AI INDEX: AMR 53/008/2000 1 August 2000 |
1.
Introduction
Venezuela signed
the United Nations (UN) International Covenant
on Civil and Political Rights on 24 June 1969
and ratified it on 10 May 1978. Venezuela is
also a party to the Optional Protocol to the
International Covenant on Civil and Political
Rights. On 29 July 1991 Venezuela ratified the
Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment and
early this year, on 6 June 2000, the Government
of Venezuela ratified the Statute of the
International Criminal Court.
On 29 December 1999
a new Constitution came into force in Venezuela.
The National Constituent Assembly of Venezuela
approved the final text of the Constitution on
14 November 1999 and it was put to referendum on
15 December 1999. About half of those entitled
to vote did so and the referendum resulted in
the new Constitution being adopted, with 71% of
the votes in favour. Under the new Constitution,
the name of the Republic of Venezuela was
changed to the Bolivarian Republic of Venezuela.
The 1999
Constitution is an important and significant
step forward in terms of human rights. The
provisions in the Constitution include the
following: the clarification of the status of
human rights treaties within the constitutional
hierarchy and their relationship to domestic
legislation; the obligation to investigate and
punish those responsible for human rights
violations and crimes against humanity, as well
as the principle that there should be no statute
of limitations for such offences; safeguards to
ensure that human rights violations and crimes
against humanity do not go unpunished; the
principle that human rights violations and
crimes against humanity should not be tried in
military courts; the right to justice and
redress; prohibition of the use, at all times
and in all circumstances, of the death penalty,
torture, enforced disappearance and
incommunicado detention; the principle that the
right to a fair trial, together with all
fundamental human rights, cannot be revoked; and
the banning of secret or special courts. The
institution of Ombudsman was also established in
the new Constitution and has already begun to
function.
One of the greatest
challenges facing the Venezuelan authorities is
to enact human rights legislation that reflects
the new constitutional framework. To this end, a
Comisión
Legislativa Nacional ad hoc, ad hoc National
Legislative Commission, was set up with a
mandate from the
Asamblea Nacional
Constituyente, National Constituent
Assembly, to legislate on certain specific
issues. Among other things, the Commission was
authorized to adopt a
Ley de Amnistía
Política General, General Political
Amnesty Law, benefiting those who participated
in the armed conflict between government forces
and armed opposition groups during the 1960s and
1970s and in the two failed 1992 coup attempts.
This law was approved on 17 April 2000. It does
not apply to those who committed crimes against
humanity, serious violations of human rights and
war crimes.
Under its
transitional provisions, the new Constitution
also gave the
Asamblea Nacional, National Assembly, the
power to enact legislation including: a basic
law on states of emergency; a reform of the
Penal Code in order to allow enforced
disappearance to be incorporated as a criminal
offence; a law on the punishment of torture; a
basic law on refugees and asylum-seekers and a
basic law on Indigenous Peoples.
General elections
were held on 30 July 2000. Hugo Chávez was re-elected
as President of the Republic.
Amnesty
International welcomes the significant advances
made to bring Venezuela's legislation into line
with international human rights standards.
However, Amnesty International remains concerned
about past human rights violations. The vast
majority of such violations have still not been
adequately investigated, the victims have not
received proper redress and the perpetrators
have gone unpunished. The coming to power of a
new government and the adoption of a new
constitutional framework does not exonerate the
State from carrying out, in accordance with
international human rights standards, its
obligations to investigate past human rights
violations, to bring those believed to be
responsible to trial, to impose appropriate
penalties on anyone found guilty of such
offences, and to provide proper redress to the
victims.
In addition,
Amnesty International remains seriously
concerned about apparent recent extrajudicial
executions, "disappearances" and torture and ill-treatment
by the State security forces, as well as prison
conditions and the
refoulement of refugees. The
organization is also concerned at the lack of
adequate constitutional protection for the right
of conscientious objection to military service.
2. The
right to life
Article 58 of the
1961 Constitution, like article 43 of the 1999
Constitution, declared the right to life to be
an ''inviolable right''. In recent years,
however, Amnesty International has received
dozens of reports of people dying at the hands
of the security forces in circumstances
suggesting that they were the victims of
extrajudicial executions.
The police heads
the statistics of those responsible for possible
extrajudicial executions, but responsibility was
also attributed to the army in several instances.
Such incidents have hardly ever been
exhaustively investigated and only in a very few
cases have those responsible been brought to
trial.
In March 1997,
Rubén
Darío González was arbitrarily detained
by members of the
Dirección de
Inteligencia Militar (DIM), Military Intelligence
Directorate, in Barcelona, Anzoátegui state.
