Human Rights Committee

Seventy-first Session

1900^th Meeting (AM)

CRIMINAL JUSTICE PRACTICES, TREATMENT OF FORCED DISAPPEARANCES AND TORTURE

DISCUSSED AS HUMAN RIGHTS COMMITTEE CONSIDERS VENEZUELA’S REPORT

The delegation of Venezuela this morning continued responding to questions posed to it by expert members of the Human Rights Committee on its third periodic report on compliance with the International Covenant on Civil and Political Rights.

During the meeting, the delegation addressed questions on the principle of progressiveness, military jurisdiction, the emergence of judicial power, the association of judges, extrajudicial and summary executions, torture, child prostitution, the right of asylum, the ombudsman, the state of emergency, the period of detention, presidential decrees, the decisions of military courts, freedom of expression, and the National Commission on Human Rights.  Answers were also given on the situation of women, marriage, children and indigenous peoples.

Venezuela’s Constitution addressed the matter of forced disappearances and stated that those crimes must be punished and that public servants were not to obey orders that violated those laws, a member of the delegation said.  The forced disappearance of persons, no matter who carried it out, was illegal.  The question of torture was also addressed by the Constitution, as well as by the new criminal code.  Provisions were given not only for the physical, but also the psychological consequences of torture.

Factors which prevented women from enjoying their rights on an equal footing had to do with the historical and domestic situation in Venezuela, as well as poverty and women’s low level of access to employment, experts were told.  As part of measures to address the situation, the Ombudsman’s Office for Women’s Rights had been established.  It was a legal body to insure that women’s rights were respected and aimed to remove any restrictions and bias based on gender.

During the question and answer session experts stressed that more emphasis should have been placed on giving an account of the actual implementation of human rights laws and provisions in Venezuela.  They sought further information on, among other things, judicial reform, questions relating to refugees, the holding of referendums, military jurisdiction over civilians, the relationship between government and the Catholic religion.

The Committee will meet again at 3 p.m. this afternoon, when it will conclude its consideration of the report and will consider its draft general comment on article 4 of the Covenant.

Background

The Human Rights Committee met this morning to continue its consideration of the third periodic report of Venezuela’s compliance with the International Covenant on Civil and Political Rights (document CCPR/C/VEN/98/3).  The Committee began its consideration yesterday afternoon.  Under article 40 of the Covenant, all States parties agree to submit periodic reports on the implementation of the agreement.  (For further background on the report, see Press Release HR/CT/592 of 19 March.)

On 15 March, the United Nations received the relevant documents of ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, from Bosnia and Herzegovina.  That State will be the forty-fifth State party to the Second Optional Protocol.  (For more background information on that issue, see Press Release HR/CT/590 of 19 March.)

Response to Questions

JOSE RAFAEL AVENDANO, Director of Internal Politics, Department of Internal Affairs and Justice of Venezuela, addressing questions asked yesterday by Committee experts, said those questions referred to, among other things:  the principle of progressiveness; military jurisdiction; the emergence of judicial power; the association of judges; extrajudicial and summary executions; torture; child prostitution; the right of asylum; the ombudsman; the state of emergency; the period of detention; presidential decrees; the decisions of military courts; freedom of expression; and the National Commission on Human Rights.

HILLYS LOPEZ DE PENSO, Vice-Public Prosecutor of Venezuela, then proceeded to address individual questions.  She said articles 22 and 23 of the Constitution described the hierarchy of Constitution and international treaties and covenants with regard to human rights.  The crimes against human rights were listed, but that list was not exhaustive.

Regarding a question about military jurisdiction, she said the Constitution established the prevalence of ordinary jurisdiction over military jurisdiction regarding common crimes and human rights violations.  Military jurisdiction only addressed military crimes.  Restrictions on associations of judges applied only to matters of national security.  Any person or association could go before the Supreme Court to appeal for a revision or interpretation of the law.

Article 45 of the Constitution addressed the matter of forced disappearances and stated that those crimes must be punished and that public servants were not to obey orders that violated those laws.  The forced disappearance of persons, no matter who carried it out, was illegal.  Article 45 of the Constitution said that extradjudicial executions should be severely punished.  On 15 March, seven officials from the police were accused of the crime of second degree murder.  Torture was addressed by article 46 of the Constitution and also by the new Criminal Code.  Provisions were given not only for the physical, but also the psychological consequences of torture.

