NEW VENEZUELAN CONSTITUTION REFLECTS LATEST DEVELOPMENTS IN INTERNATIONAL HUMAN RIGHTS LAW, COMMITTEE TOLD

Human Rights Committee

1899^th Meeting (PM)

NEW VENEZUELAN CONSTITUTION REFLECTS LATEST DEVELOPMENTS

IN INTERNATIONAL HUMAN RIGHTS LAW, COMMITTEE TOLD

Respect for human rights had been enshrined in Venezuela’s new Constitution, that country’s representative told the Human Rights Committee this afternoon as it began its consideration of the third periodic report of Venezuela on compliance with the International Covenant on Civil and Political Rights.  

The new Constitution, which had been adopted in 1999, contained provisions that brought it into line with the latest developments in international human rights law, he said.  One of its fundamental principles was the guarantee of the provisions of the international human rights mechanisms to which Venezuela adhered.  The country was working to deepen and generalize implementation of the aspects of the Constitution governing human rights, so that all citizens would feel secure that any violation of their rights would be investigated.

Responsibilities and penalties for violations of human rights had also been established, he said.  Those included civil and criminal liability for the civil servants responsible for violations, as well as for those who had ordered them.  His country recognized the ethnic diversity, customs, habits and languages of indigenous people, as well as their rights to original lands.  It saw those rights as inalienable.

Addressing written questions put to the Government by the Committee, another member of Venezuela’s delegation said the Constitution had created the Office of Ombudsman.  That Office was a national body comprising part of the system to watch over rights and guarantees enshrined in the new Constitution.  The principles governing the Office were that it was free, speedy and accessible.  The Office worked through mediation and conciliation.

During the question and answer session that followed, experts acknowledged the work undertaken by the delegation and praised the efforts undertaken with regard to enshrining human rights in the new Constitution.  At the same time, concern was expressed regarding delays in submission of the report and accompanying documentation.  Clarification was sought by experts regarding, among other things, de facto application of the Constitution’s human rights provisions, the role of the military in the country’s judicial system, the right of free association, the right of workers to form unions, prison reform, and the application of extra-judicial punishment

The Committee will meet again tomorrow morning at 10 a.m. to continue its consideration of Venezuela’s report.

Background

The Human Rights Committee met this afternoon to begin its consideration of the third periodic report of Venezuela (document CCPR/C/VEN/98/3) on its compliance with the International Covenant on Civil and Political Rights.  Under article 40 of the Covenant, all States parties agree to submit periodic reports on the implementation of the agreement.

Regarding article 2 of the Covenant (equality before the law and courts), the report states that on 1 July 1999 the new Code of Criminal Procedure would enter into force.  That code contained a number of important changes such as abolishment of closed hearings and assistance of counsel for the accused from the outset.  The fundamental principle of the reform was the abandonment of the inquisitorial in favour of the accusatorial system in which there is, among other things, no connection between the role of the prosecutor and the role of the decision maker, and the possibility of jury trial is available.

In compliance with article 3 (equal rights of men and women), the report notes that Venezuela is a party to the Convention on the Elimination of All Forms of Discrimination against Women.  There is equality in marriage, and reform of the 1990 Labour Act included special measures to achieve equality between men and women in labour relations.  The Equal Opportunities for Women Act, promulgated in September 1993, was to guarantee women the full exercise of their rights and to create the Autonomous Institute for Women.  That act also envisaged the creation of a national office for the protection of women’s rights.  However, imbalances persist, despite all the legislative, administrative and other measures introduced.

The Act approving the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women was promulgated in 1995.  Following the ratification of that Convention, the Bicameral Commission on Women of the Venezuelan Parliament drafted a bill on violence against women and the family and submitted it for consideration and study to the Bureau of the Congress in 1996.

Article 4 of the Covenant provides that in time of officially proclaimed public emergency, States parties may derogate from their obligations.  Venezuela, on which political events in February and November 1992 and some other local instances have imposed such periods of restriction, has provided for such situations in several articles of its Constitution.  Both in its Constitution and in practice, Venezuela acknowledges that international human rights rules constitute a list of minimum guarantees.

With regard to articles 6, 7, 9 and 14, covering the right to life, liberty and security of person, and to a fair trial with due safeguards, the report states that Venezuela abolished the death penalty in 1864.  There have been some cases of extrajudicial execution during the period covered by the report, attributable mainly to the police.  When possible, cases have been investigated by the authorities and tried by the courts, and the guilty parties have been sentenced.  The State has been responding to requests for information from the Special Rapporteur of the Commission on Human Rights on extrajudicial, summary or arbitrary executions, as well as carrying out his recommendations.