Rubén Darío González was forced into a vehicle
where he was shot in the head by members of DIM
in front of several witnesses, including members
of his family. The DIM members claimed that they
had caught Rubén Darío González committing an
offence. However, this explanation was refuted
by witnesses.
In May of the same
year,
Erick Jean Lucena, aged 16, was
arbitrarily detained in Caracas by members of
the
Policía Metropolitana, Metropolitan Police.
Police officers brutally beat Erick Jean Lucena
and then shot him at point-blank range.
According to reports received by Amnesty
International, the Police had confused Erick
Jean Lucena with a suspected criminal. Several
witnesses prevented the police from planting a
firearm in the victim's clothing. Amnesty
International has received no reports that those
responsible for the death of Erick Jean Lucena
had been brought to justice.
During 1998,
Amnesty International also received information
that the security forces killed dozens of people
in circumstances suggesting excessive use of
force. In July 1998, in the municipality of
Sucre, Miranda state, agents of the
Policía Municipal, Municipal Police,
reportedly shot dead
Freddy Díaz. They fired at Freddy
Díaz after pursuing 14-year-old Ali Eduardo Sojo,
a cousin of the victim, into the family home.
Relatives of the victim and witnesses to the
incident have reportedly been threatened by
police officers in an attempt to discourage them
from denouncing the case.
In 1999 there was a
reduction in the number of people killed as a
result of action by members of the police and
armed forces. However, at least 100 people - the
majority suspected of criminal offences- were
reported to have been killed by security forces,
of which approximately 50 died in circumstances
suggesting that they were the victims of
extrajudicial executions.
On 14 June 1999,
John
Alejandro Linares Peña was the victim of a
possible extrajudicial execution at the hands of
agents of the Metropolitan Police in Caracas.
The officers had gone to the home of the Linares
family. Upon seeing them, John Alejandro Linares
fled. The police chased after him and he gave
himself up and was taken into custody. One of
the officers apparently shot him in the stomach
before he was taken away in a police car. At
that time, although wounded, John Alejandro
Linares was reportedly still alive. His body was
later found at the
Hospital Periférico
de Catia,
Catia Hospital, with six bullet wounds.
According to
reports received by Amnesty International,
between 19 and 27 December 1999, when rescue
operations were being carried out following
flooding that devastated Vargas state, a number
of human rights violations, including
extrajudicial execution, torture, ill -treatment
and "disappearances", were said to have been
carried out by personnel belonging to the
Dirección de
Servicios de Inteligencia y Prevención (DISIP), Directorate of
Intelligence and Prevention Services, and
members of the Armed Forces. The Attorney
General's Office and the Ombudsman's Office
opened investigations into the allegations. To
date, Amnesty International does not know of
anybody having been brought to justice for these
abuses.
Between January and
July 2000, Amnesty International received
further reports of apparent extrajudicial
executions. The number of killings involving
members of the police and armed forces, has
increased in relation to the first six months of
1999.
On 8 April 2000,
Donis Ramírez was outside his home in the Nuevo
Horizonte district of the capital, Caracas.
Whilst talking to
Geralt García, five officers of the
Policía
Metropolitana,
Metropolitan Police,
approached them and one of the policemen fired
his gun in the air. Geralt García ran away, and
as he ran, Donis Ramírez
saw the police open
fire, hitting him in the back. The police caught
up with Geralt García in Araguaney street and
shot him in the head several times, killing him.
People living nearby heard the shots and looked
out of their windows. When the police saw that
they were being watched they opened fire,
fatally wounding
Guillermina del
Carmen Colmenares. Donis Ramírez was
threatened that if he complained about the
shootings, they would kill him as well.
2.1 "Disappearances"
In December 1999,
in the context of the rescue operations carried
out following the Vargas' flooding, Amnesty
International received information regarding
possible "disappearances".
On 21 December
1999, a group soldiers belonging to
Infantería
Paracaidistas, Parachute Regimen
arrived, at 2.00 pm, at
Oscar José Romero
Blanco's
home in the neighbourhood of Valle del Pino. The
victim was reportedly beaten and detained by the
soldiers. Then, at around 5.00 pm, DISIP forces
arrived at his home. Oscar José Romero Blanco
was then transferred into DISIP custody who took
him to an unknown destination.
Also on 21 December
at about 1.00 pm,
Marco Antonio
Monasterio Pérez was arrested by the army
at his home in Valle del Pino, in the presence
of relatives and neighbours. They took him to an
unknown location. According to an official
communication from the Military High Command,
Marco Antonio Monasterio Pérez was also handed
over to the DISIP.