The presumption of innocence was established in the Constitution, as was due process, she said.  Nobody was prejudged before public oral hearing, according to the Criminal Code.  Anybody accused of a crime was presumed innocent until proper sentencing had taken place.  Under the previous system, an inquiry procedure was based on one judge, who handled the inquiry based on a secret process.  Detention was the rule, and guilt was presumed until innocence was proven.  In the new Criminal Procedure Code of 1999, a prosecutorial system was set up.  Prosecution and defence were in an adversarial situation and judges were arbiters.  The principal of the free evaluation of evidence and citizen participation applied and freedom was the rule, detention the exception.

Responding to another question, she said that when an accused person was detained, the rule was that he or she was free except for the cases explained earlier.  The detained person had the right of access to a lawyer, to pay bail, to have access to family members and to a doctor’s care upon request.  According to article 114 of the Criminal Procedure Code, the police authority must provide respectful treatment and tell family where the accused person was detained.  Sometimes that could involve the Ombudsman.

She responded to another question by saying that article 34 of the Criminal Procedure Code provided that accused persons and victims could agree to payment if assets were available and if the accused was convicted.  Sometimes, if the accused did not meet the requirement, the legal proceedings would have to begin again.  But, the case ended if the requirement was met fully over.

Regarding compensation to victims or their heirs, she responded to another question by saying that article 30 of the Venezuela Constitution stated that fair compensation should be provided to cover physical and moral damages as determined by legal proceedings.  On 27 and 28 February, the State had compensated a victim's family member.  Under article 115 of the Criminal Procedure Code, compensation to a victim was subject to legal procedures and the Prosecutor was responsible for ensuring the victim's rights.

GERMAN SALTRON, Director of the Ombudsman Office of Venezuela, said the Office was an independent body with broad powers established in articles 280-283 of the Constitution.  The Ombudsman’s Office had broad powers to investigate any case, including the military. 

The first Ombudsman had been appointed provisionally, but was replaced after the Constitution had been adopted and a first Ombudsman was duly elected.  The National Commission on Human Rights was established under a national decree.  Once the new Constitution had been approved, the Ombudsman’s Office was then established and the National Commission on Human Rights ended.

The Ombudsman institution had 540 officials, with representations in each of the states.  The Office was not only responsible for complaints about human rights violations, but also for the smooth running of public offices such as health and transportation.  Complaints referred to the functioning of public institutions.  Statistics for the year 2000 indicated that there were more than 16,000 complaints.  They did not all refer to violations of human rights.  The majority referred to labour disputes and improper functioning of public offices.  That was why the report referred only to 20 cases of torture. 

He said the judiciary had suffered from widespread corruption among judges.  The new Constitution, therefore, reformed the judiciary.  Certain judges were dismissed, with guarantees for due process for judges.  Some suspended judges were returned to their posts.  New judges were chosen through a public examination process with participation of citizens.  That process was under way.

He pointed out that the National Assembly in some cases had the power to transfer drafting bills to the executive branch.  They may then become decrees.  If a decree violated the Constitution, anybody could go to the court to ask that it be overturned.

He said that article 58 of the Constitution guaranteed freedom of expression and recognized the right of citizens to accurate and impartial information without censorship.  The article placed an ethical obligation on journalists to provide truthful, accurate and impartial information.  There was complete freedom of expression in the country, he stressed.

On the question of citizen’s power, he said the Constitution provided for a classical division of powers -- executive, legislative and judicial.  There was also the electoral power and the citizen’s power.  The citizen’s branch related to prevention and sanction of administrative and moral matters.  It was made up of the Ombudsman’s Office, the Public Prosecutor and the Auditor’s Office.  The relevant draft law governing those powers was currently being discussed.  Like any moral body dealing with ethical matters, it would have ethical sanctions and would also deal with matters relating to public officials. 