Article 60 of the Constitution states that “No one may be held incommunicado or subjected to torture”.  It is a guarantee which may not be restricted or suspended even in case of emergency.  The Special Rapporteur of the Commission on Human Rights on torture had visited Venezuela in 1996 and had made a number or recommendations.  The State has been doing everything possible to carry out those recommendations in full, according to the report.  Venezuela is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The report states that despite legal provisions, the police make unjustified arrests fairly frequently.  Efforts are being made to educate and instruct the police forces to put an end to that practice.  The new Code of Criminal Procedure, which entered into force in 1999, established reasonable time limits within which a person must be sentenced or finally acquitted.  In 1995, the prison population consisted of 74 per cent people awaiting trial and 26 per cent serving sentences.

According to the report, the right of all the country’s inhabitants to equality before any authority, including the courts and tribunals of justice, is established in the Constitution.  The law provides for free justice.  Venezuela’s legislation, with respect to the guarantee of public hearings in court, is fully in line with the provisions of article 14 of the Covenant.

The presumption of innocence is one of the guiding principles of Venezuela’s criminal system, according to the report.  That principle, however, is still frequently violated by the police.  A series of legal provisions has been adopted in an attempt to solve the serious problem of the law’s delays.

Regarding the right to privacy (article 17), the Venezuelan Constitution states that correspondence in all its forms is inviolable.  The exercise of the right not to be subjected to arbitrary or unlawful interference in private matters encounters its main obstacle in the advance of modern techniques.  To address problems, Venezuela promulgated the Protection of Privacy Act in 1991.  It defines offences and establishes penalties of imprisonment for violations.  The act also establishes exceptions and special procedures to facilitate investigations carried out by the security agencies of the State.

According to that law, the police authorities may obstruct, interrupt, intercept or record communications solely for the purposes of the investigation of offences against the security and independence of the State, offences specified in the Public Heritage Protection Act, offences specified in the Narcotic Drugs and Psychotropic Substances Act, and offences of kidnapping and extortion.

Regarding the right of freedom of expression (article 19 of the Covenant), the report states that that right, as envisaged in the law and realized in practice, covers the following points in Venezuela:  the right freely to express one’s thoughts, including the right to be free from interference on account of one’s opinions, and to have access to information; the right to use any means of dissemination for these purposes; and the prohibition of prior censorship.

According to the report, every possible means of communication is available and operates in Venezuela without any arbitrary limitations.  The communications world has complete freedom.  The State merely establishes the minimum controls needed to ensure respect for the rights of others and for the public interest.  The Constitution establishes the right of freedom of expression, but it prohibits propaganda for war and statements which offend public morals or incite disobedience of the law.

Article 23 and 24 of the Covenant cover protection of families, which, according to the report, is established in the Constitution and in other laws.  The Ministry of the Family has a number of standing programmes:  protection, promotion and support of breastfeeding; prevention of early pregnancies; care for pregnant adolescents; family counselling and sex-advice centres in various parts of the country; and multi-purpose and day-care centres.  The Ministry also prepares local plans for providing services for children.  It discharges itself of those duties directly and through its affiliated agencies.

Venezuela is a party to the Convention on the Rights of the Child, and its provisions have been incorporated in current domestic positive law.  The ratification of the Convention had the effect of incorporating in Venezuelan legislation a ban on independent work by minors. 

The report notes that, despite several arrangements, Venezuela has a large number of children without documents, leading to an increasing number of children without identification who run the risk of not being able to exercise their basic rights to education, health and social security.  The situation encourages bad habits and irregular procedures and the emergence of corruption and encourages the crime of trafficking in children.

Regarding article 26 of the Covenant, the report states that the equality of all persons before the law and the right to the protection of the law without any discrimination have been gradually won in Venezuela.  The Constitution stipulates that "discrimination based on race, sex, creed or social status shall not be permitted".

According to the report, equality before the law and the exercise of human rights by all citizens are not merely legal mandates in Venezuela.  Egalitarian sentiments have penetrated deep into the social and political culture of its citizens.  There are no discriminatory practices of any kind based on race, religion or national origin, and there is a clear rejection of disparagement of or discrimination against other persons or groups.  However, recent years have seen the emergence of some popular feelings of mistrust and rejection of foreigners present in the country illegally.

In compliance with article 27, covering the rights of people belonging to minorities, the report states that the only minorities in Venezuela are the indigenous groups living in the country’s territory, particularly in forest and frontier regions.  The rules on the treatment of indigenous minorities have the purpose of integrating and protecting them.  The basic premise is that members of indigenous groups are entitled to their own specific culture and identity under the Constitution.

