Venezuela: Situation and treatment of sexual minorities; recourse available to victims of discrimination; state protection (2010-June 2014)

1. Legislation

The Constitution of the Bolivarian Republic of Venezuela indicates the following:

[Translation]

Article 21: All persons are equal before the law, and, consequently:

No discrimination based on race, sex, creed or social standing shall be permitted, nor, in general, any discrimination with the intent or effect of nullifying or encroaching upon the recognition, enjoyment or exercise, on equal terms, of the rights and liberties of every individual.

The law shall guarantee legal and administrative conditions such as to make equality before the law real and effective manner; shall adopt affirmative measures for the benefit of any group that is discriminated against, marginalized or vulnerable; shall protect in particular those persons who, because of any of the aforementioned circumstances, are in a manifestly weak position; and shall punish those who abuse or mistreat such persons. (Venezuela 1999)

The US Department of State's Country Reports on Human Rights Practices for 2013 explains that the Constitution of Venezuela "does not explicitly prohibit discrimination based on sexual orientation or sexual identity" (US 27 Feb. 2014, 40).

Discrimination based on [translation] "gender orientation" is prohibited by the Labour Law (Ley Orgánica del Trabajo, los Trabajadores y las Trabajadoras) (ibid. 2012, Art. 21) and the Law for the Regulation and Control of Housing Leases (Ley para la Regularización y Control de los Arrendamientos de Vivienda) (ibid. 2011, Art. 5.8). Venezuela's strategic roadmap for the economic and social development of the nation from 2013 to 2019 (Plan de la Patria: Segundo Plan Socialista de Desarrollo Económico y Social de la Nación, 2013-2019) further seeks to [translation] "consolidate" gender equality in the country by guaranteeing and respecting the rights of all citizens, including sexual minorities (ibid. 28 Sept. 2013, Sec. 2.2.4.). Male to male and female to female relationships are legal in Venezuela (ILGA-LAC n.d.; ACCSI 9 June 2014).

Regarding same sex marriages, the Constitution indicates the following:

[Translation]

Article 77: Marriage, which is based on free consent and absolute equality of rights and obligations of the spouses, is protected. A stable de facto union between a man and a woman which meets the requirements established by law shall have the same effects as marriage. (Venezuela 1999)

The Civil Code of Venezuela further indicates:

[Translation]

Article 44: Marriage may only be entered into by one man and one woman. The Law does not recognize any marriage entered into in Venezuela other than that which is regulated by this Title, which is the sole marriage to produce legal effects, both with respect to individuals and to property. (ibid. 1982)

Sources indicate that Venezuela's LGBT movement presented a legal proposal to the National Assembly [on 31 January 2014 (Venezuelanalysis.com 31 Jan. 2014)] that would legalize same-sex marriages (Venezuelanalysis.com 31 Jan. 2014; ACCSI 9 June 2014). The project has the support of [translation] "at least" four members of the National Assembly (ibid.; Venezuelanalysis.com 31 Jan. 2014) as well as two state governors, several government ministers and the comptroller general (ibid.). However, in a telephone interview with the Research Directorate, a representative from Acción Ciudadana Contra el SIDA (ACCSI), an NGO that [translation] "protects, promotes and defends the human rights of people with HIV/AIDS and vulnerable population" (ACCSI n.d.), indicated that [translation] "some" members of the National Assembly are "reticent" to approve the law and that to date, it has not been debated by that legislative body (ibid. 9 June 2014). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Sources also indicate that the LGBTI movement in Venezuela has been asking members of the National Assembly to enact legislation to address [translation] "hate crimes" and discrimination against sexual minorities in Venezuela (El Tiempo 12 Nov. 2012; ACCSI 9 June 2014). To date, no legislation has been enacted (ibid.). Country Reports 2013 indicates that a ruling by the Supreme Court (Tribunal Supremo de Justicia) of Venezuela, which states that "no individual may be discriminated against because of sexual orientation," is "rarely enforced" by authorities (US 27 Feb. 2014, 40).

