CHAPTER IV- CONTINUATION

VENEZUELA

I.            INTRODUCTION

258.      The Commission prepared this section of Chapter IV of its Annual Report pursuant to Article 57(1)(h) of its Rules of Procedure, and has based its analysis on the information gathered during its hearings and information available from other public sources. On January 6, 2006, the IACHR transmitted to the State a copy of the draft of this section of its Annual Report for 2005, in keeping with the above-cited article, and it asked the Government of the Bolivarian Republic of Venezuela to submit its observations within one month.  On February 6, 2006 The Commission received from the Government the observations and comments to this Report.

259.       The Commission has closely monitored the human rights situation in Venezuela.  Special attention was given to situations related to the administration of justice, the lack of procedure or procedural delays in investigations of allegations related to human rights violations and extrajudicial executions, and the existence of an environment hostile to political dissent and to non-governmental organizations or media that make public accusations about human rights violations or irregularities in the public administration. In addition, in the last year the Commission has been alerted to the grave conditions in which persons deprived of liberty are held.

260.       The Commission also took note of certain actions aimed at implementing the decisions of the organs of the system and international human rights instruments. In this context, the IACHR welcomes the adoption of the Law Approving the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), adopted by the National Assembly on March 29, 2005, and expects that the instrument of ratification will be deposited soon.  

261.      The Commission expresses its satisfaction with the recognition of responsibility by the Government of the Bolivarian Republic of Venezuela in a public hearing held June 29, 2005, before the Inter-American Court of Human Rights, in the case of Blanco Romero et al.  The Venezuelan State fully accepted its international responsibility for violating the rights to life, humane treatment, a fair trial, and judicial protection, among others, enshrined in the American Convention on Human Rights, the Inter-American Convention on Forced Disappearance of Persons, and the Inter-American Convention to Prevent and Punish Torture. The case alleged the detention and subsequent forced disappearance of Oscar José Blanco Romero, Roberto Javier Hernández Paz, and José Francisco Rivas Fernández, at the hands of state agents, in the days following the December 1999 mudslides in Vargas.  In addition, the Commission welcomes a decision in the domestic jurisdiction related to the case of José Francisco Rivas Fernández in which the Constitutional Chamber of the Supreme Court of Justice ordered the proceedings reinstated, it not being possible to consider them terminated until the appearance, dead or alive, of Mr. Rivas. The Constitutional Chamber indicated that in cases such as the one he denounces, through a writ of habeas corpus, involving the forced disappearance of a person "not knowing the place where the person allegedly injured is to be found does not extinguish the duty to act of the judicial organ, which should set in motion to intervention of the competent organs through a lawful decision to investigate the whereabouts and physical condition of the person who was disappeared, to preserve the fundamental rights to physical integrity and to life, which may be compromised, and to uphold effective judicial protection and due process. By no means could the judge refuse to hear the matter under the pretext of lack of information as to the place where the person is being held, or with respect to the order of the authority that was the basis for the person being detained, or how it happened in the instant matter.”   

         262.      Along the same lines, the Commission notes with satisfaction the information it has received regarding the payment of adequate pensions and compensation for moral and material injury to the retirees of VIASA, in the context of an agreement signed before the IACHR between the State and the representatives in petition 667/01, Jesús Manuel Naranjo Cárdenas et al. (Retirees of the Empresa Venezolana de Aviación VIASA).  The Commission hopes that the State continues its efforts to comply fully with the commitments assumed, which include, among other aspects; recognition of responsibility and the implementation of a mechanism for signing up to enable victims and survivors to collect their retirement pensions in the future. 

263.     The Commission also learned that a Special Commission was recently created to investigate the deaths, torture, and disappearances of the 1960s, 1970s, and 1980s, and that one of the initial procedures of that Commission was to demand the declassification of the records and files of the police corps, so that they can be evaluated by a team specialized in criminology and criminal law, in order to determine responsibilities in the death and disappearance of more than 1,000 persons for political reasons during those decades (National Assembly, August 9, 2005).

         264.        Without detriment to the foregoing, in terms of the Caracazo and El Amparo cases, currently in the phase of enforcement of the judgments of the Inter-American Court of Human Rights, the Commission urges the State to comply fully with its obligations arising from these judgments by carrying out effective investigations that produce results domestically in terms of identifying and sanctioning the persons responsible for these acts. 

