The Inter-American Court of Human Rights (hereinafter, IACtHR) published a recent decision (only available in Spanish) in the San Miguel Sosa and others vs. Venezuela case, by means of which it rebuts frequent arguments relied on by the Chavista[d1] –i.e. based on the ideas of former president Hugo Chávez— regime of Nicolás Maduro that label external and foreign criticism against its policies, frequently seen as abusive against political dissidents and others as contrary to human rights, as forms of intervention in its domestic affairs. This post translates relevant excerpts of the judgment on merits and reparations, and introduces some observations on the right to political participation under the American Convention on Human Rights.
The case was about the termination of contracts of persons who worked with the state of Venezuela soon after they participated in an initiative that sought to call for the celebration of a referendum on the termination of the mandate of then-president Hugo Chávez (para. 1). The list of those who signed in support of the referendum had been transmitted by the National Election Council (Consejo Nacional Electoral) to a ‘chavista’ member of parliament, Tascón (para. 131). Several state agents had told the applicants that the termination of their contract was the result of their disloyalty (paras. 137-139). While the defendant state argued that the contracts were terminated in order to lower costs and personnel (para. 140), the Court considered that this was not demonstrated. In this sense, it argued that the mere invocation of “convenience or reorganization, without providing more explanations” made the state arguments seem weak and lack precision “in relation to motivation”, supporting the “strength of circumstantial evidence” about actions that were actually meant to target lawful political and legitimate opposition action of some persons. Thus, the IACtHR concluded that there was a “reprisal against them for having legitimately exercised a political right enshrined in the Constitution, i.e. signing their support of the call for a referendum on the revocation of presidential mandate. The Court added, hence, that “the termination of the contracts was a “deviation of power” (para. 150), which exists when “there is a motivation or purpose that differs from that of a norm that confers powers to a state authority, [case in which it can be demonstrated that] the action can be regarded as an arbitrary one” (para. 121).
It is interesting to note that the Inter-American Commission on Human Rights had stated that the state of Venezuela’s assertion that the alleged victims had to fully demonstrate a nexus between an alleged discriminatory treatment and the authorities’ decisions would imply placing an excessive and absolute burden of proof on the applicants without the state having exhausted all the measures at its disposal to find out the truth, considering the complexity of the issue (para. 174). The Court, in turn, considered that while the termination of contracts was permitted by the legal system, it is possible to rebut a presumption that authorities acted in good faith (para. 122), as the Court found in this case based on circumstantial evidence (supra) flowing from evidence on the “Tascón list”, testimonies on conversations with state agents, statements of the president of Venezuela, and other elements that made the Court consider that “the termination of contracts took place in a context of high instability, political polarization and intolerance towards dissent, which could encourage forms of persecution or discrimination […] made possible by acts and declarations of members of the Executive and Legislative Powers, as well as of the competent electoral authority”, there having been no adequate state “precise and detailed explanation as to the motivation of its decision. In cases as the present one, the mere invocation of convenience or reorganization, without providing further explanations, is not sufficient, because the weakness of precisions as to motivation reinforces the likelihood of contrary circumstantial evidence […] Reason why the Court concluded that the termination of contracts was a form of deviation of power, which used [a] clause as a veil of legality to conceal the actual motivation or real purpose: a reprisal […] for having legitimately exercised a political right” (paras. 124-150).
For the Court, said abuse was inimical to the political rights enshrined in article 23 of the American Convention on Human Rights, which states:
“Article 23. Right to Participate in Government. 1. Every citizen shall enjoy the following rights and opportunities: a. to take part in the conduct of public affairs, directly or through freely chosen representatives; b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and c. to have access, under general conditions of equality, to the public service of his country. 2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings” (emphasis added).