Sources indicate that there is no concordance between the position that the Venezuela state takes internationally and what is actually happening inside the country (El Tiempo 12 Nov. 2012; ACCSI 9 June 2014). According to the representative from ACCSI, despite the existing legislation, the situation of sexual minorities in Venezuela is [translation] "precarious," since laws are not always followed (ibid.). In correspondence sent to the Research Directorate, a representative of Venezuela Diversa Asociación Civil [commonly known as Venezuela Diversa], an NGO that advances the rights of LGBTI persons in Venezuela (Venezuela Diversa n.d.), similarly indicated that, even though Venezuela presents the country as progressive in terms of legal framework and social context, it [translation] "falls short" in relation to the protection of sexual minorities (ibid. 5 June 2014).

2. Treatment by Society

In the annual report of the Office of the Ombudsperson for 2012, the state agency responsible for protecting the rights and guarantees of citizens as outlined in the Constitution and international treaties (Venezuela n.d.b), Luisana Gómez, professor at the School of Human Rights (Escuela de Derechos Humanos) in Venezuela, indicated that [translation] "'Venezuelan society has had, and still has, a patriarchal, macho, and exploitative bias that creates prejudices against [LGBT] and restricts the visibility of crimes against them'" (Venezuela 21 Mar. 2013, 12). Sources indicated that sexual minorities in Venezuela face stigmatization, prejudice, violence, discrimination, exclusion, threats, and mistreatment (ACCSI 9 June 2014; Venezuela Diversa 5 June 2014). Two sources note that sexual minorities face discrimination when accessing health care services, face obstacles when obtaining employment, and are sometimes dismissed when the employer finds out that the employee is an LGBT person (ibid.; ACCSI 9 June 2014). The same sources also indicated that LGBT persons face discrimination in public places such as shopping malls, theatres, bars, restaurants, museums, and hotels (ibid.; Venezuela Diversa 5 June 2014). According to the ACCSI representative, discrimination levels in public hospitals against LGBT persons are [translation] "extremely high," especially when they are HIV positive (9 June 2014). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

The Organization of American States' (OAS) Inter-American Commission on Human Rights indicates in its annual report on Venezuela for 2013, that it received information from media outlets "about the high rates of violence and discrimination against LGBTI persons in Venezuela, in particular in relation to gay men and trans women" (OAS 23 Apr. 2014, para. 706). The Country Reports 2013 indicates that

[p]sychological, verbal, and physical abuses towards the LGBT community were common practice in schools and universities, according to leading advocates. No laws or policies protect LGBT persons against bullying. As a result, according to NGOs, LGBT students had a higher dropout rate than heterosexual students. (US 27 Feb. 2014, 41)

Sources indicate that the Venezuelan Catholic Church interferes with government initiatives to promote the rights of LGBT persons (UN 22 July 2011, para. 11; ACCSI 9 June 2014). The representative of Venezuela Diversa indicated that LGBT persons [translation] "often face violent opposition and invisibility from other social groups, especially religious and dogmatic organizations, [and] leaders of conservative and progressive parties" (5 June 2014). According to the ACCSI representative, [translation] "many of those who legislate and take decisions are Christians and, therefore, are against anything that has to do with sexual diversity" (9 June 2014). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2.1 Incidents of Violence Against Sexual Minorities

The Inter-American Commission on Human Rights report indicates that, based on media articles, 12 transgender persons were killed between January and October 2013 in the states of Lara, Vargas, Zulia, Mérida, and Aragua (OAS 23 Apr. 2014, para. 707). A report produced by ACCSI on [translation] "hate crimes" against LGBT persons and based on a review of media articles between January 2009 and August 2013, indicates that 99 "hate crimes" were committed against LGBT people in the country (ACCSI Oct. 2013, 5). The total number includes 46 murders, as well as 53 attacks, including [translation] "torture, inhuman and degrading treatment, arbitrary detentions, verbal, physical and psychological aggressions, threats, police attacks, [and] abuse of power" (ibid., 5-6). The report indicates that the majority of the killings (76.1 percent) occurred on the street, and the majority of the victims died from gunshot wounds (54.3 percent), stabbings (10.9 percent), and a combination of both, in addition to beatings (6.5 percent) (ibid., 26). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. El Tiempo, a Puerto La Cruz-based newspaper, reports that, according to Venezuela Diversa, 11 transsexuals have been killed on or around Libertador Avenue in Caracas between 2008 and 2012 (El Tiempo 12 Nov. 2012). Further information and whether these incidents were "hate crimes" could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Other reported incidents include:

On 31 October 2012, 3 boys attacked an 18-year-old boy who openly considered himself as gay, by dousing him in gasoline and setting him on fire, producing third-degree burns on 40 percent of his body (El Tiempo 12 Nov. 2012). After the attack, which occurred in the municipality of Linares Alcántara, Aragua State, the three boys reportedly told the victim that [translation] "'we do not accept gays in this neighbourhood'" (ibid.).

On 22 May 2011, a 24-year-old male-to-female transsexual who worked as a hairdresser was abducted and later killed in Caracas (El Tiempo 12 Nov. 2012). Reportedly he had been attacked several times in the past (ibid.).

According to El Tiempo, on 3 June 2012, a transsexual and sex worker was gunned down on Libertador Avenue by an unknown individual (12 Nov. 2012). According to Venezuela Diversa, no one has been charged for the crime (5 June 2014).

According to Venezuela Diversa, on 19 July 2013, a gay artist and dancer was gunned down on Libertador Avenue, and no one has been charged for the crime (5 June 2014).

Further details could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. Treatment by Authorities

The Huffington Post, a news aggregator, reports that "multiple arbitrary arrests carried out against the [LGBTI] ... community, [were committed] within the framework of Operation Safe Caracas, a campaign to crack down on crime involving personnel from several police forces and the National Guard" (25 May 2011). The Inter-American Commission on Human Rights indicates that, during 2013, it received reports of abuses by the police against LGBT persons, and that in 2012, these abuses "constituted a recurring situation" (OAS 23 Apr. 2014, para. 708). Country Reports 2013 indicates that

[l]ocal police and private security forces allegedly prevented LGBT persons from entering malls, public parks, and recreational areas ... [T]he government systematically denied legal recognition to transgender and transsexual persons by preventing them from obtaining identity documents required for accessing education, employment, housing, and health care. This vulnerability often led transgender and transsexual persons to become victims of human trafficking or prostitution. (US 27 Feb. 2014, 40-41)

The ACCSI representative indicated that, even though demonstrations by LGBT persons have the support of some government institutions, some municipalities prohibit them (ACCSI 9 June 2014). Sources indicate that the city hall of the municipality of Libertador [in the metropolitan area of Caracas] prohibited a demonstration organized by Venezuela Diversa against homophobia, which was to take place on 17 May 2014, arguing that, based on unofficial information, the municipality [translation] "'only recognizes the right to protest to sectors close to the government's party'" (ibid.; Venezuela Diversa 12 June 2014). Also, the city hall of the municipality of Chacao did not give prompt authorization regarding the march that was set to begin in that municipality and end in the municipality of Libertador Provea 5 May 2014). Organizers of the march were repeatedly told to wait for the approval of city hall (ibid.). Agence France-Presse (AFP) reports that, on 30 June 2013, [translation] "hundreds" of people belonging to sexual minorities held a demonstration in Caracas denouncing the discrimination and repression that they are subjected to in Venezuela (AFP 30 June 2013). According to one of the demonstrators, none of the political parties in Venezuela has a program to deal with the [translation] "'discrimination, violence, daily oppression and hate crimes that are committed in the country [against the LGBT community]'" (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

