Amicus Curiae: Political Discrimination in Venezuela

José Miguel Vivanco, on behalf of Human Rights Watch, located at 350 Fifth Avenue, 34^th floor, New York, United States, presents this amicus brief to the Honorable Inter-American Court of Human Rights in case “Rocío San Miguel et al. v. Venezuela.” For that purpose, we respectfully state:

1. Purpose and Summary of the Amicus Curiae Submission

Human Rights Watch respectfully requests that the Honorable Inter-American Court of Human Rights accept us as Friends of the Court in order to submit for its consideration international human rights legal arguments that are relevant to the resolution of case “Rocío San Miguel et al. v. Venezuela.”

The issue presented before the Court is whether the Bolivarian Republic of Venezuela violated the rights of three Venezuelan citizens who were fired from their government positions after they supported a recall referendum petition of President Hugo Chávez’s presidency in 2003. Section II of this brief provides background on Human Rights Watch and our interest in the case. Section III includes a summary of the facts and procedural history of the case. In section IV, we describe applicable sources of international law that explain Venezuela’s international human rights obligations regarding the right to free speech, political rights, the right to non-discrimination, and victims’ right to have access to an effective remedy.

2. Background on Human Rights Watch and Our Interest in the Case

Human Rights Watch is a nongovernmental organization that has been dedicated to protecting human rights since 1978 (www.hrw.org). The organization is independent and impartial with respect to any political, religious, or economic organizations or movements. By mandate, the organization can receive no money, either directly or indirectly, from any government. It is headquartered in New York and has offices in several other cities in different continents. Human Rights Watch enjoys consultative status with the Organization of American States, the United Nations Economic and Social Council, and the Council of Europe, and maintains a working relationship with the Organization of African Unity.

Human Rights Watch regularly monitors the human rights situation in Venezuela, and has repeatedly exposed and expressed concern regarding violations to fundamental rights recognized in international treaties ratified by Venezuela.

As part of its mandate, Human Rights Watch uses judicial and quasi-judicial tools of domestic and international law to contribute to protecting and promoting human rights. That commitment has motivated this specific Human Rights Watch petition.

3. Summary of Facts and Procedural History of the Case

The petitioners in this case are Rocío San Miguel Sosa, Magally Chang Girón, and Thais Coromoto Peña, three Venezuelan citizens who were fired from the National Council of Borders (Consejo Nacional de Fronteras), a government agency that works on Venezuela’s borders, in 2004.[1] None of them had permanent positions at the agency, but they had all signed various consecutive contracts with it for several years, all of which had been successfully completed.[2]

At the end of 2003, the three women signed in favor of carrying out a recall referendum petition of President Chávez. The Venezuelan Constitution allows for a recall referendum if the president has been in office for half of the six-year term.[3]

After denouncing the referendum effort as an act “against the country,” President Chávez told electoral authorities they should give legislator Luis Tascón a copy of a list of those who signed the referendum petition, which was made publicly available on the internet. The “Tascón list” and an even more detailed list of all Venezuelans’ political affiliations (the “Maisanta program”) were then used by public authorities to target government opponents for political discrimination.[4] In 2005, President Chávez acknowledged the use of the Tascón List for purposes of political discrimination.[5]

On March 12, 2004, San Miguel, Chang Girón, and Thais Coromoto Peña received a letter from the president of the National Council of Borders stating that their contracts were being terminated as of April 1, 2004. The letter did not provide any motives for the dismissals. The three women had been previously informed by another high level official that they were being fired for signing the referendum petition. The Inter-American Commission on Human Rights reviewed taped conversations that corroborated these claims.

A fourth government employee who was fired that day from the Council was reinstated after he claimed someone else used his ID to sign in favor of the recall referendum, and said he would retract his signature.

None of the complaints filed by the three petitioners before Venezuelan authorities—including the Ombudsman Office, and the labor and criminal justice systems—were successful.