        265.       In addition, the Commission is discouraged by the persistent contentious position on the part of the Venezuelan State with respect to the inter-American system as expressed in the reaffirmation of Judgment 1,942 of the Supreme Court of Justice, which has already been a subject of extensive criticism by the Commission in past reports and press releases.[277]

        266.        Finally, it should be noted that the Commission accepted the recent invitation by the Government of Venezuela to visit Venezuela, which it hopes to do in coming months. The Commission is awaiting confirmation by the State of the dates of such a visit.  On the States response of February 6, 2006 it was indicated that the Government was working in a preliminary agenda for the Rapporteur’s visit to Venezuela with themes of interest for the State.

       267.       This chapter will seek to address the issues noted in the second paragraph of this report, placing special emphasis on the concept of tolerance as an overall and basic element for strengthening respect for human rights and fundamental freedoms in a democratic society. Prior to studying the issues noted above, the Commission wishes to refer briefly to the position of the Venezuelan State regarding the decisions and recommendations of the organs of the system, and to economic, social, and cultural rights.

A.        Position of the Venezuelan State with respect to the decisions and recommendations of the organs of the system

268.      The Commission will not refer in detail to the State’s arguments regarding the scope of the resolutions of the inter-American human rights system with respect to the exercise of the sovereignty of the states party to the American Convention, given that the Commission has had an opportunity to refer extensively to this issue in past reports and in its briefs submitted to the Inter-American Court related to the eight provisional measures ordered by that Court.  In addition, the Court addressed this point in its Orders of May 2004 in the provisional measures related to Liliana Ortega et al., Luisiana Ríos et al., Luis Uzcátegui, Marta Colomina, and Liliana Velásquez.[278]

269.      Yet the Commission will succinctly outline some of what it has stated in its prior briefs and will cite decisions handed down by the Court through its May 2004 Order.  Initially, it should be recalled that in its section on considerations, the Court indicated:

That the obligation of complying with the terms of the Court’s decisions corresponds to a basic principle of the law on the international responsibility of the State, supported by the international case-law, according to which States must carry out their international treaty obligations in good faith (pacta sunt servanda) and, as this Court has already indicated, and as provided by Article 27 of the 1969 Vienna Convention on the Law of Treaties, they may not, out of domestic considerations, fail to address the international responsibility already established.[279] Even though Venezuela argued that it is not a party to the Vienna Convention, the international obligation of pacta sunt servanda is a provision of customary law that is binding. As regards the implementation of the provisional measures ordered, the States obligated must adopt all measures necessary for the effective protection of the beneficiaries, in keeping with the instructions of the Court. This obligation includes the duty to inform the Court as frequently as indicated by the Court as to the implementation of the provisional measures. The State’s position in these provisional measures disregards the principles that prevail in international law and in the inter-American system, on affirming that the States decide discretionally and autonomously whether to carry out the decisions of the Court….  Compliance with the latter may not be left to the mere discretion of the parties.  It would be inadmissible to subordinate the mechanism provided for in the American Convention to restrictions that render the Court’s function, and, therefore, the system for the protection of human rights enshrined in the Convention, inoperable.[280]  Through the instruments for accepting its binding jurisdiction (Article 62(1) of the Convention), adopted in the exercise of their sovereignty, the States recognize, as Venezuela did, the right of the Court to resolve any dispute regarding its jurisdiction.[281] 

270.      The Commission emphasized the integral nature of the international system for the protection of human rights, as system which Venezuela freely accepted on ratifying the American Convention, consenting to certain limitations on its own jurisdiction so as to respect and enforce fundamental rights and guarantees for those who reside in its territory.

271.       The Commission noted that such a voluntary commitment gives rise to obligations on the part of the states to comply with and enforce in good faith the decisions of the organs of the system. As the Preamble of the American Convention states, international protection “reinforc[es] or complement[s] the protection provided by the domestic law of the American states,” which does not mean at all that it is “associative and heteronomous to the sovereignty of the States”[282] but rather that when a matter has not been the subject of a final decision in the domestic legal order, under the clauses of the Convention, it is not necessary to bring it before the inter-American system; nonetheless, when the matter in question has not been resolved in keeping with the international agreements signed by the State, the State is then under an obligation to adopt legislative and other measures to ensure that its domestic law provisions are in keeping with its obligations as a state party to the American Convention.