The ACCSI representative indicated that, during demonstrations held by LGBT persons, members of the municipal police of Caracas and the Bolivarian National Guard (Guardia Nacional Bolivariana) have acted with excessive force and intimidated LGBT persons due to their [translation] "actual or perceived sexual orientation" (9 June 2014). Members of Venezuela Diversa, during field work in Caracas neighbourhoods where LGBT persons gather, have seen similar behaviour first hand, and collected corroborating testimonies (Venezuela Diversa 30 Oct. 2013). Venezuela Diversa also indicated that members of the National Guard and other armed groups without uniform or identification act with [translation] "brutality" and "intransigence" against sexual minorities (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Sources report that government officials use anti-gay slurs to attack members of the opposition (The Wall Street Journal 16 Aug. 2013; ACCSI 9 June 2014). According to the ACCSI representative, the president, ministers, legislators, and some public servants [translation] "constantly promote homophobia by using antigay slurs against political opponents" (ibid.). The Wall Street Journal reports that Pedro Carreño, legislator from the government's party, accused the opposition of "moral degradation" after releasing photos of one of its top members hugging men in a private gathering (The Wall Street Journal 16 Aug. 2013). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. Venezuelan President Nicolás Maduro also used anti-gay slurs against rival Henrique Capriles (ibid.; Huffington Post 15 Mar. 2013). He later apologized for the slurs on state television (Noticias 24 17 Apr. 2012; The Wall Street Journal 16 Aug. 2013).

El Tiempo reports that, on 26 October 2012, 23 transsexual persons were detained in Caracas by members of the Corps of Scientific, Penal and Criminal Investigations (Cuerpo de Investigaciones Científicas, Penales y Criminalísticas, CICPC), who brought them in for questioning regarding a homicide that had occurred days before (12 Nov. 2012). The CICPC is the state agency responsible for investigating crimes committed in the country (Venezuela n.d.a). El Tiempo quotes representatives of Venezuela Diversa as saying that four of the detainees were tortured with electricity, beaten, and insulted, and no official response was given by authorities in this regard (El Tiempo 12 Nov. 2012). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

4. State Protection and Support Services

Sources indicate that state support services available for LGBT persons are non-existent and that the LGBT community relies mostly on local NGOs (Venezuela Diversa 12 June 2014; ACCSI 9 June 2014). The ACCSI representative indicated that there was a shelter in Caracas for homeless persons, which used to take LGBT persons [translation] "in situations of vulnerability" and was run by the Ministry for Communes and Social Protection (Ministerio del Poder Popular para las Comunas y Protección Social), for four years, but it is now closed (ibid.). He also indicated that members of sexual minorities receive assistance from organizations like ACCSI, which provides psychological, legal and health assistance (ibid.). According to the representatives of ACCSI and Venezuela Diversa, the main challenge they face in providing assistance to LGBT persons is the lack of money to operate adequately (ibid.).

On 29 August 2013, the Office of the Ombudsperson announced that it would create a Special Office of the Ombudsperson for Sexual Diversity (Defensoría especial de diversidad sexual, or Defensoría especial para la diversidad sexual), and asked the LGBTI community to recommend candidates to lead that Office (Últimas Noticias 29 Aug. 2013; AVN 29 Aug. 2013). Further information on this Office could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

A 2011 report submitted by the government of Venezuela for the Universal Periodic Review indicates that, in spite of the "hard" work of the Office of the Ombudsperson in the protection of sexual minorities' rights, "its efforts so far have fallen short" and that promoting, defending and monitoring the human rights of sexual minorities "is still a challenge" (Venezuela 19 July 2011, para. 146). A report by the Office of the Ombudsperson indicates that, in 2012, it carried out a workshop with public servants responsible for taking complaints made by LGBT persons in Venezuela, with the participation of several NGOs that work for the protection of human rights of sexual minorities (ibid. 21 Mar. 2013, 12).