The petitioners filed a case with the Inter-American Commission on Human Rights (IACHR) in 2006. After admitting the petition in 2013, on March 15, 2016, the IACHR brought the case to the Honorable Inter-American Court of Human Rights, arguing that Venezuela had violated the political rights and rights to free speech and non-discrimination of Rocío San Miguel Sosa, Magally Chang Girón, and Thais Coromoto Peña.

4. Applicable International Law

1. Preliminary Considerations

The Constitution of the Bolivarian Republic of Venezuela states that international human rights treaties ratified by Venezuela are directly applicable by Venezuelan courts and government authorities, and that treaties that provide greater protections must be given prevalence over Venezuelan laws and the Constitution itself.[6] The rights to free speech, non-discrimination, political participation, and to have access to an effective remedy in case of abuse are provided for in several international treaties ratified by Venezuela, including the American Convention on Human Rights (ACHR), and the International Covenant on Civil and Political Rights (ICCPR).[7] This brief mentions other relevant treaties ratified by Venezuela, such as the International Covenant on Economic, Social, and Social Rights (ICESCR) and several ILO Conventions.

Although Venezuela withdrew from the ACHR in September 2012, limiting the ability of victims of abuse to bring cases to the Inter-American Court of Human Rights if the abuses occurred after September 2013, the ACHR is a valid source of law for the present case given that the abuses were committed prior to the treaty’s denunciation.[8] At that time, the case was already under consideration by the IACHR.

2. The Link between Freedom of Expression and Political Rights

The right to free speech is provided for in article 13 of the ACHR, as well as in article 19 of the ICCPR.

The ACHR’s definition states that such right “includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice” (emphasis added).

As such, based on existing Inter-American case law, freedom of expression should be understood to include the right to express one’s political opinion through means such as casting a vote on an election or recall referendum, or signing a petition to put in motion the recall process. This Honorable Court has specifically stated that:

Political rights are human rights of fundamental importance within the Inter-American system and they are closely related to other rights embodied in the American Convention, such as freedom of expression, and freedom of association and assembly; together, they make democracy possible.[9]

According to the court, freedom of thought and expression is vital for the proper functioning of the democratic system of government. In its Advisory Opinion OC-5, this Court held that “…freedom of expression is a cornerstone upon which the very existence of a democratic society rests.”[10] This doctrine was later reaffirmed by this Court several times.[11] In one case, the court stated that:

Without an effective guarantee [to protect] freedom of expression, democratic systems are weakened, promoting a fertile ground for the entrenchment of authoritarian systems.[12]

Under article 23.1 of the ACHR, on the right to participate in government, every citizen has the right to “take part in the conduct of public affairs, directly or through freely chosen representatives.” When interpreting this article, this Honorable Court ruled that:

Citizens have the right to play an active role in the conduct of public affairs directly through referenda, plebiscites or consultations or through freely elected representatives… The right to vote is an essential element for the existence of a democracy and a way in which citizens freely express their wishes and exercise the right to participate in government.[13]

The full respect of the rights to express one’s views and participate in government entails not only participating in elections, but also not suffering reprisals—including arbitrary dismissals from government jobs—for doing so.

3. Political Discrimination

Discrimination against individuals for exercising political rights is forbidden by international law.

Under article 24 of the ACHR, “all persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.” Article 1, for its part, states that State Parties should “ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition” (emphasis added). Articles 26 and 2 of the ICCPR provide for similar protections.

In its Advisory Opinion OC 18, this Honorable Court has established that the principle of equality and non-discrimination “belongs to the realm of jus cogens and is of a peremptory character” and “entails obligations erga omnes of protection that bind all States and give rise to effects with regard to third parties, including individuals.”[14] These obligations include the need to take affirmative action to address discriminatory situations that adversely affect a specific group of people, as well as avoiding actions that “directly or indirectly” aim at “creating situations of de jure or de facto discrimination.”[15] According to the court:

This translates, for example, into the prohibition to enact laws, in the broadest sense, formulate civil, administrative or any other measures, or encourage acts or practices of their officials, in implementation or interpretation of the law that discriminate against a specific group of persons because of their race, gender, color or other reasons (emphasis added).[16]