The Court paid special attention to the “opportunities” and understood that it points to a state obligation to bring about conditions for the real opportunity of effectively exercising those rights without discrimination (para. 111). According to the Court, in the Inter-American system political rights are embedded in a context of “relationship between human rights, representative democracy and political rights”, as see in the Inter-American Democratic Charter (para. 114). In that regard, it is interesting to note how the Court mentioned that the “effective exercise of democracy in the American states is […] an international legal obligation and they have sovereignly consented to such an exercise no longer being regarded as being exclusively an issue under their domestic, internal or exclusive jurisdiction” (emphasis added, para. 114). These considerations are crucial, and rebut the falsa allegations of the “Chavista” regime that criticisms against their abuses against the opposition and the lack of an actual separation of powers in practice are contrary to the principle of non-intervention. Such principle, actually, protects the sphere of lawful decision-makingof states, and human rights violations can never be regarded as lawful. After all, as the International Court of Justice recently saidin the case of Equatorial Guinea v. France on Immunities and Criminal Proceedings, there are rules and principles that, while being distinct, are related to and derive from sovereignty, such as, in my opinion, non-intervention. However, as Georg Noltehas argued, sovereignty is about “the liberty of a state within the limits of international law”, and there is no freedom to contravene its human rights obligations and those under the OAS, including those on separation and independence of powers and democracy. Furthermore, as the articles on state responsibility(articles 40, 41 and 48) indicate, if peremptory law is seriously breached, third states are under an obligation to seek the peaceful cessation of the situation and to not recognize it; and if the abuse does not endanger peremptory law third states are still entitled to invoke the responsibility of those that breach erga omnesviolations, as human rights ones, insofar as states other than injured subjects are “entitled to invoke the responsibility of another State” in such events. In this regard, it is necessary to consider that the same Inter-American Court has declared the principle of equality and non-discrimination to be peremptory (see advisory opinions OC-18/03, paras. 100-101, and OC-24/17, para. 61).
It is my contention that, first, American states are authorized under international law to demand the cessation of Venezuelan wrongful acts against those under its jurisdiction and to repair them (art. 40 of the aforementioned articles on state responsibility). But what is more, given the systematic –and, one could say, gross— violations against political opponents and others in Venezuela, aware that this is controversial, I would also argue that they are under an obligation to do this and seek the peaceful end of such abuses and to not recognize as lawful the situation created by breaches of the sort being examined (art. 41 of the articles on state responsibility). Even if this is not accepted, at the very least there would be a moral, if not legal –which I still defend— obligation in this sense, considering the humanitarian tragedy befalling Venezuelans, as revealed by their mass exodus. In fact, to my mind, a recent Resolution adopted by the OAS on the Situation in Venezuela on 5 June 2018expressly refers to a human rights crisis and resolves, among others, to declare the recent electoral process in Venezuela as lacking “legitimacy, for not complying with international standards” –a form or manifestation of the duty of not recognizing a gross or systematic abuse, in my opinion—, apart from declaring an alteration of the constitutional order and urging accepting humanitarian aid and asking Venezuela to “take steps to guarantee the separation and independence of” powers. Being international actions of this sort peaceful, and having domestic action and guarantees failed, I find initiatives as this resolution and judgment legitimate expressions and institutional venues when states fail to carry out their responsibility to protect.
Moreover, the IACtHR also (to my mind, rightly) concluded that the Venezuelan action was discriminatory and affected the freedom of expression of the applicants “who signed the request of a referendum”, because a manifestation of their expression was restricted and the state action under examination had the “covert intention of silencing and discouraging political dissidence, since it was instrumentalized as a factor to set an example in the sense that persons who exercised that freedom were scared for having participated politically and were later illegitimately encouraged to recant or “repair” their signatures in the procedure created for that purpose by the National Election Council” (para. 158).
