IACHR

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IACHR Takes Case involving Venezuela to the Inter-American Court

March 15, 2016

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) filed an application with the Inter-American Court of Human Rights in Case 12.923, Rocío San Miguel Sosa and others, regarding Venezuela.

The case concerns the arbitrary dismissal of Rocío San Miguel, Magally Chang Giron and Thais Coromoto Peña from their respective positions at public offices in the National Border Council, on March 12, 2004, after signing the call for the recall referendum of the presidential mandate of the former President Hugo Chávez Frías.

This political process took place in a context of significant polarization in which the President of the Republic at that time and other senior state officials made declarations, either at the time of the signature, or at the time of submitting them to the National Electoral Council, whose contents clearly show that they were forms of pressure not to sign, as well as threats of retaliation and even unfounded accusations directed to those who signed, calling them terrorists. Part of the context of the signatures and the dismissals had to do with the creation and publication of the so-called "Tascon list," which included people who signed in favor of holding a recall referendum. That list was commissioned by the President of the Republic himself to a national representative in order to "show the faces" of what was called an alleged "mega-fraud." Moreover, a process to “challenge” the signatures was also conducted and it was not simply intended to correct any possible fraudulent signatures and identities, but also included a general call to retract directed at people who had validly signed.

The file of the case includes the transcript of conversations of Rocío San Miguel Sosa with the Executive Secretary of the National Borders Council and with the legal consultant for the Vice-Presidency, where they explicitly recognize that the reason for the dismissal was the signing of the petition for the recall referendum. Of the 23 employees of the National Border Council, the only four people dismissed were those who signed the petition for the recall referendum, and of these four people, the only one who kept the job was precisely the one who objected his signature for the recall referendum. The case of Rocio San Miguel, Magally Chang Giron and Thais Coromoto Peña was not an isolated; there were multiple reports of dismissals in the public sector in retaliation to the signing in favor of holding a recall referendum.

The Commission considered that all the elements described are consistent between each other and allow the conviction that termination of Rocío San Miguel Sosa, Magally Chang Giron and Thais Coromoto Peña contracts, constituted an act of misuse of power in which a discretional faculty that existed in the contracts was used as a veil of legality for the true sanction motivation to punish the victims for the expression of their political opinion in favor of the recall referendum. The Commission determined that this implicit sanction constituted a violation of political rights, discrimination on political opinion and an indirect restriction on freedom of expression.

Finally, the Commission concluded that neither the constitutional action nor the criminal investigation, including the appeal against the dismissal, constituted effective remedies to examine the alleged misuse of power materialized in covert discrimination. The Commission also determined that this action was not resolved within a reasonable time.

In its Merits Report, the Commission recommended the State of Venezuela to reinstate victims to the civil service on a job similar to the one they would currently hold, had they not been separated from their posts. Should this not be the will of the victims or that there are objective reasons which prevent the reincorporation, the State must pay compensation for this. In addition, the State must provide adequate compensation to all the victims of this case, for the human rights violations declared in the IACHR report, both material and morally. The State must also carry out the corresponding criminal, administrative or other proceedings related to the human rights violations, in an impartial, effective and within a reasonable time manner, in order to fully clarify the facts and to establish the respective responsibilities. The IACHR also recommended Venezuela to adopt the necessary measures of non-repetition to prevent future occurrence of similar events. In particular, adopt legislative, administrative or other measures to prevent discrimination for political reasons. In this context, to ensure the existence of clear rules on access and use of data collected in electoral processes, with the necessary safeguards to ensure the free expression of political opinions without fear of reprisals. In addition, to carry out training programs for public officials at all levels on the prohibition of discrimination based on political opinion; and for legal practitioners called upon to hear any allegations of covert discrimination or misuse of power.

The Inter-American Commission submitted the case to the Court’s jurisdiction on March 8, 2016, because it found the State of Venezuela had not complied with the recommendations contained in the Merits Report. The Commission submitted the entirety of the facts in that report to the Court.

This case would allow the Inter-American Court to rule on the exercise of political rights and safeguards that must exist so that people can exercise and express their political opinions in the context of processes such as recall referendums, without fear of retaliations or discrimination based on political opinion and indirect restrictions on freedom of expression. It also provides an opportunity for the Inter-American Court to build up its jurisprudence on cases of misuse of power and to establish the criteria for the analysis and the relevance of contextual information and circumstantial evidence to establish the existence of covert unconventional motives in the exercise of public power. It will also allow the analysis of the dissemination of political ideas on the part of public official in light of the right to freedom of expression. Finally, the case will allow the Court to rule on the features that an action should have in order to respond adequately and effectively to allegations of covert discrimination and / or power misuse in the exercise of public power.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 036/16