Venezuela: Universal Periodic Review

Human Rights Watch

UPR Submission

Bolivarian Republic of Venezuela

March 2016[1]

I. Summary

The accumulation of power in the executive branch and erosion of human rights guarantees in Venezuela have enabled the government to intimidate, censor, and prosecute its critics. Leading opposition politicians were arbitrarily arrested, prosecuted, convicted, and barred from running for office. The government prosecuted dozens of lesser-known opponents for criticizing the government. Security forces have committed serious human rights abuses against anti-government protesters and during public security operations that go unpunished. Other concerns include lack of access to basic medicines and supplies—the result of problematic government policies—and continuous harassment of human rights defenders by government officials.

II. Human Rights Issues

Security Force Abuses
During the 2011 UPR of Venezuela, the government noted a recommendation to "fight against the misuse of power by security forces." Since then, Venezuelan security forces have committed serious abuses against anti-government protesters, bystanders, and others, which routinely go unpunished.

In early 2014, the government responded to massive anti-government protests with brutal force. For several weeks, security forces routinely used unlawful force against unarmed protesters and bystanders. They also tolerated and sometimes collaborated directly with armed pro-government gangs that attacked protesters with impunity. Detainees were often held incommunicado on military bases for 48 hours or more before being presented to a judge, and in some cases suffered a range of abuses during detention that included severe beatings; electric shocks or burns; and being forced to squat or kneel without moving for hours.

The Attorney General's Office reported that it had opened 189 investigations into alleged security force abuses committed during the protests and that 42 law enforcement officials had been charged with improper use of force and firearms and ill-treatment of citizens.

Protesters continue to be subject to prosecution for participating in peaceful demonstrations. For example, José Gregorio Hernández Carrasco, a student, was detained in May 2016, two days after he participated in an anti-government demonstration in Caracas. He said he was beaten and tortured and finally agreed to sign a confession. The torture included applying electric shocks, covering his head with a plastic bag to choke him, and placing a stick on his rectum and threatening to rape him. Hernández Carrasco was released in July, but remains subject to criminal prosecution.

In 2016, Venezuelans reported being arrested during street protests over food scarcity—some organized and some spontaneous—and being subject to beatings and other mistreatment while in detention. Doctors and nurses in public hospitals who have spoken out publicly about the humanitarian crisis report being threatened with the loss of their jobs.

Starting in July 2015, President Maduro deployed more than 80,000 members of security forces nationwide in a series of raids under the umbrella of the "Operation to Liberate the People" purportedly to address rising security concerns, as well as illegal sales of scarce products. During these operations, security forces allegedly violated fundamental rights through arbitrary detentions, illegal home searches, and physical abuse. The government reported 245 killings during the operations; in several cases, there have been credible allegations that some victims were extrajudicially executed.

In August 2015, the president declared a state of emergency in six municipalities in Táchira State near the Colombian border. Between August and late September, Venezuelan security forces deported more than 1,700 Colombians. At least 22,000 more left Venezuela fearing abuses or deportation. Hundreds of Colombians claim to have suffered forceful eviction from their homes, which were subsequently destroyed; verbal and physical abuse by Venezuelan security forces; and forceful separation of families. Some deported Colombians had legal permits to live in Venezuela but were not allowed to challenge their deportations.

Judicial Independence
During the 2011 UPR of Venezuela, the government noted recommendations to address the lack of judicial independence in the country.

Since former President Chávez and his supporters in the National Assembly conducted a political takeover of the Supreme Court in 2004, the judiciary has ceased to function as an independent branch of government. Members of the Supreme Court have openly rejected the principle of separation of powers, publicly pledged their commitment to advancing the government's political agenda, and repeatedly ruled in favor of the government, validating its growing disregard for human rights.

Since the opposition assumed the majority in the National Assembly, in January 2016, the Supreme Court, upon President Maduro's request for a constitutional analysis, has struck down almost every law passed. In September, the Constitutional Chamber ruled that every law passed by the current composition of the Assembly would be unconstitutional. It held that the Assembly was not complying with a January ruling by the Electoral Chamber that had temporarily suspended the appointment of three legislators. (In June, the Assembly's leadership had incorporated the legislators, arguing that the Electoral Chamber had failed to decide on a precautionary measure that should have been resolved within days).