The Court also examined whether internal judicial action triggered Venezuelan responsibility on other grounds. The IACtHR analysed if the resolution of an amparo remedy presented by the applicants before domestic authorities was consistent with the standards of articles 8 –on due process guarantees— and 25 –on the right to judicial protection. The Court considered that Venezuelan judges also engaged the responsibility of their state because of the judges, in spite of having had the possibility and obligation of protecting the victims (para. 192), failed to do so as a result of their having rejected recordings and transcriptions of phone conversations with state agents on the basis of having regarded them as illicit. For the Court, deeming as illicit the only evidence that could “directly prove” (para. 195) the allegations of the applicants, without those judges having taken into account the public interest of the issue, affected their motivation and the bases of the resolution of the legal situation, thus affecting rights to justice and to an “effective judicial remedy of the alleged victims” (para. 196).
Lastly, as to the merits, it is worth taking into account the right to work. In spite of the Inter-American Commission on Human Rights not having raised arguments on it in its application, the alleged victims did invoke it in the different domestic and regional procedural stages, and the state did refer to those allegations (para. 216). For all these reasons, the Court argued that “the parties had the opportunity to express their positions in relation to the facts” around the arguments on the right to work. Hence, considering article 29 of the American Convention on Human Rights and the jura novit curiaprinciple, the Court concluded that it was competent to examine if such right was respected (para. 219), and concluded that the deviation of power it found entailed the use of a contractual clause “as a veil of legality to conceal the actual aim of” a measure of reprisal against the legitimate exercise of human rights (para. 221), which was contrary to the right to work, that “includes the state’s obligation of ensuring the rights of access to justice and effective judicial protection, both in the public and private spheres of labor relations” (paras. 221 and 222).
Concerning reparations, the Court ordered the condemned state to investigate and sanction those responsible for the deviation of power it declared (para. 232); to publish and circulate the findings of the Court and extracts of its decision, as it often requires (para. 233); and to reimburse reasonable litigation costs and expenses (para. 250). Having been the termination of contracts a central part of the discussion before the Court, it is interesting to note that the Court did not order the reinstatement of the applicants because it considered such measure as not appropriate in light of the circumstances of the case (paras. 237, 242), without further elaborating such conclusion –which may respond to the fact that others are carrying out the functions the applicants carried out, and further problems would be created or, perhaps, out of fear of further political retaliations if this had been ordered. This, of course, is pure speculation. Nevertheless, the Court said that while reinstatement would not be ordered, it ordered Venezuela to pay for damages, both compensating material harm in relation to the “reasonable and legitimate” expectation that the applicants had of keeping providing their services in the public administration (paras. 237-238), and also non-material harm, considering that the applicants suffered “anguish […] stigmatization and rejection”, and also “changes in […] family relations” (paras. 239-240). Lastly, it is worth mentioning that the Court failed to order Venezuela the adoption of legislative or administrative measures to prevent discrimination, in spite of its having found the “absence of guarantees for the free exercise of the right to political participation of those who requested the call for a referendum, and to protect them from pressure and possible reprisals”, because, according to the Court, the Commission and the applicants failed to clearly indicate what specific norms or practices ought to be regulated to achieve this. In spite of this, the Court did remind the defendants state that it is under an obligation to implement measures based on its duty to respect and ensure human rights (para. 246).
In my opinion, the decision in the Sosa case is significant, considering the tragedy faced by the Venezuelan people, who are massively fleeing from Venezuela, a situation that the Inter-American Commission on Human Rights addressed in a recent Resolution it issued. It supports the initiatives of the Lima Group, the European Union, Luis Almagro, Secretary General of the OAS, and others who have rightly criticized and taken action against the actions of the Venezuelan governmental regime seen as contrary to international law. Likely, the judgment being examined will be ignored or attacked in one of the usual tirades of president Maduro but it demonstrates that those who criticize it are in the right and must keep striving for a peaceful solution. Venezuela, it must be recalled, withdrew from the American Convention on Human Rights back in 2012, with such denunciation entering into effect on 10 September 2013, and thus permitting the Court to seize cases that were presented by petitions before the Inter-American Commission, such as the case under examination, presented to the Commission in 2006. The protection deficit for those who find no judicial protection domestically and will no longer be able to request it in the OAS regional system after that date is conspicuous and tragic in light of Venezuelan abuses against political dissidents and others, as those examined herein.