272.       The Commission considers that the drafters of the Convention established a single unified system of rights and obligations at the multilateral level, not a series of essentially contractual and reciprocal relationships among states. In light of this understanding, an act repudiating the organs of the system would appear to lack any legal foundation within the special human rights regime, and would thus be incompatible with the object and purpose of the Convention.

273.      Recently, the Inter-American Court has ratified this position when it said:

The ultimate purpose of the American Convention is the effective protection of human rights, and, pursuant to the obligations contracted under it, the States must endow its provisions with useful effect (effet utile), which implies implementation of and compliance with the resolutions issued by its supervisory organs, whether the Commission or the Court.[283]

274.     In this context, therefore, the line of case-law of Judgment No. 1,942[284] of the Constitutional Chamber of the Supreme Court of Justice, invoked by the State as the leading doctrine as regards the value and effect of the decisions of international organs for Venezuela,[285] as the Commission has noted in past reports, represents a position incompatible with the terms of the inter-American system for the protection of human rights.  In view of the foregoing, the Commission expects that the Venezuelan State, in keeping with Articles 1 and 2 of the American Convention, will take the necessary measures to ensure that its domestic legislation and practices guarantee the full exercise of human rights in the terms of the Convention.[286]

275.      The Venezuelan State response of February 6, 2006 indicating that the State supports to the organs of the Inter-American System, however reiterated that “those acts that have emanated from these organs of the system and that shown not to withhold the legality and the legitimacy to be obeyed, will not have the endorsement of the Venezuelan State”.  At the same time, the State considered that the judgment 1942, emanated of the Constitutional Chamber from of the Supreme Court of Justice dated July 17, 2003, declares that “above the Supreme Court of Venezuelan Justice, and to the effects of the domestic law, there is no supranational, transnational or international court.  Consequently, the State reaffirms that decision of such organs will not be executed in Venezuela if they contradict the Venezuelan Constitution, being only in matter of Caribbean and Latin-American integration (article 153 of the Constitution of the Venezuelan State) where the competences of the Venezuelan Courts might be transferred to the supranational organs, lacking application in our country any decision of the supranational, transnational or international organs that violate the Constitution, or whereas there is no exhaustion of domestic remedies in Venezuela”.  Finally, the State indicates that Judgment 1942 establishes that the organs of the system have different functions. To know, on the one hand, the Commission formulates recommendations to the States while by another the Inter-American Court can emit obligatory interpretations on the American Convention ”when the States has requested, which means that the States accept such decision”. 

276.       From the Government’s response it is possible to infer that the State conditions the decisions of the international human rights organs to a demonstration that would show no to be in contradiction with the Constitution and affirms that the existence of such contradiction must be determine by the Constitutional Chamber of the Venezuelan Supreme Court.  The Commission reiterates that the member states can not make discretional decision as to the manner and opportunity of compliance with the resolutions of the international organs.  The Commission reiterates the necessity to remember; that to this respect the Inter-American Court stated that by no mean States can invoke the internal right to evade his international obligations.[287]  On the other hand, regarding the discretional power of a State the Inter-American Court has indicated:

Accepting the said declaration in the manner proposed by the State would lead to a situation in which the Court would have the State’s Constitution as its first point of reference, and the American Convention only as a subsidiary parameter, a situation which would cause a fragmentation of the international legal order for the protection of human rights, and which would render illusory the object and purpose of the Convention.[288]

277.       With respect to of the statement of the State that the organs of the inter-American system have different functions, the Commission points out that independent from its functions the decisions of both organs have juridical value.

            B.           Economic, social, and cultural rights

278.      The Commission notes that the policy of the current national government has sought to improve the country’s historical inequities, while in other people’s view these policies has been identified as populist welfare-type actions that seek political support, but that do not eradicate the structural problems of inequity and discrimination.  Beyond this debate, the results of the Government’s missions and projects to offer education, health care, food and nutrition, social services, and employment appear to be showing favorable results.[289] 

279.       On the February 6, 2006 response, the Venezuelan State, indicates that the country is about to reach the goal of wide broad basic education.  It indicates that through the Alphabetization Plan, the Mission Robinson managed to alphabetize a million 482 thousand 453 people of which 70 thousand are indigenous population and 7500 people with different disabilities. 