José Francisco
Rivas Fernández, from the neighbourhood
of Las Tucanas, was detained on 21 December at
about 7.30 pm, by the army under the command of
a sergeant, minutes after a curfew had come into
force. According to witnesses he was also beaten
by seven soldiers and taken away to an unknown
destination. He had been sitting at the front
door of a house used by the local branch of the
political party, Acción Democrática, Democratic Action,
where his family had taken shelter. The next day
his parents were informed by the sergeant that
he had been transferred into DISIP custody.
Roberto Javier
Hernández Paz, from the neighbourhood
of Tarigua, was detained at about 7.30 pm, on 23
December at his uncle's home by unidentified
agents. The agents arrived in a yellow jeep
which was identified by witnesses as a DISIP
vehicle. The victim was reportedly shot by one
of the agents before being driven away to an
unknown destination. The DISIP has denied this
accusation.
The fate of these
four people has not been clarified by the
authorities. To date, no perpetrator has been
brought to justice charged with their "disappearances".
3. The
right to personal integrity
Although article 46
of Venezuela's 1999 Constitution (article 60.3
of the 1961 Constitution) prohibits torture as
well as cruel, inhuman or degrading treatment,
it is not categorized as an offence in the
Venezuelan Penal Code. Acts amounting to torture
can be prosecuted either as ''injury to the
person'' or under article 182 of the Penal Code.
However, these legal definitions do not allow
for the punishment of torture as defined in
article 1 of the UN Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment
or Punishment. This means that several types of
act which amount to torture are still not
punishable under current Venezuelan legislation.
Information has
been gathered by Amnesty International over a
period of several years indicating that the use
of torture and ill-treatment is widespread. The
relevant authorities have not yet implemented
effective measures designed to halt the practice
of torture. Except in a few isolated cases,
members of State security bodies implicated in
acts of torture or ill-treatment have not been
subjected to investigation and criminal
prosecution.
Amnesty
International has received numerous reports of
cases in which people, often detained
arbitrarily, claim to be victims of torture and/or
ill-treatment.
According to
reports received by Amnesty International, in
many cases torture has been used as a means of
political repression. For example, on 8 March
1997, at about 11 o'clock at night
Félix Faría Arias, a university student
and member of the group
Bandera Roja, Red Flag, a legal
political opposition party, was seized in Baruta,
near Caracas by people who identified themselves
as members of DISIP. Félix Faría Arias was
handcuffed and forced to get into a car where he
was placed on the floor and beaten repeatedly.
As the car was driven around the city of
Caracas, Félix Faría Arias was reportedly
tortured by his abductors who beat him
continually and held a gun in his mouth while
questioning him about his political activities.
He was also blindfolded while his assailants
burnt his arms with a hot cylindrical object,
leaving more than 40 wounds on his forearm. At
2.00 am he was thrown out of the vehicle and
left on the street. On 9 March, Félix Faría
Arias lodged a complaint about what had happened
with the
Fiscalía General, Attorney-General's
Office. On 7 October 1997, Félix Faría Arias was
again abducted, by hooded individuals near the
National University in Caracas and pushed into a
vehicle similar to the one used in his previous
abduction. Once inside, the university student
was handcuffed, hooded and interrogated. His
assailants beat him around the head with the
butts of their guns and burned his arms, more
than 46 times, with the same sort of cylindrical
instrument used in the March attack. His captors
threatened to kill Félix next time they caught
him and they also questioned him about his
report on what had happened on 8 March. Members
of the DISIP had reportedly detained Félix Faría
Arias on previous occasions in relation to his
political activities. Furthermore, he was one of
the witnesses to the killing of university
student Belinda Alvarez, who was killed at the
University of Caracas on 3 April 1991 by members
of the security forces. Félix Faría Arias was
wounded in the same incident.
Wilfredo
Alvarado,
chairman of the
Asociación
Pro-Vivienda de Brisas del Turbio 1, Brisas del Turbio 1
Pro-Housing Association, and a well-known
community activist, was arbitrarily detained on
16 July 1997 in the city of Barquisimeto, Lara
state, by members of the
Guardia Nacional, National Guard. He was
taken to a police station in the same street and
he was held in a cell for half an hour before
being transferred to the National Guard post in
the zone of Lomas de León. Here, he was taken to
a sports field where members of the National
Guard reportedly chained him to a pipe and tied
his hands. He was then hung upside down and kept
hanging in this position until mid-day on 17
July. During that time he was tortured with
electric shocks to the hands, beaten on the back
and other parts of the body, and subjected to a
mock execution. He was not told at any point why
he had been detained. That same day he was
transferred to Lara State police station in
Barquisimeto where he remained until 22 July. A
complaint against members of the National Guard
responsible for the arrest and torture of
Wilfredo Alvarado was opened. He continued
receiving death threats in an attempt to deter
him from pursuing the case. Amnesty
International has received no reports that those
responsible for the torture of Wilfredo Alvarado
had been brought to justice.