Environmental protection standards and legislation also contain specific provisions on the indigenous population, according to the report.  Venezuela has approved the Amazon Cooperation Treaty of May 1980.

Presentation of Report

Jose Rafael Avendano Timaury (Venezuela) said he represented a modern State that was attempting to establish well-being for its citizens through social justice.  Power could be effective and efficient only when State systems were based on the rule of law.  The Government knew that some stumbling blocks would have to be overcome.  A new Constitution had been established, which enshrined respect for human rights.  He was grateful for the efforts being made by the United Nations to monitor the various human rights mechanisms.

The third periodic report was particularly important for his country, he said.  At a time of change in his country, guaranteeing human rights was a fundamental political objective for his Government.  Universal, indivisible guarantees of human rights were an intrinsic part of the State’s conception of itself.

The new Constitution contained provisions that brought it into line with the latest developments in international human rights law, he said.  One of its fundamental principles was the guarantee of the provisions of the international human rights mechanisms to which Venezuela adhered.  The country was working to deepen and generalize the implementation of the provisions governing human rights so that all citizens would feel secure that any violation of their rights would be investigated. 

Responsibilities and penalties for violations of human rights had also been established, he continued, including civil and criminal liabilities of civil servants responsible for those violations, as well of those who ordered them.  The Constitution had established that any individual might request compensation for error and delay in the judicial work.  The Criminal Code of 1999 specifically had set up the rights of victims. 

He noted that violence in prisons had been reduced significantly, because the situations which gave rise to those actions had been addressed.  Despite progress made, however, a lot of work still had to be done.  The President had taken a special interest in the solution of the problems.  Corrective measures had been implemented, such as training personnel and creating a division responsible for prison inspections.  That body also investigated complaints should any officials be accused of irregularities. 

The right to personal integrity had been broadened to psychological and moral integrity, he said.  Any detainee had the right to communicate with lawyers and family.  Detainees arrested in flagrante delicto had to appear before a judge within 48 hours.  Detainees had the right to research the evidence.  The right of habeas corpus was guaranteed, even in a state of emergencies.  Laws on emergency situations were under discussion.

As to the rights of indigenous communities, he said his country, recognizing ethnic diversity and respect for customs, habits and languages of indigenous people, as well as rights to original lands, saw those rights as inalienable.  Indigenous languages were declared official in the areas where they were spoken.  Indigenous people had the right to participate in the political life of the State.  They also had the right, among other things, to access to health, education, and access to markets. 

Progress had been made in recognizing equality, he said regarding the equality of women, as the Constitution was drafted with gender issues in mind.  The equal right to work, pay and social security had been addressed.

Venezuela based its life on all international legal instruments regarding human rights.  It had given consent to visits of the Organization to determine on-site the situation of human rights in the country.  Venezuela had maintained active participation in international forums such as the Commission on Human Rights.  His country attempted to work together more closely and communicate with non-governmental organization as well.

Responses to Questions Posed by Committee

PRAFULLACHANDRA NATWARLAL BHAGWATI of India, Committee Chairman, informed the representative of Venezuela that because the delegation’s documentation had not been translated into French and English, it would be necessary to go into greater detail in the oral responses posed by the Committee.

Mr. AVENDANO (Venezuela) said that in the country’s new Constitution of 1999, a special hierarchy had been given to human rights, which was a priority for the Government.  A high number of laws related to human rights had been included in the new Constitution, he noted, and it was ensured that all such rights would be protected.

In articles 30 and 31 of the Constitution it was stipulated that violations of human rights by authorities would be investigated and penalized, and that recourse could be made to international human rights mechanisms, he continued.  The rights of vulnerable groups and prison reform were also provided for.  The jurisdiction of military courts was restricted and a national system of ombudsmen had been set up.  A priority was also placed on education and information regarding human rights.  Various institutions had been set up to create a respect for and knowledge of extant human rights. 

Regarding discrimination, understood in its broadest sense, the Constitution established the principle of equality before the law, he said.  Sex, race, creed and social condition could not be the basis for discrimination.

Article 45 prohibited the forced disappearance of persons -– something not included in the previous Constitution, he noted.  Article 54 expressly prohibited slavery, servitude or trafficking in persons.  Although the Constitution did not expressly refer to extrajudicial executions, article 43, among others, did make an important reference to that question.  Article 20, he noted, said that the State must investigate and penalize crimes committed by its authorities.

The rights of children and teenagers, as set out in the international mechanisms adhered to by Venezuela, were also guaranteed, he said, as were the right to work and equality between men and women, he said. 