280.       With regard to the right to health, the State indicates that with the Barrio Adentro Mission primary attention was provided to excluded sector of society.  In relation with the right to food, the State reported that its was develop the Mercal Mission which has benefited almost 13 million people through the creation of Popular Dining rooms, Common Kitchens, School, Industrial or Popular Dining rooms and Kitchens and Common Vans.

281.      The Commission received additional information indicating that in some cases major advances can be noted, such as Venezuela’s compliance with the millennium goal regarding cutting in half the percentage of the population that does not have access to drinking water.

282.      Sectors of civil society who acknowledge these gains have also identified three areas of concern: “[1.] that the Missions don’t have continuity and do not overcome the logic of an ‘emergency operation’; [2.] that the lack of oversight regarding their performance may be facilitated by administrative corruption; and, [3.] that the social policies are presented as gifts from the police force that controls the National Executive, and not as the satisfaction of rights to which the State is obligated.”[290]

283.       No doubt the Government of Venezuela’s social and economic programs merit a more in-depth study from the human rights point of view. The Commission recognizes the importance of this area, and hopes to have an opportunity to collect empirical information so as to be able to examine it in an upcoming visit to the country.   

II.         THE ADMINISTRATION OF JUSTICE 

284.     In its reports on Venezuela in the last two years, the IACHR has analyzed the independence and impartiality of the judicial organs, the provisional status of judges, and the composition some institutions of the justice system. In addition, the IACHR has made recommendations on impunity and non-compliance with decisions of the supervisory organs of the inter-American system.  

285.      This part will address three issues in this area: (i) the problems underlying the provisional nature of the judges and prosecutors of the Public Ministry, (ii) the use of the military courts for trying civilians, and (iii) the situation of impunity, particularly in the case of extrajudicial executions.  

A.         Provisional status of the judges and prosecutors of the Public Ministry

        286.      The Commission takes note and evaluates as a positive aspect the allusion presented by the State in its observations of February 6, 2006, with respect to diverse technological advances in the administration of justice and its information with regard to access to the justice in different regions of the country and the number of decision undertaken by those judicial instances.  Also, the State emphasizes the process of modernization in which is engaged in order to surpass the problem of the provisional tenure of the judges.  It indicates that during 2005, the National Magistracy School and the organization of competitive examinations, in the framework of the “Mission Justice”, had as an objective to improve the tenure of all the Venezuelan judges.   

287.       The National Magistracy School, together with the Supreme Court of Justice, advanced a Special Training Program for the Regularization of the Judges´s Tenure, having 164 judges take the oath after winning the competitive examinations for the taking position and permanency in the Judicial Power.[291]  Likewise, from April 6, 2005 the Plan of Structural Reform and Modernization of the Justice (PREMius) approved by the Supreme Court of Justice, took place under the coordination of the board of directors of this High Court, jointly with the Judicial Commission.  Through this plan a process of evaluation to the totality of the tenure and provisional judges was initiated.[292]  The President of the Supreme Court manifested that due to this program, by the end of 2005, tenure was reached for sixty percent of the provisional judges, showing a difference to the twenty percent which was reached at the beginning of 2005.  In words of the President of the Supreme Court, Justice Omar Mora Díaz, "these judges have tenure until correspond them the retirement in his charges”, also, it is sought that by 2006 this process will permit the tenure for the totality of the judges.[293]  The Commission considers that the strengthening of this process is a priority to consolidate the independence and autonomy of the judicial power in the Bolivarian Republic of Venezuela.   

288.       The governmental initiatives include the improvement of the salary conditions and social security of the officials of the Judiciary and diverse initiatives to face the procedural delays due to the absence of judges.  Also, and in order to avoid the concentration the political claims in a single group of judges and prosecutors, the Executive has proposed a system of rotation of the tenure judges.   