Juan Bautista
Moreno,
a human rights defender working with the
Comité para la
Defensa de los Derechos Humanos, Committee for the
Defence of Human Rights, was arbitrarily
detained in the municipality of Páez, Apure
state, on 19 October 1998, by members of the
Venezuelan Armed Forces. Juan Bautista Moreno
was taken to the military barracks at
Guasdualito, Apure state. There, a senior army
officer accused Juan Bautista Moreno of
belonging to a Colombian armed opposition group
and threatened several times to '' disappear''
him. After being held for eight hours, Juan
Bautista Moreno was released. Months later,
between 27 and 29 January 1999, nine people,
among them Juan Bautista Moreno, were detained
by members of the police, armed forces and DISIP.
All nine, including
Asdrúbal Lozada,
Wilfredo Bracho, Santiago Díaz, Morli Ratia and
Claudio Rivas Espinosa (a minor) were taken to
the military headquarters in Guasdualito, Apure
state, where they were reportedly tortured. Some
were severely beaten and verbally abused. Others
were given electrical shocks and were
asphyxiated with a plastic bag. They were all
released some days later.
José Asdrúbal
Ríos Rojas was a alleged victim of
torture and other ill-treatment at the hands of
police officers. José Asdrúbal witnessed a raid
by the Metropolitan Police on a house of one of
his neighbours in the neighbourhood of Isaías
Medina Angarita in the city of Caracas on 17 May
1999. Upon realizing that he was a possible
complainant, the police officers reportedly beat
him up in front of his wife and children. Later,
one of the police officers who identified
themselves as being members of the
Brigada Motorizada
''Antonio José de Sucre'', ''Antonio José de
Sucre'' Mobile Brigade, detained José Asdrúbal
Ríos Rojas and took him away handcuffed to the
local police station where he was again beaten.
After his release, José Asdrúbal Ríos Rojas
lodged a complaint about what had happened with
the Department of Internal Affairs of the
Metropolitan Police. While there, he was able to
identify two of the officers who tortured him
from photographs held on file there. While in
custody and for some time after he was released,
José Asdrúbal and his family received threats as
a result of having reported the police officers
concerned to the relevant authorities.
In response to an
Amnesty International's communication regarding
this case, the Venezuelan authorities stated in
August 1999 that the Metropolitan Police had
conducted an investigation into the complaints
filed by José Asdrúbal Ríos Rojas. The police
claimed that an internal investigation had
established that the officers who carried out
the detention had acted according to normal
procedures and in compliance with the law.
However, Amnesty International believes that an
independent investigation should be carried out
by the Public Ministry.
The December 1999
Constitution, in its fourth transitional
provision, authorized the National Assembly to
pass, within a year of being set up, legislation
''on the punishment of torture, either by means
of a special law or reform of the Penal Code''(1).
4.
Refugees
As stated by the UN
Committee on Human Rights(2), the right of
refugees not to be forcibly returned to their
country of origin , the guarantee of
non refoulement,
implicit
in article 7 of the International Covenant on
Civil and Political Rights, is not duly
protected under Venezuelan law. Although the
laws of Venezuela make provision for special
procedures to be followed in cases of
extradition, neither the 1972
Código de
Enjuiciamiento Criminal, Code of Criminal
Procedure, nor the new
Código Orgánico
Procesal Penal, Basic Code of Criminal
Procedures, in force since 1 July 1999, include
any provisions relating to the guarantee of
non
refoulement.
Cecilia Rosana
Núñez Chipana, a Peruvian citizen, was
detained in Caracas on 16 February 1998 by the
DISIP. On 26 February the Peruvian authorities
asked the Venezuelan authorities for her
extradition because Cecilia Núñez Chipana was
the subject of criminal proceedings for offences
''against public tranquillity and terrorism
against the Peruvian State'' and for her alleged
membership of the illegal organization
''Sendero
Luminoso'', ''Shining Path''.
Cecilia Núñez Chipana denied to the Venezuelan
authorities that she had, or had had, any
connection with the organization, but told them
that she was a member of the
''Movimiento de la
Izquierda Unida'', ''Movement of the
United Left'', a legal organization in Peru.