On trade union referendums, he said the Constitution provided for holding referendums as a method of guaranteeing citizens’ participation.  The majority of trade unions in the country had leaders who had been in their jobs for more than 30 years without elections.  The National Assembly had therefore called for a referendum so that the officials could be elected.  That had given rise to various complaints, but there was a decision of the Supreme Court that said the referendum was not in violation of the Constitution.  Measures had been taken, and it was hoped that the problem would soon be solved.

A decree issued by the President could not violate a constitutional principle, he said.  The decree must be temporary and there must be exceptional circumstances for it to be issued in the first place.  Such decrees were subject to supervision by the Parliament and the Supreme Court, both of which could withdraw them at any time. 

Any citizen could go before the appropriate international bodies to present petitions to avail themselves of their human rights, he said.  As the Committee could see, the Constitution provided many ways to guarantee human rights.

He said the Interior Ministry had a general directorate for human rights, which focused on preserving all laws in defence of such rights.  The Defence Ministry also had such directorate. 

MILAGROS BETANCOURT, Director of Multilateral Affairs of Venezuela, answered questions on asylum and return policy.  The policy of asylum was addressed in article 69 of the Constitution, which did not cover the principle of non-return.  However, Venezuela was part of the Protocol on Refugees and the policy of non-return was addressed in article 23 of the Constitution.  As a lot of Colombians came into the country in 1999, Venezuela had taken measures to comply with the Protocol on Refugees.  At the moment, Venezuela did not have specific legislation, but despite the gap in legislation, it had fulfilled its international obligations.

Asylum requests from Colombians were addressed bilaterally.  An ad-hoc committee had been looking at asylum applications.  Venezuela planned to formalize the ad-hoc committee so that indication could be given to the United Nations High Commissioner for Refugees (UNHCR) that the procedure for dealing with those applications was under way.  The UNHCR had been involved constantly in the process.

Regarding extradition, she said there were multilateral and bilateral agreements.  Venezuela was also part of the International American Commission of 1981, to which Colombia was not party.  She said that expatriation of citizens was prohibited under the Constitution.

Questions from Experts

An expert asked for further clarification on military jurisdiction over civilians, as apparently certain parts of the military code applied to civilians.  She also asked how many people were in prison who had not yet been declared guilty or brought to trial. She also asked if judicial reorganization was ongoing and for further information on the question of freedom of association.  Could members of the Supreme Court be subject to article 72 and be removed from their posts by referendum?

A country that sent an individual to another country had a responsibility to seek guarantees of their safety, an expert said.  A number of countries would not, for example, extradite people to countries where they might be subject to capital punishment.

Where was pre-trial detention served? another expert asked.  How long were detainees in police stations?  How long could they be in the hands of the police before they had access to a lawyer.  On allegations of torture, he asked for precise details on related criminal investigations and follow-up.  On the issue of asylum seekers, he asked for an assurance that the UNHCR had access to the frontier regions.

An expert asked for further clarification on the principle of progressivity and human rights, as expressed in the Constitution.  He also asked for information regarding the association of judges among themselves. 

An expert said she was interested in the new Criminal Procedure Code and would like to see it in writing, if possible.  She also sought clarification on the modalities of pre-trial detention.

Answers to Questions

Mr. AVENDANO (Venezuela), answering questions asked by experts, said the number of judges replaced was not available yet, but would be given to the Committee after the meeting.  Figures on the number of prisoners would be sent to the Committee as soon as possible.

Military justice was an outdated term in Venezuela.  There was a contradiction under the new Constitution and the old military justice code, obsolete but still in existence.  Whenever that code was invoked, and was in conflict with the Constitution, there were competent mechanisms in place to ratify that articles of the code were not constitutional.  The rule that the Constitution took precedence was an absolute one.  A new military code was being drafted.

The reorganization of the judiciary was still under way, he said.  There were disciplinary proceedings in which judges were investigated and disciplinary actions had been taken.  Those proceedings took “an awfully long time”, due to the fact that the Government wanted to avoid any cavalier treatment that could undermine the process.  Due process had been respected, and in some cases judges, not proven guilty, had been returned to their posts.