289.        On the other hand, the Report of the Executive Directorate of the Magistracy corresponding to the first semester of 2005, indicated that of the totality of the country’ judges, the 71% remains under study on the part of this Executive Directorate to determine if they might continue in their positions or if they would be destitute, as already has happened with 230 rectors (12% of the judges of the country).[294]  The 17% of the present staff of judges was elected for the judicial branch during the first semester of this year, by designations of the Judicial Commission, with the purpose to fill old vacancies.  According to the information of press, the percentage of destitute judges responds to a 12%.  The states with greater proportion of judges deposed are the Táchira State with 12%, the metropolitan area of Caracas with 11%, Mérida with 10% and Aragua with 9%.[295]  The Report of the Executive Directorate indicated that the Supreme Court of Justice and the Commission of Judicial Re-organization will continue deciding on the distribution of the provisional judges to the different zones of the country.  At the same time, the National Magistracy School promoted the Special Program of Training for the Regularization of the Tenure for provisional and temporary judges of diverse zones of the country that has as purpose the preparation of the candidates to occupy the judicial plazas in tenure.   

290.      In September 2005 information was received on the removal of 330 judges who had not passed the education and training courses given by the National Judicial School. On presenting these data, the president of the Supreme Court of Justice (TSJ), Justice Omar Mora Díaz, indicated that those vacancies would be filled by lawyers designated by the Plenary Chamber of the Supreme Court by means of a merit-based competitive process (concurso de credenciales), and an intense nine-month course. After the course, those selected participate in a competitive process to seek appointment as a judge with tenure.  Since this initiative, it has been stated firmly that the appointments will no longer be made by the Judicial Commission, as had been the case, but by the Plenary Chamber.  The objective is evidently to address the criticism as to how the Judicial Commission administers the process of selecting temporary judges, which was addressed by the IACHR in its earlier reports.   

291.       The IACHR takes note of the efforts under way to address the problems in the processes of selecting new members of the Judiciary as well as the measures aimed at confronting the structural and historical issue of the provisional nature of most judges in Venezuela.  Nonetheless, below information will be provided about some cases of removals, replacements, and other measures which, given the provisional appointments and the reforms under way, have made it difficult to ensure the full independence of the judiciary in Venezuela. 

292.       In its 2003 Report and in the follow-up on recommendations included in the 2004 Annual Report, the IACHR has stated its concern over the provisional status of judges and the obstacles to implementing competitive hiring processes that safeguard the judicial career service. In its communication of February 9, 2005, to the IACHR, the State cited information from the Executive Directorate of the Judiciary recognizing that 18.30% of the judges enjoy tenure while 81.70% are provisional.[296]   

293.       The Commission is especially concerned that the courts of the Contentious-Administrative jurisdiction, which should exercise judicial review of major acts of the national government, continue to be negatively affected by the provisional status of its members. In September 2003, most of the judges of the First Court for Contentious-Administrative Matters were dismissed.  For some months this court ceased to function because new judges hadn’t been appointed to fill the vacancies.[297]  Subsequently, temporary judges were appointed.  On September 27, 2005, the Judicial Commission decided to remove the temporary judges (principal and alternate judges) who sat on the First and Second Courts for Contentious-Administrative Matters, considering that they did not pass the institutional evaluation to which they were subjected. As reported in the respective news article, an effort is under way to favor those judicial officers who are able to hold the positions, in the context of the strategic plan for transforming the Judiciary.[298]  While it is true that the motive cited for explaining the removal is admissible, the Commission reiterates that it is highly problematic that a court that must analyze matters of such importance– and, in particular, many acts of the executive branch – has for several years now lacked career service judges.  The judicial officials evaluated were in their positions since August 2004 and once again other judicial officials were hired. The Commission hopes that the assessment made by the new judges, which encompasses both their human resources and the status of the cases before them,[299] will enable them to plan and carry out the tasks required for the normal operation of such an important judicial body. 

294.       In addition, the IACHR wishes to express its concern over the provisional status of the prosecutors assigned to the Public Ministry. Thus far in 2005, 307 provisional, itinerant, and alternate prosecutors have been appointed, such that approximately 90% of the prosecutors are provisional.  The changes in investigative prosecutors limit progress in the respective investigations, considering, for example, the importance of continuously collecting and evaluating evidence. Accordingly, this situation may have negative consequences for victims’ rights in the context of criminal proceedings related to human rights violations. Some complaints note that the rotation of prosecutors in the Public Ministry has given rise to difficulties drawing out the relationships between the facts and the evidence on which the accusations were based.  In addition, according to some studies, these prosecutors are arbitrarily designated by the Attorney General of the Republic without any prior training or objective selection, as should be the case, according to the law that governs their functions.[300]  As a result, these prosecutors are freely appointed and removed by the Attorney General of the Republic, who served as Executive Vice President of the current government of Venezuela before being designated to that lofty responsibility. According to the information reported, the Attorney General of the Republic appoints attorneys who enjoy his trust – and taking account of political considerations – to serve as prosecutors in Venezuela, who may be removed without any cause whatsoever, since they do not enjoy stability in their posts.   