On 27 February
1998, Cecilia Rosana Núñez Chipana verbally
requested political asylum from an official on
duty that day at the DISIP offices. Later she
tried to send a written application for asylum
to the Minister of Internal Affairs but this
possibility was repeatedly denied her by police
officials who prevented her from signing the
request. Only on 24 March (35 days after her
detention), when she was taken to the
Tribunal 37 Penal
de Primera Instancia, 37th Criminal Court of
the First Instance, in the Metropolitan Area of
Caracas, to make a statement, was she able to
request asylum and/or refuge from the
Juez de Despacho, Duty Judge. Eventually,
that same day she was able to make a written
request for asylum which was presented by her
lawyers to the
Ministro del
Interior,
Minister of Interior.
Lawyers
representing Cecilia Rosana Núñez Chipana
submitted a communication to the UN Committee
against Torture citing possible violation of
article 3 of the Torture Convention if the
extradition went ahead and requesting that steps
be taken for her extradition to be stopped. The
communication was endorsed by the Committee
against Torture under reference number 110/1998
and the Committee against Torture requested the
Venezuelan authorities not to expel or extradite
Cecilia Rosana Núñez Chipana, pending a
resolution by the Committee of her case.
However, the
extradition procedures continued, the request
from the Committee against Torture was
disregarded, and on 3 July 1998 Cecilia Rosana
Núñez Chipana was extradited to Peru. There were
numerous anomalies in the extradition process,
including violation of the right to defence and
the principle of due process. The legal
representatives of Cecilia Rosana Núñez Chipana
were initially refused a copy of the Supreme
Court of Justice decision authorizing the
extradition to go ahead. The extradition was
carried out without notifying the relatives or
lawyers of Cecilia Rosana Núñez Chipana. It took
place four days before the Supreme Court of
Justice had ruled on an appeal for legal
protection lodged by the lawyers of Cecilia
Rosana Núñez Chipana. On 10 November 1998, the
Committee against Torture ruled that the State
of Venezuela was in breach of its obligation
under article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment not to extradite Cecilia
Rosana Núñez Chipana(3).
During the month of
June 1999, about
3,700 Colombians, including women and
children, who, fearing for their lives and
physical safety, fled from the violence arising
from the armed conflict in the Catatumbo region
of Colombia, crossed the Colombia-Venezuela
border into the Venezuelan state of Zulia in
search of protection and security. They entered
Venezuela in four distinct waves: the first
group of 2,135 people arrived in Casigua El
Cubo, in the parish of Jesús María, Zulia state,
on 2 June; the second group of 610 reached ''La
Vaquera'' on the banks of the Oro river in the
municipality of José María Semprum in the same
state, on 5 June. The third group of about 300
people crossed the border between 13 and 16 June
and the fourth, consisting of about 700 people,
crossed from Colombia into the area of ''La
Vaquera'' on 29 June.
A few days after
entering Venezuelan territory, the first group
of Colombian refugees returned to their country
of origin, apparently voluntarily. About 500 of
the 610 people who made up the second group also
reportedly returned to Colombia on a voluntary
basis. However, the remaining members of the
group (numbering about 100) were apparently
returned against their will after expressing the
wish to request asylum in Venezuela and after
having asked non-governmental human rights
organizations in Venezuela for assistance in
doing so. The approximately 1,000 people who
made up the third and fourth groups of refugees
were also returned to Colombia. According to
numerous independent sources, appropriate asylum
procedures were not followed in order to
adequately assess the situation of any of the
3,700 Colombians fleeing the violence in their
country.
On 10 June 1999,
Amnesty International received reports that 100
of the 610 people in the second group of
refugees wished to formally request asylum in
Venezuela; the 610 people were at that time in
La Vaquera, El Cedro and El Portón, all areas
within the municipality of Jesús María Semprum,
Zulia state, and were on the point of being
transferred by launch to Casigua El Cubo,
Venezuela, along a river which forms a natural
frontier with Colombia. Subsequently, on 13 or
14 June the 610 people, including the 100 who
had expressed the wish to remain in Venezuela,
were returned to Colombia. In fact, they were
all returned despite the fact that fighting was
still going on between the Colombian Armed
Forces and armed opposition groups from that
country and that paramilitary groups were still
present in the region from which they had fled.
Their return had apparently been agreed between
the Colombian and Venezuelan authorities without
the participation or cooperation of the United
Nations High Commissioner for Refugees (UNHCR),
whose representatives were reportedly prevented
from carrying out their mandate of evaluating
whether the refugees were in need of
international protection.
On 24 June, Amnesty
International received reports that the third
group of about 300 Colombian refugees had been
returned to Colombia between 13 and 16 June,
immediately after they had entered Venezuela.