Regarding a question about the referendum, he said that if the President, or any popularly elected official in mid-term, became involved in irregularities and the people felt his or her term should expire, the legal framework provided for the possibility of holding a referendum to recall that person.  The Supreme Court was not elected through popular elections, but by the National Assembly.  If any of the magistrates were to become involved in questionable conduct, the National Assembly could address that matter on the basis of a qualified vote.  That was common procedure in other countries as well.

Ms. LOPEZ DE PENSO, (Venezuela), said there were two procedures for detentions.  One was when a crime had just been committed.  In such cases, once a person was detained, it must be reported to the Public Prosecutor within 24 hours so that the person could be brought before a judge.  The process must be completed within 20 days.

Another procedure, she said, concerned cases where there was a danger that a person might abscond or could in some way create obstacles to the proceedings underway.  In such cases, the presiding judge made a decision on what to do and where a person should be remanded.  The site of detention depended on the situation.  Currently there was a case involving a Colombian citizen -- the Prosecutor had asked for a judicial warrant because there was danger that the person might abscond.  The State security apparatus had held him.

She said the Prosecutor’s office played the lead role in investigations into torture.  The Criminal Procedure Code was applied in such cases.  There was not yet a specific index of cases of torture -- statistics would be sent to the Committee in due course.

She said the Prosecutor’s office had created a directorate for fundamental rights to verify cases where public officials violated human rights.  The office was extremely zealous in making sure that its accusations were accurate so that good precedents could set.

On the question of progressivity, she said that as principles to establish human dignity were established, they were taken on board into domestic institutions.  She stressed that article 23 of the Constitution was vital with regard to the question.  If an offence against human rights was not covered by the Constitution or by an international treaty, then the courts must nevertheless hear the complaint and apply the appropriate sanctions.

An expert said she wished to have information on secret detention.

Under the new criminal code of procedure being held incommunicado was extremely rare, Ms. Lopez de Penso (Venezuela) said.  The Prosecutor’s office had investigators who followed criminal proceedings daily and monitored all aspects of cases and related detention.  The office was not aware of any current cases of people being held incommunicado.  Criminal proceedings were also supervised by judges, she noted.  Judges must notify the Prosecutor’s office so that it could monitor the health of detainees.  The office acted quickly to move people if they were in danger.

Mr. SALTRON (Venezuela) said the Ombudsman’s Office, under its mandate of protection of human rights, had to go to places where human rights were violated, and there were regular visits to detention centres and prisons.  The Office was also organizing courses, because police officers and prison wardens should know that there were rights they had to respect and that they could not act arbitrarily.

Ms. BETANCOURT (Venezuela), addressing questions about asylum and repatriation, said the country of origin had the primary responsibility to protect its citizens.  In cases of repatriation, there had to be a guarantee of country of origin that individuals would be protected and that the person could return to society.  Under a bilateral mechanism, there would be a prior determination that the person would return voluntarily and would be safe. 

Regarding extradition, she said the Constitution determined that no crime could be subject to the death penalty or a sentence of over 30 years.  Repatriation had been voluntary in the case of a high numbers of Colombians entering Venezuela in 1999, and the UNHCR had been involved in that situation, in cooperation with the Prosecutor's office.  Some of those people had sought asylum and decisions on their application was still pending. 

Answers to Written Questions

Answering written questions put to Venezuela by the Committee, Mr. AVENDANO (Venezuela) said that factors which prevented women from enjoying their rights on an equal footing had to do with the historical and domestic situation, as well as poverty and women’s low level of access to employment. For the first half of 1999 the percentage of women in the work force had increased.

The Ombudsman’s Office for Women’s Rights had been established.  It was a legal body to insure that women’s rights were respected.  It aimed to remove any restrictions and bias based on gender.  He would provide further information and statistical data.  There was a new provision in the labour law, published in 1999, that stipulated that discrimination on gender would include sexual harassment based on a situation of superiority.

Out of 165 members of Parliament, 16 were women, he said.  The Vice-President of the country was a woman, and there were five women ministers in the Presidential Cabinet. 

On the powers of courts with regard to domestic violence, he said the State had a mechanism to control and prevent violence against women in the family.  This also provided for treatment of victims.

He said that personal violence and damage was covered in the Criminal Code. On training for police in cases of rape, he noted that there was a pilot programme to deal with family violence being developed by the National Women’s Institute.