International law specifically bars discrimination in public sector employment. Article 25 (c) of the ICCPR requires that “every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 [on the prohibition of discrimination] and without unreasonable restrictions, to have access on general terms of equality to public service in his country.” In its General Comment on this article, the Human Rights Committee—charged with interpreting the ICCPR—noted that to ensure equal access, “the criteria and processes for appointment, promotion, suspension and dismissal in public service positions must be objective and reasonable.”[17]

The Human Rights Committee has also stressed that “the principle of access to public service on general terms of equality implies that the State has a duty to ensure that it does not discriminate against anyone. This principle is all the more applicable to persons employed in the public service and to those who have been dismissed.”[18]

For their part, article 6 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador” and article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the right of every person to work.[19] The Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment 18 on the right to work held that:

…States parties have a core obligation to ensure the satisfaction of minimum essential levels of each of the rights covered by the Covenant. In the context of article 6, this ‘core obligation’ encompasses the obligation to ensure non-discrimination and equal protection of employment…[20]

The CESCR also stated that:

…The Covenant prohibits any discrimination in access to and maintenance of employment on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation, or civil, political, social or other status, which has the intention or effect of impairing or nullifying exercise of the right to work on a basis of equality (emphasis added).[21]

International labor standards, specifically Convention No. 111 of the International Labour Organization (ILO), also prohibit discrimination on the basis of political opinion in access and treatment in employment.[22]

Similarly, ILO Convention No. 158 states that “the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking.”[23] Furthermore, it highlights that “race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin” shall not constitute valid reasons for termination (emphasis added).[24]

It is generally accepted that governments may apply political criteria in recruiting decision-makers at the top levels of public administration, and most governments do so. But these political appointments must be clearly defined and limited in nature so as to prevent abuse. It is a different matter when career civil servants are hired or dismissed in blanket fashion solely because of their presumed political views, whether such discrimination operates by law or occurs informally.

4. Access to Justice and Judicial Independence

In light of article 25 of the ACHR, victims of abuse are entitled to access to a “simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights…., even though such violation may have been committed by persons acting in the course of their official duties.” The right to an effective remedy is also provided for in article 2 (3) of the ICCPR. The right to appeal before an impartial body when a worker is fired is included in article 8 of ILO Convention No. 158.

Venezuela is party to human rights treaties—including the ACHR and the ICCPR—that require it to safeguard the independence and impartiality of its judiciary.[25] The UN Human Rights Committee has ruled that for a tribunal to be “independent and impartial,” the executive must not be able to control or direct the judiciary,[26]  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.”[27] 

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.”[28] 
• 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.”[29] The UN Basic Principles, similarly, state that “[a]ny method of judicial selection shall safeguard against judicial appointments for improper motives.”[30]
• 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.”[31]

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.[32] 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.”[33]

Victims whose rights were violated in Venezuela have little chance of securing redress or meaningfully challenging government actions given that, after more than a decade of assaults on its independence, the Venezuelan judiciary has ceased to function as an independent branch of government and has routinely upheld abusive government policies and practices.[34]

5. Petition

For the abovementioned reasons, hoping that our input can contribute to the just resolution of this case, we ask this Honorable Court to:

1. Accept Human Rights Watch as a Friend of the Court in this case, and
2. Take into account the legal arguments and international standards presented in this brief, as well as the annexes submitted with it, when evaluating the responsibility of Venezuela in this case.

José Miguel Vivanco
Human Rights Watch

ANNEXES

• Human Rights Watch, “A Decade Under Chávez: Political Intolerance and Lost Opportunities for Advancing Human Rights in Venezuela,” September 2008, https://www.hrw.org/report/2008/09/18/decade-under-chavez/political-intolerance-and-lost-opportunities-advancing-human .
•  Human Rights Watch, “Tightening the Grip: Concentration and Abuse of Power in Chávez’s Venezuela,” July 2012, https://www.hrw.org/report/2012/07/17/tightening-grip/concentration-and-abuse-power-chavezs-venezuela .