The Constitution had created the Office of Ombudsman, he said.  That Office was a national body, part of the system to watch over rights and guarantees enshrined in the new Constitution.  The principles governing the Office were that it was free, speedy, and accessible.  The Office worked through mediation and conciliation, he noted, going on to give an overview of the modalities and hierarchies governing the Office at the local, regional and national levels.

Regarding a question about the National Human Rights Commission, he said that it had been established based on the human rights instruments ratified by Venezuela. It was comprised of representatives of various ministries -– defence, labour and justice, among them -– as well as non-governmental organization (NGO) representatives.

Regarding a question about the independence of the judiciary, he said the authority to create justice arose from the citizens.  The Constitution guaranteed the full independence of the judicial branch.  As for the ranking of the Covenant in the domestic legal system, he referred the Committee to article 23 of the Constitution, which stated that instruments of international human rights ratified by Venezuela were directly implemented by courts and bodies of the State.  The Constitution was the highest basis for the legal order. 

Concerning the state of emergency, he said that at present the provisions governing emergency situations were established in the Constitution in article 203.  As for the law on torture, he said that during the first year of the mandate of the Assembly no law had been adopted, but that the legal framework was covered in article 46 of the Constitution, as well as in articles of the Criminal Code.  The law on protection of children and adolescents had provisions in that regard as well.

GERMAN SALTRON (Venezuela) said that a point neglected until the establishment of the new Constitution was the rehabilitation of victims of torture.  The Constitution provided guarantees of assistance to such victims.  Venezuela had approved the Inter-American Convention on the Forced Disappearances of Persons.  The treaty reaffirmed solidarity based on respect for basic rights. 

Remedies for violations of victims’ rights were included in the criminal procedural code, he said.  Venezuela was a party to the American Convention on Human Rights and its article 63 had been incorporated in the Constitution, so that remedies would be provided for and just compensation paid to the victim. 

He said that article 46 established that every person had the right to respect for his physical and psychological well-being.  Any victim of torture or cruel treatment was entitled to rehabilitation.  Public officials involved in or aware of such crimes were also penalized.  No member of the police forces could implement or tolerate any act of cruel or unusual punishment.  When police officials had reason to believe that an official had been involved in an act of torture or unusual punishment, superiors must be informed.

The Ombudsman Office was competent to receive citizens’ complaints on the subject.  The number of officials of the investigative offices was, however, insufficient for the large number of complaints.

The new Code of Criminal Procedure significantly reduced the length of investigation during criminal proceedings.  It was based on, among other things, principles of legality and due process, publicity, immediacy and citizen participation.  Principles of presumption of innocence, quality of defence and constitutionality had been established as well.  Regarding another question, he said the Constitution addressed due process and the right to a trial, in harmony with article 14 of the Covenant.  Due process was constituted and defined by a collection of guarantees for the protection of citizens. 

Regarding a question about the prison situation, he said that situation had been made a priority by the President.  The Government was building six new prisons, with participation of the private sector, and had proposed a restructuring of all penitentiary centres of the country, including special areas for prisoners from 18 to 21 years, as well as training centres.  There had been a reduction of violence in prisons during the last three months of last year.  Community treatment centres had been established.  It consisted of an open regime where prisoners worked during the day and returned to a centre to sleep as part of rehabilitation.

The law on the protection of the child, in force since April 2000, and developed according to provisions in the Convention on the Rights of the Child, gave details of the criminal system relating to adolescents.  

Question and Answer Session

An expert said he recognized and admired the ongoing work undertaken by Venezuela to promote peace in the region and worldwide.  The country had spoken out in favour of democratic institutions when others in the region had turned their back on such institutions.  He was aware of the undertaking of the President regarding human rights.  At the same time, not all the provisions of the new Constitution had been translated into practical and effective measures.

He then asked for clarifications regarding the military and the country’s judicial system, the right of free association, the right of workers to form unions and extrajudicial powers.  On the last point, he asked how many members of the armed forces in recent years had been brought to justice for extrajudicial killings or forced disappearances.  He also asked for clarification with regard to the prohibition of torture and prison reform.

Another expert said that Venezuela was changing -- there were profound changes under way and that transition should be encouraged.  He would like, however, a better understanding of the difficulties involved in the transition.  With regard to extrajudicial executions and forced disappearances, he asked for more detailed information about incidents over the last three years.

He had taken note of the interest expressed by Venezuela about the condition of its prisons.  He asked for more precise information on practical measures taken to deal with abuses within the system.  He said the power of financial resources, not available to everyone, could interfere with justice, and wondered if such interference had occurred in Venezuela.  He also asked for more information on the condition of children in difficult circumstances, including child prostitution.  He asked if any Venezuelans had been banished from their country in the past few years and for more information relating to the immunity of public officials. 