Judge María Lourdes Afiuni remains under criminal prosecution as a result of a 2009 ruling in which she authorized the conditional release of a government critic. Although Afiuni's ruling complied with a recommendation by international human rights monitors and was consistent with Venezuelan law, a provisional judge who had publicly pledged his loyalty to Chávez ordered her to stand trial on charges of corruption, abuse of authority, and "favoring the evasion of justice." After a year in prison and two under house arrest, she was released but remains subject to criminal prosecution.

Recommendations:

The National Assembly should:

• Implement a one-time ratification process to legitimize the composition of the Supreme Court, for example, by requiring a two-thirds majority affirmation vote for each Supreme Court justice whose appointment occurred after the passage of the 2004 Supreme Court law, including those appointed in December 2015. Measures should then be taken to permit the lawful removal of any justice who does not receive a two-thirds majority vote during this process. Any resulting vacancies should be filled through a selection process that is open, transparent, and ensures broadest possible political consensus.
• Repeal the provisions of the Supreme Court law that undermine the court's independence by allowing justices to be removed by a simple majority vote.
• Adopt norms to ensure that lower court judges are appointed to permanent positions and do not lack security of tenure

The Attorney General's Office should drop all charges against Judge María Lourdes Afiuni.

Prosecution of Critics
Venezuelan authorities have repeatedly abused the justice system's lack of independence to arrest and prosecute prominent political opponents, which is consistent with their noting of a recommendation during the 2011 UPR that called on Venezuela to "abolish the practice of using the judicial system to silence critics."

In September 2015, a judge convicted Leopoldo López, an opposition leader, and sentenced him to more than 13 years in prison for crimes that include "public incitement" to commit crimes during a demonstration in Caracas in February 2014. Three students whose cases were linked to López's were also sentenced, two to four-and-a-half years, and one to more than 10. The judge ruled all three could serve their sentences in conditional liberty.

During Lopez's trial, the prosecution failed to provide credible evidence linking him to a crime, and the presiding judge, who is a provisional judge and lacks security of tenure, had not allowed his lawyers to present evidence in his defense.

Authorities have also brought or threatened to bring criminal charges against dozens of Venezuelans for criticizing the government. For example, in 2015, National Bolivarian Intelligence Service (SEBIN) agents detained a medical doctor and threatened him with prosecution for criticizing shortages of medicines on television, an engineer after a local newspaper quoted him criticizing government policies that regulate access to electricity, and a businessman a day after he criticized on television the government's economic policies. Lawyers have also been prosecuted for providing legitimate legal assistance to clients.

In 2016, the Bolivarian National Intelligence Service (SEBIN) detained dozens of people on allegations of planning, fomenting, or participating in violent anti-government actions, including some that were peaceful protests. Many say they have been tortured or otherwise abused in custody, and/or that they were unable to see their families or lawyers for hours, occasionally days, after arrest. In several cases documented by Human Rights Watch, prosecutors failed to present any credible evidence linking the accused to crimes. In some cases, the evidence included possession of political materials, including pamphlets calling for the release of political prisoners.

Recommendations:

The Venezuelan government should immediately and unconditionally release Leopoldo López and other political leaders and lesser-known critics who have been convicted for having criticized the government or commenting on issues of public interest. It should also order SEBIN agents to stop arbitrary arrests and abuse of political dissidents.

The Attorney General's Office should:

• Refrain from filing charges against government critics for having questioned government actions or policies;
• Drop all charges against government critics who are being prosecuted for having questioned government actions or policies; and
• Investigate allegations of abuse by security forces against detainees.

Freedom of Expression
Over the past decade, the government has expanded and abused its powers to regulate media and has taken aggressive steps to reduce the availability of media outlets that engage in critical programming. While criticism of the government is articulated in some newspapers and on some websites and radio stations, fear of government reprisals has made self-censorship a serious problem.

In 2010, the National Assembly amended the telecommunications law to grant the government power to suspend or revoke concessions to private outlets if it is "convenient for the interests of the nation." It also expanded the scope of a restrictive broadcasting statute to cover the Internet, allowing the arbitrary suspension of websites for the vaguely defined offense of "incitement." Previous amendments to the criminal code had expanded the scope and severity of defamation laws that criminalize "disrespect" of high government officials.

During the 2011 UPR of Venezuela, the government noted recommendations to respect free speech in the country, and some that specifically called on Venezuela to amend norms that violate the right to freedom of expression.

