terms of the democratic system. The IBA calls on the Venezuelan State institutions to desist from taking measures and seeking judgments against the media and its employees because of their position with regard to the current government. The IBA also calls for the Venezuelan State to enact measures protecting the lives and personal integrity of journalists, and to carry out the relevant investigations into threats and other actions necessary in order to fulfil the orders made by the Inter-American System. The delegation urges all branches of the State Authority to refrain from making any statement or carrying out actions which may compromise the ability of the Venezuelan courts and judges to work impartially and independently in international treaties and the Venezuelan Constitution. The independent functioning of the judiciary is fundamental to the promotion of human rights and upholding the rule of law. The IBA concludes that the construction and implementation of an intensive justice programme is essential to stability, development, peace and democracy in Venezuela. Such a programme of reform for the justice system should comprise policies aimed at including all members of Venezuelan society. The programme should seek to introduce key changes, with the view to building an impartial and independent justice system which cooperates appropriately with State institutions, and also acts as an effective check and balance as is the norm in a democratic system. The IBA suggests that this programme should address the following issues: the provision of high quality legal education for members of the justice system, both in universities and in the Judicial College;

6 high-quality continuing legal education for judges and lawyers, including awareness of the importance and value of their mission and role and professional ethics; an awareness-raising programme devised to enhance understanding of those working for State institutions and politicians regarding the role of an independent and impartial justice system as a fundamental pillar of the democratic system, and its valuable role in safeguarding the social and political development in Venezuela; and an education system for citizens which enhances the knowledge and understanding of citizenship, legal rights and the relevant legal mechanisms which Venezuelan citizens can turn to for protection and redress. The implementation of such a system would encourage the population to raise their expectations with regard to the justice system, which would contribute to improvements and reduce the levels of State abuse of the justice system. Delay in the approval of fundamental rules governing the operation of the justice system seriously undermines the development and functioning of the legal profession, and violates constitutional rights and guarantees. The IBA urges the AN to promulgate rules as a matter of urgency, ensuring that the rules are in line with constitutional requirements, the international treaties to which Venezuela is party and the standard set by the United Nations Basic Principles on the Independence of the Judiciary. The IBA acknowledges that the Constitution was constructed at a critical time in Venezuela s history, and thus upholds the equal distribution of authority between the different bodies of the State. The IBA calls upon all governmental and non-governmental institutions and all Venezuelan citizens to come together in support of this Constitution and to push for progress in the delivery and implementation of the rights it enshrines. The IBA calls upon the Venezuelan State to push towards respect for international law, human rights and the institutions that represent them. This comes at a time when the State is disposing of a great number of human rights treaties which it has voluntarily ratified, including its own Magna Carta. The IBA urges the different Venezuelan institutions to reconsider their negative position with regard to the bodies which make up the Inter-American System, and change to an approach of positive engagement. Further, the Venezuelan State should make efforts to comply with all the precautionary and provisional measures and the decisions and rulings that the Inter- American Commission of Human Rights (IACHR) and the Inter-American Court of Human Rights (IACourtHR) have delivered. Furthermore, the IBA requests that the Venezuelan Government take the appropriate measures necessary to guarantee the work of human rights defenders and protect their lives and personal integrity. Such measures may include increasing the capacity of the security forces with regard to the protection of human rights defenders and taking other necessary steps as required in order to comply with the rulings decreed by the IACHR and the IACourtHR.

7 The IBA concludes that the State must make greater efforts to fulfil its obligations to protect the rights of people in custody in Venezuela. Some of the violations of prisoners and other individuals in detention which were brought to the attention of the IBA delegation, were violations of the right to life, personal integrity, due process, the right to health, the right to family and the right to work. State institutions must implement all means necessary in order to speed up trials, to make a full and comprehensive assessment of prisoners and how they have been categorised, to control the use of force by agents of the State responsible for the custody of the prisoners and those who maintain discipline within prisons. Likewise, the IBA calls upon the Venezuelan State to observe the provisional measures issued by the IACourtHR and to allow external monitoring. Finally, the IBA recommends that Venezuela reviews without delay the legislation in force on the freedom of speech in order to ensure it complies with the international standards on the same. For the full list of conclusions and recommendations of the IBA delegation, and a comprehensive overview of the justice system in Venezuela, see the complete IBA mission report at : justicia_(venezuela_ report)_final-spanish.pdf