Another expert said he was impressed by the more than 16,000 complaints already filed with the Ombudsman.  He wondered, however, what happened in the private sector, for instance regarding disabled or indigenous people, since the Ombudsman worked in the public sector.  He also asked if the Ombudsman had jurisdiction over prisoners and whether the activities of the armed forces were covered by the Ombudsman.  He also noted that the Ombudsman had already been replaced, although his term was for seven years, and asked for the reasons for that replacement.

One expert noted that there had been delays in submitting periodic reports on the part of Venezuela.  He commended Venezuela on the new Constitution and its fundamental protection of human rights, which was a model not only in the region, but also internationally.  He had identified, however, some matters of concern.  Although the Constitution recognized asylum and refuge, the principle of non-refoulement was not recognized.  What was the status of prohibition against expulsion to a country where the person risked inhuman treatment?  He also wondered whether the police and border guards had had sufficient training in that regard.

Regarding emergency situations, he said the new Constitution seemed to have some improvements, but he remained concerned that the several kinds of exceptions mentioned in the Constitution were all addressing situations that “threatened the life of the nation”. 

Another expert commented on the lateness of the submission of Venezuela’s reports in the past.   He noted, however, the contribution of Venezuela to the work of the Committee and to the promulgation of human rights worldwide. 

He asked for further clarification on the issue of enabling legislation.  He also noted that the Committee had reliable information that at the end of last year some 132 persons had sought refuge or asylum in Venezuela -- 34 from Colombia.  Of those, 27 had decided to voluntarily return to Colombia.  The rest had wanted to stay but were returned against their will.  Venezuela was party to the Convention on Refugees and its Protocol, he pointed out.  He asked if there was an extradition arrangement with Colombia and what the content of the agreement was.  He also sought further information concerning the situation of trade unions and military courts.

An expert said he realized that after the report was submitted to the Committee, many new developments had taken place, but still the third report covered a large period of time and so he would refer back to the report.  The report openly admitted to some serious flaws in implementation of the Covenant, but did not say how the flaws could be addressed.  He had had the feeling, in reading the report, that there was an attitude of resignation.  He hoped that attitude had changed with the advent of the new Government. 

He asked for more information on the system for protecting human rights.  Were there any acts of State organs that could not be reviewed by a court? he asked.  Had the provisions of the Covenant been directly invoked before State bodies? he asked.  He asked for more information with regard to a change in the security forces.  He also asked for information regarding the role of political police in Venezuela within the context of law enforcement in the country.

At which moment could an arrested person contact his or her counsel, family or medical doctor? he asked.  He also sought clarification on provisions governing freedom of expression. 

Another expert asked for information on the National Committee on Human Rights -- she wished to know exactly what its status was.  She then asked about the powers of the President with regard to enabling legislation and its effect on human rights.  Had the President actually used those powers?  She also asked why there were still crimes that allowed military courts to get involved.  There did not seem to be much progress with regard to cases of disappearance and police abuse, including torture, she noted, seeking further clarification on several aspects related to the question of torture.

She asked how many prisoners were awaiting trial and what percentage of the prison population had not yet been declared guilty.  The composition of the branch of citizens’ power -- the Ombudsman’s Office, the Public Prosecutor’s Office and the Controller’s Office -- seemed a little strange to her, and she requested further clarification on the subject.  She had noted that the Ombudsman’s Office had received many complaints, but only 20 related to torture.  Why was that the case?  Addressing torture was not included among the Ombudsman’s stated priorities, she noted.  Why was that?

An expert wanted more information about conforming the Code of Criminal Procedures to the Constitution and how provisions such as access to lawyers and family worked in practice.  She also asked in what cases persons would have to be held in custody and how the presumption of innocence was applied in practice.

Another expert noted that there had been a reduction in allegations of torture in Venezuela.  He asked for more information on the issue and about the legal consequences and the legal process of the crime of torture.  Regarding the Ombudsman, he asked what legal proceedings were taking place and what kind of compensation claims were brought with what degree of success. 

He also asked for details of the role of the United Nations High Commissioner for Refugees (UNHCR) in the area of asylum seekers and refugees and what kind of access it had to persons who might be in a position to seek asylum.

Another expert stressed that late reporting was a clear violation of the Covenant.  He said it undermined the whole system and was a failure by States to appreciate their responsibility.  The Committee should pay more attention to that.

He also emphasized that the principle of non-refoulement was designed to protect the individual.  It was incumbent on States to re-examine their system of extradition treaties and take responsibility for what happened to individuals sent to another country.  The State was responsible for what other countries did as a result of expulsion.

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