In April 2015, Diosdado Cabello, the then pro-government National Assembly president, filed civil and criminal charges of aggravated defamation against 22 "shareholders, editors, editorial boards, and owners" of the Venezuelan newspapers Tal Cual and El Nacional and the news website La Patilla for reproducing an article by the Spanish newspaper ABC. The article included statements allegedly made by Cabello's former bodyguard, who the reports said was collaborating with United States authorities to investigate whether Cabello had links to a drug cartel. In March 2016, the director of the newspaper Correo del Caroni was sentenced to four years in prison for defamation and slander for publishing reports on allegations of corruption related to a state mining company.

Security forces have detained, interrogated, and confiscated the equipment of several journalists in 2016. For example, on September 3, Braulio Jatar, a prominent Venezuelan journalist born in Chile who directs an independent digital outlet in Nueva Esparta State, went missing after he covered a spontaneous pot-banging protest against President Maduro in a pro-government neighborhood on Margarita Island. His coverage received widespread attention in Venezuela and internationally. His family did not know his whereabouts for more than 36 hours. An intelligence report accused Jatar of being a "CIA agent" who was organizing "terrorist activities" in preparation for a meeting of the Non-Aligned Movement scheduled to start in Margarita on September 13. A judge charged Jatar with money laundering—which carries a sentence of up to 15 years in prison—for allegedly having approximately US$25,000 cash in his car. Jatar says the evidence was planted. At time of writing, Jatar is in pretrial detention.

Recommendations:

The National Assembly should repeal all legal provisions that contravene international norms on freedom of expression and generate undue pressure for self-censorship. Specifically, it should repeal all insult laws (desacato) and all laws that criminalize defamation of public officials and institutions; ensure that civil damages for defamation are limited so as to avoid a chilling effect on free expression; and amend the language of article 29(1) of the Social Responsibility Law to ensure that the offense of incitement is clearly defined and restricted to situations in which broadcasters directly and explicitly incite the commission of crimes.

The Attorney General's Office should drop all charges in ongoing prosecutions for defamation. It should also drop charges against Braulio Jatar, and immediately release him.

The government of Venezuela should ensure the impartiality and due process in the procedures by which broadcasting laws are enforced. Specifically, it should ensure that investigation and sanctioning of alleged infractions of broadcast laws are carried out by an impartial and independent body protected from political interference; and that alleged violators of broadcast regulations are guaranteed the right to contest the charges against them.

Human Rights Defenders
Although Venezuela accepted some recommendations during the 2011 UPR to support the activities of human rights defenders and to increase dialogue and cooperation with them, it also noted others that called on the government to support the "independent work of the NGOs," to "generate an environment where they can work freely," and to "allow access to international funding so that human rights defenders may continue to carry out their legitimate work."

Since then, Venezuela's government has sought to marginalize the country's human rights defenders through repeated unsubstantiated allegations that they are seeking to undermine Venezuelan democracy. During his weekly show on state-run television in 2015, Cabello repeatedly characterized human rights groups' participation in hearings before the Inter-American Commission on Human Rights (IACHR) or United Nations human rights monitoring bodies as attempts "to destabilize the government."

In 2010, the Supreme Court ruled that individuals or organizations that receive foreign funding could be prosecuted for "treason." In addition, the National Assembly enacted legislation blocking organizations that "defend political rights" or "monitor the performance of public bodies" from receiving international assistance.

In May 2016, President Maduro issued a presidential decree that—in addition to declaring a "state of exception" and granting himself the power to suspend rights—instructed the Foreign Affairs Ministry to suspend all agreements providing foreign funding to individuals or organizations when "it is presumed" that such agreements "are used for political purposes or to destabilize the Republic."

Recommendations:

The Venezuelan government should abandon its aggressively adversarial posture toward local human rights defenders and civil society organizations. Specifically, government officials should:

• Refrain from unfounded attacks on the credibility of human rights defenders and civil society organizations; and
• Publicly retract unfounded public statements against rights advocates and organizations.

In addition, the National Assembly should amend legislation that imposes limits on the ability of these groups to obtain international funding.