Country Reports 2013 indicates that "victims of hate crimes based on sexual orientation or sexual identity frequently did not report the incidents and were often subjected to threats or extortion if they filed official complaints" (US 27 Feb. 2014, 40). The ACCSI representative indicated that LGBT persons who have been victims of crimes or abuse do not file police complaints because [translation] "they do not believe in the justice system" (ACCSI 9 June 2014). The representative explained that "crimes are not investigated, there is impunity in 98 percent of cases of violence against LGBT persons, and it is a generalized problem that public institutions do not take complaints from LGBT persons" (ibid.). According to the media survey elaborated by ACCSI, a police complaint was filed for one incident, but it is not known if other complaints were made (Oct. 2013, 31). The representative of Venezuela Diversa also indicated that abuses against LGBT persons are committed with impunity because the [translation] "majority of victims of mistreatment by authorities mistrust the justice system and refuse to file a complaint" (5 June 2014). Country Reports 2013 also indicates that crimes against LGBT are considered "'crimes of passion'" since the law does not have any legal definition of a "hate crime" (US 27 Feb. 2014, 40). The media survey produced by ACCSI indicates that in 54.7 percent of the cases (29 out of 53), the persons responsible for violence against LGBT persons belong to security forces (Oct. 2013, 36).

Sources indicate that the police does not properly investigate the motives of crimes against sexual minorities (US 27 Feb. 2014, 40; ACCSI 9 June 2014). The ACCSI report indicates that, according to the media survey, 4 out of the 46 killings were resolved by investigating authorities and that there is no news on the status of the other 42 cases (Oct. 2013, 28). Noticias 24, a news portal based in Venezuela, reports that, according to the leader of Venezuela Diversa, the Office of the Attorney General has not given any pronouncement regarding the [translation] "multiple killings of transgender persons on Libertador Avenue in Caracas and in other parts of the country" (25 July 2013). The Inter-American Commission on Human Rights report indicates that, according to Venezuela Diversa, that NGO signed agreements with the Caracas police and the Bolivarian National Guard on 16 July 2013 "in in response to the situation of police abuse and violence perpetrated by State security agents,"but one week later, police forces shot at a group of "transgender women" with pellets and gas (23 Apr. 2014, para. 708). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Agence France-Presse (AFP). 30 June 2013. "Gays marcharon por Caracas exigiendo derechos y cese de discriminación." [Accessed 3 June 2014]

Acción Ciudadana Contra el SIDA (ACCSI). 9 June 2014. Telephone interview with a representative.

_____. 17 March 2014. "Personas LGBTI exigen cese a las violaciones de Derechos Humanos en Venezuela." [Accessed 27 May 2014]

_____. October 2013. Alberto Nieves and Argenis Mondragón. Informe Venezuela 2013, resultados preliminares: Crímenes de odio por orientación sexual, identidad de género y expresión de género en la noticia de los medios de comunicación y organizaciones de la sociedad civil. Revisión hemerográfica, enero 2009 a agosto 2013. [Accessed 3 June 2014]

_____. N.d. "Presentación institucional." [Accessed 9 June 2014]

Agencia Venezolana de Noticias (AVN). 29 August 2013. "Crearán Defensoría Especial para la Diversidad Sexual." [Accessed 9 June 2014]

El Tiempo. 12 November 2012. Juan Carlos Figueroa. "'Aquí, en este barrio, no se aceptan gays'." [Accessed 3 June 2014]

Huffington Post. 15 March 2013. "Nicolas Maduro, Venezuela Interim President, Responds to 'Anti-gay' Allegations." [Accessed 23 May 2014]

_____. 25 May 2011. "Venezuela: Gays Attacked, Harassed by Police." [Accessed 3 June 2014]

International Lesbian, Gay, Bisexual, Trans and Intersex Association - Latin America and the Carribean (ILGA-LAC). N.d. "Venezuela." [Accessed 27 May 2014]

Noticias 24. 25 July 2013. "Transexuales piden justicia al MP ante 'los múltiples asesinatos por discriminación'." [Accessed 6 June 2014]

_____. 17 April 2012. "Maduro se diculpa con la comunidad gay del país por el adjetivo usado contra Capriles." [Accessed 12 June 2014]

Organization of American States (OAS). 23 April 2014. Inter-American Commission on Human Rights (IACHR). Annual Report 2013. [Accessed 3 June 2014]

Programa Venezolano de Educación - Acción en Derechos Humanos (Provea). 5 May 2014. "Alcaldes de Libertador y Chacao violan la Constitución Nacional al negar y obstaculizar el derecho a la manifestación pacífica de la ONG Venezuela Diversa." [Accessed 11 June 2014]