295.      Another negative effect of the provisional status of judges has to do with the lack of guarantees safeguarding them from removal and replacement, actions that are described as retaliation for having ruled against the Government.  

296.       On June 3, 2005, the Ninth Superior Court for Contentious Tax Matters handed down a final judgment ruling favorably on the motion to vacate filed by Globovisión against Resolution No. GRF 03/000298, regarding the determination of taxes contained in the Organic Law on Telecommunications, issued by the National Telecommunications Commission (CONATEL).  The Court took a different position in response to CONATEL’s argument on the existence of alleged discounts by Globovisión in its invoicing, determining that they did not answer to the reality of the facts, and therefore that the taxable baseline calculation of the tax by Globovisión was lawful.  The Commission has received information according to which, after this judgment, the Political-Administrative Chamber decided to replace the judge who decided in favor of Globovisión and appoint his replacement.[301]   

297.       In another case, the Judicial Commission of the Supreme Court of Justice struck down the designation of the 22^nd Trial Judge, María Mercedes Prado, who was about to decree the conditional release of one of the persons accused of carrying out attacks against the diplomatic offices of Spain and Colombia, considering that the persons deprived of liberty were about to have completed their second year in detention.[302]   

298.      In February 2005 Mónica Fernández, Judge of the Second Trial Court of the Criminal Judicial Circuit for the Judicial District of the Caracas metropolitan area, was suspended.  She effectuated the judicial review of the order to search the home of former Interior and Justice Minister, Ramón Rodríguez Chacín, and his subsequent incarceration during the events of April 2002.  As a result, she has faced criminal indictment by the Public Ministry and was subsequently suspended.[303] 

299.       In early May 2005, the Judicial Commission of the Supreme Court ordered the removal of 16 judges in the state of Lara. After a three-month investigation, the judges were said to have been engaging in corrupt practices.  The Guardia Nacional appeared on the scene to enforce the removals, to impede their access to the judicial offices.  The judges removed were replaced by provisional judges.[304] 

300.       In June 2005, 27 judges from the state of Táchira were suspended and/or removed from their positions by decision of the Judicial Commission.  In the region of Táchira, 90% of all judges are provisional, which is serious if one considers that they must work with particularly complex issues, such as the criminal proceedings concerning the events of April 2002.  The temporary judges appointed as replacements include members of the Frente de Abogados Bolivarianos del Táchira (Bolivarian Lawyers’ Front of Táchira), a political organization affiliated with the governing party, and former workers of the state government.[305]  

301.       In November 2005, Judges Julián García and Dulce Mar Montero were suspended for three months; they were subjected to a disciplinary sanction and will be the subject of an inquiry by the Commission for Restructuring the Judicial Branch in Lara.[306]  They were accused of inexcusable error at the time of making a decision. It should be noted that these judges had lodged complaints of corruption against the presiding judge of the Criminal Judicial Circuit for Lara. 

302.       Beyond the question of whether the removals of judges in the foregoing cases might have legitimate grounds, such as corrupt or illegal practices, the doubts that such appointments and mobility give rise to make clear the need to strengthen the judicial career service immediately, strictly abiding by the law and by international standards. The IACHR notes that despite the recommendations made in recent years, judicial officers continue to be removed through administrative proceedings bereft of sufficient procedural guarantees. For this reason, it is reiterated that having a large percentage of provisional judges seriously prejudices the right of citizens to adequate administration of justice; it also has a negative impact on the right of judges to stability in their employment as a guarantee of judicial independence and autonomy. 