Prison Conditions
Venezuela accepted only some of the 2011 UPR recommendations to improve its prison system. Prison conditions in Venezuela remain dire. Corruption, weak security, deteriorating infrastructure, overcrowding, insufficient staffing, and poorly trained guards allow armed gangs to effectively control the prisons in which they are incarcerated. The Venezuelan Observatory of Prisons, a human rights group, reported that 6,663 people died in prisons between 1999 and 2015. As of July 2016, average overcrowding of 210 percent plagued Venezuelan prisons, according to the Observatory.

Rights to Health and Food
Despite its commitment during the 2011 UPR to protect the right to health, the government has failed to ensure that basic medicines and supplies are available and accessible to all Venezuelans without discrimination. It has failed to provide the public health care system with medicines and supplies, and at the same time its currency exchange rules and price controls interfere with the import of medicines and health care products, resulting in a grossly inadequate supply of essential medications and medical supplies.

In March 2015, a network of medical residents working in public hospitals throughout the country reported that 44 percent of the nation's operating rooms were not functional and 94 percent of labs did not have the materials they needed to operate properly. In August 2016, they reported severe shortages—or complete lack—of basic medicines in 76 percent of the hospitals surveyed, up from 55 percent in 2014 and 67 percent in 2015.

Official statistics of infant and maternal mortality rates in 2016 are substantially higher than rates reported in previous years. The infant mortality rate for the first five months of 2016 was 18.61 deaths per 1,000—45 percent higher than 2013 figures. The maternal mortality rate for the first five months of 2016 was 130.70 deaths for every 100,000 births, which is 79 percent higher than the latest available official figures, from 2009.

Severe shortages of food make it extremely difficult for many people to obtain adequate nutrition. In a 2015 survey by civil society groups and two Venezuelan universities, 87 percent of interviewees nationwide—most from low-income households—had difficulty purchasing food. Twelve percent of interviewees were eating two or fewer meals a day.

Recommendations:

The Venezuelan government should ensure that basic medicines and supplies are available and accessible to all without discrimination. It should take immediate and urgent steps to develop, implement, and publicly articulate effective policies to address the crisis in Venezuela's health sector and shortages of food.

Political Discrimination
In June 2016, dozens of workers from the customs and tax agency were fired in apparent retaliation for supporting the recall of President Maduro. Media have reported hundreds of other referendum supporters nationwide fired under similar circumstances. International law forbids governments' discrimination or retaliation for political views.

Recommendations:

The Venezuelan government should comply with international standards that prohibit discrimination based on political grounds.

On the International Criminal Court:

• Venezuela should complete the process of fully aligning its national legislation with all obligations under the Rome Statute of the International Criminal Court (ICC).

Annexes:

1. "A Decade Under Chavez: Political Intolerance and Lost Opportunities for Advancing Human Rights in Venezuela," Human Rights Watch report, September 2008.
2. "Tightening the Grip: Concentration and Abuse of Power in Chávez's Venezuela," Human Rights Watch report, July 2012.
3. "Punished for Protesting: Rights Violations in Venezuela's Streets, Detention Centers, and Justice System," Human Rights Watch report, May 2014.
4. "Unchecked Power: Police and Military Raids in Low-Income and Immigrant Communities in Venezuela," Human Rights Watch report, April 2016.
5. "Venezuela's Humanitarian Crisis: Severe Medical and Food Shortages, Inadequate and Repressive Government Response," Human Rights Watch report, October 2016.
6. Other Human Rights Watch material:
   
   1. "Venezuela's Health Care Crisis," April 2015, https://www.hrw.org/news/2015/04/29/venezuelas-health-care-crisis .
   2. "Critics Under Threat," August 2015, https://www.hrw.org/news/2015/08/06/venezuela-critics-under-threat .
   3. "Candidates Barred Arbitrarily," August 2015,

https://www.hrw.org/news/2015/08/27/venezuela-candidates-barred-arbitrarily

4. "The Shattered Case Against Leopoldo López," December 2015, https://www.hrw.org/news/2015/12/02/shattered-case-against-leopoldo-lopez .
5. "Revoke Emergency Decree," May 2016, https://www.hrw.org/news/2016/05/19/venezuela-revoke-emergency-decree.
6. "Recall Supporters Fired," July 2016, https://www.hrw.org/news/2016/07/20/venezuela-recall-supporters-fired.
7. "Dissidents Allege Torture, Coerced Confessions," July 2016, https://www.hrw.org/news/2016/07/27/venezuela-dissidents-allege-torture-coerced-confessions .

[1] Updates as of October 5, 2016, are included in bold.