Últimas Noticias. 29 August 2013. Gabriela Rojas. "Ramírez anuncia creación de Defensoría especial de diversidad sexual." [Accessed 9 June 2014]

United Nations (UN). 22 July 2011. Human Rights Council. Summary Prepared by the Office of the High Commissioner for Human Rights in Accordance with Paragraph 15 (c) of the Annex to Human Rights Council Resolution 5/1 - Venezuela (Bolivarian Republic of). (A/HRC/WG.6/12/VEN/3) [Accessed 3 June 2014]

United States (US). 27 February 2014. Department of State. "Venezuela." Country Reports on Human Rights Practices for 2013. [Accessed 3 June 2014]

Venezuela. 28 September 2013. Plan de la Patria: Segundo Plan Socialista de Desarrollo Económico y Social de la Nación, 2013-2019. [Accessed 3 June 2014]

_____. 21 March 2013. Defensoría del Pueblo. Informe anual 2012. [Accessed 9 June 2014]

_____. 2012. Ley Orgánica del Trabajo, los Trabajadores y las Trabajadoras. [Accessed 4 June 2014]

_____. 19 July 2011. National Report Submitted in Accordance with Paragraph 15 (a) of the Annex to Human Rights Council Resolution 5/1 - Venezuela (Bolivarian Republic of). (A/HRC/WG.6/12/VEN/1) [Accessed 3 June 2014]

_____. 2011. Ley para la Regularización y Control de los Arrendamientos de Vivienda. [Accessed 3 June 2014]

_____. 1999 (Amended 2009). Constitution of the Bolivarian Republic of Venezuela (Constitución de la República Bolivariana de Venezuela). Translated by the Ministry of Communication and Information of the Bolivarian Republic of Venezuela. Amendment translated by Jefri Jay Ruchti. In World Constitutions Illustrated. Edited by Jefri Jay Ruchti. Buffalo, NY: William S. Hein & Co., Inc.

_____. 1982. Civil Code of Venezuela. Translated by the Translation Bureau, Public Works and Government Services Canada. [Accessed 3 June 2014]

_____. N.d.a. Cuerpo de Investigaciones Científicas, Penales y Criminalísticas (CICPC). "Misión y visión." [Accessed 9 June 2014]

_____. N.d.b. Defensoría del Pueblo. "En la República Bolivariana de Venezuela." [Accessed 9 June 2014]

Venezuelanalysis.com. 31 January 2014. Ewan Robertson. "Venezuelan LGBT Movement Submits Proposal for Same Sex Marriage." [Accessed 23 May 2014]

Venezuela Diversa Asociación Civil. 12 June 2014. Telephone interview with a representative.

_____. 5 June 2014. Correspondence sent to the Research Directorate by a representative.

_____. 30 October 2013. "Policía Municipal de Caracas y Guardia Nacional Bolivariana aplican abuso de poder contra personas LGBTI." [Accessed 3 June 2014]

_____. N.d. "Venezuela Diversa Asociación Civil." [Accessed 9 June 2014]

The Wall Street Journal. 16 August 2013. Kejal Vyas and Ezequiel Minaya. "Venezuela Government Under Fire for Anti-gay Slurs." [Accessed 27 May 2014]

Additional Sources Consulted

Oral sources: Attempts to contact representatives from the following organizations were unsuccessful: Defensoría del Pueblo, Fundación Reflejos de Venezuela, and Unión Afirmativa de Venezuela.

An LGBT rights activist could not provide information within the time constraints of this Response.

Internet sites, including: Asociación Civil de Planificación Familiar; ecoi.net; Factiva; Fédération internationale des ligues des droits de l'homme; Freedom House; Human Rights Watch; International Gay and Lesbian Human Rights Commission; Noticierodigital.com; United Nations - Integrated Regional Information Networks, ReliefWeb; San Diego Gay and Lesbian News; United States - Central Intelligence Agency, Department of State; Venezuela - Ministerio del Poder Popular para Relaciones Interiores, Justicia y Paz, Tribunal Supremo de Justicia; Venezuela al Día.