Venezuelan Army General Rafael Vethencourt had
reportedly told the national press on 22 and 23
June that, despite what non-governmental human
rights organizations might have to say, the
Venezuelan State was not in a position to grant
the Colombians any kind of special treatment or
status. The General said that ''we are returning
them [the Colombian refugees] by canoe, which is
how they arrived, to the place from where they
entered''(4). A few days later, Amnesty
International received reports that, as a result
of a decision by the Venezuelan authorities, the
fourth group of 700 people was on the point of
being returned.
Although the
Venezuelan Government denied in several
communications to Amnesty International that it
has failed to comply with its international
obligations, Amnesty International believes that
the return of these Colombian refugees to their
country of origin constituted a serious breach
of the principle of
non refoulement, which is a fundamental
norm of international customary law and
guaranteed under article 7 of the International
Covenant on Civil and Political Rights. Amnesty
International reached this conclusion after
analysing the human rights situation which
currently exists in Colombia and the specific
circumstances from which the Colombian refugees
were fleeing, as well as statements from several
independent sources indicating that at no time
did the Venezuelan authorities implement
satisfactory asylum procedures in order to
determine whether any of the refugees concerned
were genuinely at risk.
Under the December
1999 Venezuelan Constitution, the right to
asylum and refuge is expressly protected.
Transitional provision No. 4 in the Constitution
authorizes the National Assembly to pass a basic
law on refugees and asylum-seekers. This is an
opportunity for the Venezuelan authorities to
ensure that the principle of
non refoulement is endowed with adequate
legal safeguards.
5.
Prison conditions
By the end of
January 2000, Venezuela had a prison population
of some 14,000 inmates(5). Of the total number
of prisoners, 44% had been sentenced and 56%
were waiting to be tried and/or sentenced(6).
Prison conditions
continue to be extremely harsh, often amounting
to cruel, inhuman or degrading treatment.
Endemic violence within the Venezuelan prison
system is an ongoing problem. Serious
overcrowding, appalling sanitary conditions,
inadequate food and insufficient provision of
medical care and rehabilitation programs are
still features of Venezuelan prisons and have
often been the cause of protests by inmates over
the last few years.
In March 1997, in
El Dorado Prison, in Bolivar state, prisoners
organized a peaceful protest against torture and
other human rights abuses carried out by prison
guards. In October of the same year, hundreds of
inmates at La Planta Prison in Caracas went on
hunger strike demanding an improvement in prison
conditions and an end to the systematic beatings
being inflicted on them by prison guards. In
November 1997, 16 prisoners died and another 32
were seriously injured in a fire which took
place at Sabaneta Prison, Maracaibo, Zulia
state, where there were serious overcrowding
problems. The inmates had previously asked for
improvements to the dreadful conditions in the
prison and pointed out the serious fire hazards
which later led to the tragedy. In April 1999,
135 prisoners in El Dorado Prison, notorious for
its degrading conditions of detention, cut
themselves with knives in a so-called ''blood
strike'' in protest at being transferred there
from other prisons.
The chronic
overcrowding which exists in many prisons and
the failure on the part of the authorities to
ensure the protection of those in their custody
are contributing to the problem. In August 1997,
29 people died and at least 10 were injured in
El Dorado Prison, Bolivar state, during a clash
between rival gangs. The authorities failed to
prevent the killings despite having been warned
by prisoners' relatives and local officials that
tensions were reaching crisis point. Another ten
prisoners died in a violent riot in El Dorado
Prison in December 1998. According to reports
received by Amnesty International, over 300
prisoners died violently and another 1,000 were
injured during 1998. In the majority of cases,
other detainees were responsible for the
violence. However, some deaths were the result
of attacks by prison guards. The number of
violent deaths rose to over 400 during 1999. In
addition, in January and February 2000, eight
prisoners were killed and over 40 injured in
three different prisons.
Hundreds of
prisoners have complained about ill-treatment by
prison guards and Ministry of Justice employees.
In March 1998, over 100 relatives of inmates at
Los Llanos Prison, Portuguesa state, held a
four-day protest calling for the sacking of the
local head of the
Guardia Nacional, National Guard, who was
said to be responsible for the ill-treatment of
prisoners.
In 1999, the former
government of President Hugo Chávez publicly
acknowledged the serious state of Venezuelan
prisons and said that his administration was
committed to solving the problem. The new
Código Orgánico
Procesal Penal, Basic Code of Criminal
Procedures, in force since 1 July 1999, allowed
for a significant reduction in overcrowding in
some prisons, as well as a reduction in the
numbers of people being held in preventive
detention. Despite these improvements, the
physical conditions and lack of basic services
faced by many prisoners continue to be poor.