He said that under the Civil Code of Venezuela, women could marry at the age of 14, men at the age of 16.  Limitations on marriage and acquiring nationality were in line with the Covenant.

He said that the organic law for protection of the child had come into force.  Protection for boys and girls and young people against any form of exploitation was guaranteed.  He went on to outline other initiatives to protect children and young people.  The law also dealt with protection in the workplace.

Education and health were rights established in the Constitution, he said.  The Ministry of Culture and Sport had set standards for enrolling children and young people lacking identity documents.

There were no specific measures to protect adults of the same sex in consensual relationships in view of possible discrimination.

He then set out the various guarantees in place to protect the rights of indigenous people in Venezuela, which related to land use, health and education, and access to the judicial system, among other things.  The Prosecutor’s office was under obligation to remain objective and do what it could to ensure that indigenous persons were accompanied by interpreters in case of complaints, he said.

He said human rights were included in the curriculum from elementary school onwards, and various measures were in place to raise awareness.  The Government had also set up human rights programmes for social workers, police, persons working in detention centres and others.

Questions from Experts

An expert said he was puzzled and even shocked by the information provided regarding aspects of the life of women.  He sought further information regarding the low age of marriage for women, as well as the minimum age for consensual sexual relations.  He asked how articles 120 and 123 of the Constitution had been applied with regard to the use of lands occupied by indigenous peoples.  He then asked for further elaboration on constitutional rights of indigenous peoples.

Another expert said that a problem encountered during the exchange was that emphasis had been placed on legal provisions and not on how things actually worked.  On equal opportunity for women, she noted that there was a lack of child-care services in Venezuela.  Support for parents, not for women, should be emphasized.  What was Venezuela doing to address the problem of women working two or three shifts, then going home and taking care of the family? she asked.

What measures were in place to prevent violence against women? she asked.  There could not be different penalties depending on the circumstances of the victim -- that was out of line with the Covenant, she stressed.  She sought further clarification with regard to situations of rape and marriage.  In light of the progressive nature of the Constitution, she had been surprised that there were provisions related to marriage that had not been changed.  What full and free consent could be given by a child of 14, especially when she had been raped? she asked. 

What was the magnitude of the problem of children without identity papers and what was being done to solve it? she asked.  She also wished to know how children were being protected in cases of recruitment to guerilla causes.  Did the crime of sodomy still exist in Venezuela and was there any general law to protect homosexuals?

The next expert supported the previous comments on the lack of information on de facto actions in the country.  He sought clarification on the problem of trafficking in women.  There were many cases of trafficking of women into Venezuela from Colombia for the purposes of prostitution.  What actions were being taken to address the problem? he asked.  He also asked for more information on the question of trafficking in children -- the answer given had addressed the laws in place but not their implementation.  He also asked about sexual harassment in the workplace.  What measures had been taken to ensure that women who complained were not victimized for having done so?

He also sought information about abortion and the consequences of a system that prohibited it.  He asked what was being done to protect the health and lives of women who had abortions in cases where it was not protected by the law.  Was a woman who had been raped entitled to an abortion under Venezuelan law? he asked.

Another expert asked for more information on the overall picture of women in the economy, as well as their place in the hierarchy.  He also asked for more details regarding the situation of indigenous people, such as results of bilingual education.  He remarked that bilingual education and education in indigenous languages were not the same.

One expert said the factual information provided was interesting but fell far short of what was needed.  He would like more information on the unequal treatment of men and women in adultery, as well as the relationship between the State and the Catholic religion and the status of other religions.  He asked what legally established types of worship were, and whether religions had to be registered.  He also asked about protection of the spirituality of indigenous people and recognition of conscientious objectors.

Another expert had questions about the equality of religions as well.  He mentioned a special State subsidy to the Catholic religion.  The Constitution said religion had to be subject to supreme inspection of the executive branch.  He would like more information about that.

The last expert reiterated the importance of the practical implication of laws on human rights.  The Assembly still had to adopt laws regarding the state of emergency, responsibilities for the Ombudsman’s Office and the definition of the status of immigrants and refugees.  He asked for additional information regarding the Government’s criteria for presenting the draft legislation.

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