303.       Finally, the IACHR is concerned about information according to which the election of Marco Tulio Dugarte as a new member of the Constitutional Chamber of the Supreme Court was apparently carried out without following the procedures established in Article 8 of the Organic Law of the Supreme Court of Justice.  According to  this provision, if on three occasions a qualified majority vote is not obtained for selecting a new judge, one must call a fourth session for designation by a simple majority. The information forwarded to the IACHR alleges that in the case of Judge Dugarte, candidates were not nominated, nor was there any vote. The designation of Mr. Dugarte apparently occurred as a result of the fact that he had been alternate to the former president of the Supreme Court, Iván Rincón.  Nonetheless, a session should have been convened for the vacancy to be officially free. In addition, the designation of the new judge’s alternates has been called into question, because it was not on the order of business, as required by the aforementioned law.  The IACHR highlights the importance of respecting the Judiciary.  

B.          The use of military courts for trying civilians

         304.       The Commission’s recommendations related to the use of military criminal courts for placing civilians and retired military personnel on trial have not been heeded. In its Annual Report for 2004, the Commission described the information it had received according to which civilians are being judged by courts under the military justice system. According to the Programa Venezolano de Educación-Acción en Derechos Humanos, since October 2003 more than 100 persons who are not members of the military have been tried or are being tried by military courts.  Special mention should be made of the cases of persons accused of being Colombian paramilitary members, several retired members of the military declared to have been in disobedience, two persons who had been caught at Fort Tiuna with military equipment, as well as journalist Patricia Poleo.[307]  In 2005, the Commission learned of information according to which 19 civilians, mostly campesinos accused of belonging to or collaborating with the Fuerzas Bolivarianas de Liberación (FBL), the Ejército de Liberación Nacional of Colombia (ELN), and the Fuerzas Armadas Revolucionarias de Colombia (FARC), had been tried by military courts and subjected to torture.[308]

 305.      The IACHR takes this opportunity to reiterate its doctrine according to which military courts can be used only to judge members of the military who have committed service-related offenses, and that military courts do not have the independence or impartiality needed to judge civilians.[309]  The Inter-American Court has confirmed that “in a democratic state of laws, the criminal military jurisdiction is to be restricted and exceptional in scope and intended to protect special juridical interests associated with the functions that the law assigns to the military forces.  Hence, military personnel are to be tried for crimes or misdemeanors that, by their nature, harm the juridical interests of the military.”[310]  

306.     On this point, the IACHR reiterates its appeal to the Venezuelan State to adopt expeditiously the measures needed to transfer to the regular jurisdiction all those cases heard by the military courts in which the exceptional characteristics determined by the Inter-American Court do not strictly apply.   

C.         The situation of impunity, in particular in cases involving extrajudicial
 execution

        307.       Taking in consideration the observations of the Venezuelan State to the project Report, the Commission takes note of the diverse norms contemplated in the legal code of the Bolivarian Republic of Venezuela that refer to the prevention and fight against the impunity.  The Commission recognizes as a positive aspect the training programs which are said to be carrying out to the officials and bodies of security of the State, destined to sensitize, promote and coach in the respect of the human rights.   

308.      Impunity in cases of extrajudicial execution is one of the serious problems facing Venezuela.  It is an issue that encompasses the activity of para-police groups, violence against socially marginalized persons, and the persecution of campesinos involved in the agrarian reform process. Even though serious aspects that continue to be of concern to the Commission on this issue will be discussed, some efforts of the State to systematize judicial action in the face of the extrajudicial executions of Venezuelan campesinos are recognized. 

 309.      At a hearing held during the 123^rd session of the IACHR, information was provided on selective assassinations of campesinos and agrarian leaders in the context of the State’s land redistribution initiative. The social conflict around the redistribution policy was expressed clearly when, beginning in November 2001 (the date the Law on Lands and Agrarian Development was enacted), the number of assassinations of campesinos in the form of sicariato (paid killings) began to increase. The victims are mostly campesinos who have mobilized to press their claims to the land or squatters occupying lands whose ownership is disputed. The deaths began in the state of Zulia and have extended to 14 other states across the country, according to information on record with the Office of the Attorney General of the Republic and set forth in the above-referenced public hearing before the IACHR.  It was noted that one of the main difficulties standing in the way of addressing the matter is the scant valid and reliable information available. The disparity in the figures on deaths recorded among the campesino organizations, and between them and the Public Ministry, is an indicator that the situation is being rendered invisible; according to the petitioners, the magnitude of the phenomenon is unknown, nor are the forms by which it is carried out, which one would need to know not only to ensure adequate administration of justice, but also to design and implement preventive policies to halt further assassinations.  