Dozens of prisoners are reported to have died as
a result of deplorable sanitary conditions and
inadequate medical care. To that must be added
the endemic climate of violence which exists
inside the prisons and which Amnesty
International believes is in large measure due
to the persistent problems of overcrowding,
inmate-on-inmate and guards-on-inmate violence
and the corruption prevalent in many of the
penitentiary establishments.
The Venezuelan
Ministry of Justice has implemented a series of
measures which are hoped to bring about further
improvements in the future. The new Basic Code
of Criminal Procedures has sought to partially
remedy the administrative chaos facing the
Venezuelan prison system as well as delays in
the administration of justice. However, in
September 1999, several prison mutinies took
place in Yare I and Yare II Prisons, apparently
in protest at the failure to implement the
reforms enshrined in the Basic Code. During a
day of disturbances which ended with one
prisoner dead and another injured, the prisoners
managed to gain almost total control of the two
prisons.
In December 1999,
Amnesty International called on the Venezuelan
Government to fulfill the commitment it made to
improve prison conditions and to provide the
resources necessary to do so(7).
6.
Criminal Proceedings in Military Courts
The fact that
members of the military implicated in human
rights violations have been subject to the
jurisdiction of military courts has historically
been one of the factors contributing to impunity
in Venezuela. Amnesty International considers
that the military justice system has
systematically failed to ensure impartial
investigations and to bring perpetrators of
human rights violations to justice. The UN
Committee for Human Rights recommended in 1992
that Venezuela ''should see to it that all
members of the armed forces or the police who
have committed violations of the rights
guaranteed by the ICCPR are tried and punished
by civilian courts''.(8)
The 1999 Venezuelan
Constitution has introduced a ground-breaking
safeguard against impunity in its article 29
which states that ''human rights violations and
offences against humanity shall be investigated
and tried by ordinary courts'' (9). This
provision is reiterated and extended in article
261 of the Constitution which stipulates that
''common law offences, human rights violations
and crimes against humanity shall be prosecuted
by ordinary courts''(10). Furthermore, the sole
derogation clause contained in the Venezuelan
Constitution states that ''the legal system
shall remain in effect in all matters which do
not contradict this Constitution''(11).
By the end of July
2000 the 1967 Code of Military Justice had yet
to be amended to bring it into line with the new
constitutional provisions.
7.
Conscientious Objection
The 1999 Venezuelan
Constitution, in its article 61, guarantees the
right to freedom of conscience. Nevertheless,
the same clause goes on to impose restrictions
on this right.
''Article 61. Everyone has the right to freedom of conscience and to give expression to it except when, in doing so, the personality is affected and rituals which constitute an offence are carried out. Conscientious objection may not be invoked to avoid obeying laws or to prevent others from obeying them or from exercising their rights(12).''
In addition,
article 134 of the Constitution stipulates that
it is a ''duty to undertake any civilian or
military service which is necessary to defend,
preserve and develop the country, or to deal
with disasters affecting the general
public(13)".
The right to
conscientiously object to military service is
not guaranteed, as such, under the Constitution.
Although the Constitution refers to ''civilian
service'', so far Venezuelan legislation has not
provided for any type of civilian service which
replaces military service. Furthermore, the
current
Código de Justicia Militar, Code of Military
Justice, contains several provisions stating
that anyone who refuses to do military service
or tries to give it up shall be deemed to have
committed the offence of desertion and should be
punished. The right to object to military
service on grounds of conscience is therefore
not guaranteed within the Constitution.
The UN Human Rights
Committee, in its General Comment No. 22,
relating to article 18 of the International
Covenant on Civil and Political Rights, took the
view that ''the Covenant does not explicitly
refer to the right to conscientious objection
but the Committee believes that such a right can
be derived from article 18, in as much as the
obligation to use lethal force may seriously
conflict with the freedom of conscience and the
right to manifest one's religion or
belief''(14). In two decisions on individual
cases(15), as well as in its observations on
periodic reports submitted by States(16), the
Committee on Human Rights has reiterated that
conscientious objection is a right protected
under article 18 (1) of the International
Covenant on Civil and Political Rights.
8.
Amnesty International's recommendations to the
Government of Venezuela
' unresolved allegations
of human rights violations, in particular cases
of extrajudicial executions, torture and
"disappearances", be promptly, impartially and
effectively investigated by the civilian courts;
' agents of the state
implicated in human rights violations be
suspended from duty until their guilt or
innocence is established;
' agents of the state
responsible for extrajudicial executions,
"disappearances" and torture must be brought to
justice in accordance with international
standards for fair trial;
' those found responsible
for such serious human rights violations be not
reincorporated into the service of the state;
' the victims of human
rights violations or their relatives receive
appropriate reparation which complies with
standards and principles enshrined in
international human rights instruments,
including article 2.3 of the International
Covenant on Civil and Political Rights;
' the right to life and
personal integrity be guaranteed by:
1. incorporating into Venezuela's Penal Code the crimes of extrajudicial executions, enforced disappearances and torture in line with international human rights standards, together with the appropriate punishment that take into account the gravity of these offences;
2. derogating those norms on due obedience from the Penal Code(17) and the Basic Law of the Armed Forces(18), which are in contravention of articles 3 and 19 of UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, article VIII of Inter-American Convention on the Forced Disappearance of Persons and article 2.3 of UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
3. ensuring that the right to life, the right not to be "disappeared" and the right not to be tortured are fundamental human rights which may not be suspended in any circumstances;
' enable legislation to be
passed guaranteeing refugees and asylum-seekers
prompt and independent legal safeguards designed
to determine their situation and protect them
from being forcibly returned to their country of
origin if their lives or physical integrity is
at risk;
' introduce monitoring
procedures to prisons and detention centres to
guarantee respect for the integrity of
prisoners, in accordance the UN Basic Principles
for the Treatment of Prisoners and the UN Body
of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment;
' reform the 1967 Code of
Military Justice to ensure that members of the
armed forces or the police implicated in human
rights violations are tried and punished by
civilian courts;
' approve legislation
guaranteeing the right to conscientious
objection to military service and a fair
procedure be implemented to determine the right
to conscientious objection.
****
(1) Amnesty
International's translation.
(2) UN Committee on
Human Rights,
General Observation
20 - Article 7 (44th session, 1992), paragraph 9, Doc
HRI/GEN/1/Rev.3.
(3) UN Committee
against Torture, Communication No.
CAT/C/21/D/110/1998, jurisprudence dated 10
November 1998, paras. 6.4 and 7.
(4) Statements made
by Brigadier General Rafael Vethencourt to the
newspapers
Panorama, 22/6/99, p. 4-12, and
El
Nacional,
23/6/99, p. A-2, reproduced in a weekly
bulletin,
Provea: Derechos
humanos y coyuntura, Provea: Human Rights
and Current Affairs, 19-25 June 1999, published
by Provea, a Venezuelan human rights
non-governmental organization.
(5) Source:
Una Ventana a la
Libertad,
Window to freedom, Venezuelan non-governmental
organization working on prison conditions.
(6) Source:
Idem.
(7) Amnesty
International News Service: AMR 53/16/99
(8)
Observations of the
UN Committee on Human Rights - Venezuela, Doc. CCPR/C/79/Add.13,
28 December 1992, para. 10.
(9) Amnesty
International's translation.
(10) Idem
(11) Idem
(12) Amnesty
International's translation: "Todas las personas tienen
derecho a la libertad de conciencia y a
manifestarla salvo que su práctica afecte la
personalidad y ejecuten rituales que constituyan
delito. La objeción de conciencia no puede
invocarse para eludir el cumplimiento de las
leyes o impedir a otros su cumplimiento o el
ejercicio de sus derechos".
(13) Amnesty
International's translation.
(14) UN Committee
on Human Rights,
CCPR General
Observation Nº 22.30/07/93 - Article 18 (48th
session, 1993), para 11, in Doc.
HRI/GEN/Rev.3, p.44.
(15) UN Committee
on Human Rights, Communications Nº 446/1991
(para. 4.2) and 483/1991 (para. 4.2).
16) UN Committee on
Human Rights,
Final Observations
of the Human Rights Committee - France, Doc. CCPR/C/79/Add.80,
4 August 1997, para. 19, and
Final Observations
of the Human Rights Committee - Spain, Doc. CCPR/C/79/Add.61,
3 April 1996, para. 15.
(17) Penal Code,
article 65.2: (not punishable) "Those who act by
virtue of due and legitimate obedience. In this
case, if the action performed constitutes an
offence or an error, the corresponding
punishment will be imposed on the one who gave
the illegal order".
(No es punible) "El
que obra en virtud de obediencia legítima y
debida. En este caso, si el hecho ejecutado
constituye delito o falta, la pena
correspondiente se le impondrá al que resultare
haber dado la orden ilegal".
(18) Basic Law of
the Armed Forces, article 22: "For improper
orders, the subordinate after obeying will have
the means to complain before the immediate
superior of the one who gave the order".
" Para las
órdenes abusivas, quedará al subalterno después
de obedecer, el recurso de queja ante el
inmediato superior de aquel que dio la orden".