310.       At the same time, it was alleged that these deaths are caused not by organized crime, but by common crime. This would be suggested by the existence of a clearly identifiable pattern of conduct on the part of the perpetrators.  The deaths occur in the form of sicariato, through selective assassinations; seldom are the direct perpetrators or masterminds identified. The victims have often received death threats previously, and constitute a clearly delimited sector of the population: campesinos, especially agrarian leaders, supportive of the project being promoted by the national government.  Of the total number of victims recorded by the Coordinadora Agraria Nacional Ezequiel Zamora, 66% (55 deaths) have been leaders or members of campesino organizations.  

311.        During the hearing, the Venezuelan State reported that a work plan was designed to begin documentary verification of cases so as to respond in timely fashion to the illegal conduct reported. The study was divided into regions as follows: the Central Region, which encompasses the states of Cojedes, Carabobo, Miranda, and Aragua; the Andean Region, in the state of Mérida; the Llanos Region, which includes the states of Apure, Guárico, and Barinas; the Western Region, represented by the states of Zulia, Yaracuy, Falcón, Táchira, and Portuguesa; and the Eastern Region, which is made up of the states of Sucre and Anzoátegui.  Twenty-five (25) prosecutors were assigned to those regions, organized into working groups, who personally conducted the investigations that were initiated. As a result of these efforts, 58 cases were identified related to 73 homicides and nine cases of persons who were wounded. The study carried out by the State yielded a figure of 69 persons assassinated, 34 of whom were victims of the crime of sicariato.[311]   

312.       In addition, it was indicated that in these 69 cases, 36 persons have been ordered held in pre-trial detention by Oversight Courts (Tribunales de Control), and 19 arrest warrants that have yet to be executed.  Three cases have resulted in convictions, six are in the trial phase, and three are going back to the initial phase, as the proceedings were vacated.  Additionally, 31 indictments have been handed down by the Public Ministry; these are following their normal course. The State concluded by noting that it has been diligent in taking measures to correct and stop the attacks against the campesino community. While it is true that this information must be compared to what is offered by the petitioners and complainants, the IACHR recognizes the efforts of the Venezuelan State to address this problem. 

 313.       As regards the issue of extrajudicial executions by para-police groups, the Commission calls attention to the guilty verdict handed down against 13 police officials from the state of Portuguesa having been singularized as being part of a death squad.  On August 12, 2005, the 17^th Court of the Criminal Circuit for the metropolitan area convicted the police of the killings of brothers Ender Alexander and Gonzalo Mendoza; and the killings of Omar Medina and Alfonso Hidalgo.  Nonetheless, given the numerous victims of the death squads that have operated in the state of Portuguesa, there is a need for greater initiative in the investigations into these killings.  

314.        There is special concern over the failure to investigate many of the extrajudicial executions carried out by para-police groups, in particular those that take place in the context of violence against socially marginal persons.  Some reports[312] have indicated, inter alia, the lack of a state policy to enable victims to accede to the justice system, the general ineffectiveness of habeas corpus in cases of forced disappearance, the failure of the police organs to enforce judicial decisions, the indiscriminate and continuing suspension and postponements of hearings, the insufficient means of transportation for transferring defendants and witnesses, and the removal of the trials to places other than where the victims reside, and where the facts occurred.  As regards the Public Ministry, one notes the limited implementation of timely and effective measures to protect victims, family members, and witnesses of human rights violations, the lack of a time certain for filing the criminal charges when no one has been detained[313] and shortcomings when it comes to taking the initiative to collect evidence.  Among these shortcomings it is noted that in many cases prosecutors are not timely in ordering the taking of expert testimony that is legally recognized such as crime-scene survey, ballistic comparison, trajectory inside the body, analysis of bullet traces on victims’ clothes, etc.[314]  In addition, on some occasions the Public Ministry, though able to do so, does not use its disciplinary power, which enables it to supervise the actions of the investigative police organs.

 315.      The Commission expects that the Venezuelan State will do everything in its power to carry out its duties to investigate and punish the direct perpetrators and masterminds of these executions. 

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