I/A Court H.R., Case of Perozo et al. v. Venezuela. Preliminary Objections, Merits, Reparations, and Costs. Judgment of January 28, 2009. Series C No. 195.

Non official brief

 This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2009-2-e.pdf

 

Headnotes:


States, in their role as guarantors of fundamental human rights, are obligated to refrain from making statements that may cause or encourage interference with, or the impairment of the rights of, persons who intend to contribute to the public discourse by way of the expression and dissemination of ideas, especially in situations of great social conflict, public disorder, or political or social polarisation.


When evaluating the diligence and effectiveness of the State in carrying out investigations, the Court must consider the alleged victims' delays in notifying the State of alleged illegal acts. The passage of time frustrates, and may render nugatory, the State's collection of probative evidence.


States must immediately evaluate and classify injuries that are reported by alleged victims so that the crimes alleged may be prosecuted under the appropriate legal categories.


A claimant alleging a violation of Article 13.3 ACHR must prove that the governmental action at issue effectively restricts, either directly or indirectly, communication and the free exchange of ideas and opinions.


Public prosecutors must timely decide, in accordance with domestic law, whether a criminal complaint shall proceed to the investigative stage of a proceeding or be dismissed.


A claim alleging violations of Articles 1, 2 and 7 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women ("Convention of Belem do Pará") cannot be sustained absent evidence that female victims were targeted directly or affected disproportionately on account of their sex or gender.


A claimant who alleges an impermissible governmental restraint on the exercise of the freedom to seek, receive, and disseminate information and ideas, based on de facto restrictions rather than actions legally ordered by the State, bears the burden of proving that the State impermissibly restricted his or her access to certain official sources of information. After the claimant successfully proves this allegation, the burden shifts to the State to prove that such restrictions are justified.


Summary:

 

I. During the years 2001 to 2005, unidentified private individuals committed various acts of harassment, verbal threats, and physical violence against forty-four news reporters and other employees of Globovisión Television Station. These incidents occurred in the context of a period of political and social turmoil, during which high-ranking officials of the Bolivarian Republic of Venezuela (hereinafter "the State") made numerous public statements labelling the private Venezuelan news media in general and Globovisión, as well as its shareholders and executives, in particular, as enemies of the State. Although the State initiated criminal investigations relating to several of the reported incidents of violence and harassment, these proceedings remained pending in preliminary stages for varying lengths of time - some for up to six years - in the absence of domestic legislation stipulating a maximum term for such criminal investigations.


On 12 April 2007, the Inter-American Commission on Human Rights (hereinafter "the Commission") filed an application with the Inter-American Court of Human Rights (hereinafter "the Court") against the State, alleging violations of Article 5 ACHR (Right to Humane Treatment), Article 8 ACHR (Right to a Fair Trial), Article 13 ACHR (Right to Freedom of Thought and Expression), and Article 25 ACHR (Right to Judicial Protection), in relation to Article 1.1 ACHR, to the detriment of forty-four named victims. The representatives of thirty-seven of the forty-four victims (hereinafter "the representatives") alleged additional violations of Article 21 ACHR (Right to Property) and Article 24 ACHR (Right to Equal Protection) in relation to Article 13 ACHR and of Articles 5, 8, 13 and 25 ACHR, "in connection with" Articles 1, 2 and 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women ("Convention of Belem do Pará").

 

II.  In its Judgment of 28 January 2009, the Court dismissed the State's preliminary objections, observing that the President of the Court had already disposed of the State's objection to the alleged untimely submission of the representatives' brief in a prior Order; that the State's objection to the alleged inadmissibility of new arguments in the representatives' brief was without merit, since the victims may advance new pleadings as long as they are related to the same facts alleged in the Commission's application; that the President had already rejected in a prior Order the State's motion for recusal of two of the Court's judges; and that the State failed to timely object to the victims' alleged failure to exhaust domestic remedies.


Additionally, the Court held that the State had failed to comply with the obligation contained in Article 1.1 ACHR to ensure the right to freely seek, receive, and impart information established in Article 13.1 ACHR, to the detriment of thirty-three named victims; and to ensure the right to humane treatment established in Article 5.1 ACHR, to the detriment of twenty-six of those victims. The Court did not find sufficient evidence to declare that State agents perpetrated or in some way supported the acts of aggression, intimidation, and harassment against the employees of Globovisión. Indeed, the case file showed that State agents had acted to protect the victims in several instances. However, the Court held that those private acts of aggression and harassment, which had effectively restricted, impeded, and intimidated the victims in their practice of journalism, gave rise to the State's duty to prevent and investigate the facts. In that regard, the Court found that statements made by high-ranking governmental officials during a period of social conflict and polarisation exacerbated the danger faced by the victims. Moreover, despite the fact that the State had received 48 complaints, it had investigated only 19 of these; the majority of the investigations initiated had remained idle for extended periods of time without justification; and, in some of the investigations, State agents did not undertake all the measures necessary to gather relevant evidence. Additionally, in some of the proceedings initiated, prosecutors and judicial authorities delayed the emission of decisions that they were required by domestic law to make.


However, the Court declined to find a violation of Articles 13.3 or 24 ACHR because the evidence presented failed to show that the prior restraint on access to certain official events and sources of information was adopted specifically to bar the victims. Likewise, the Court declined to find a violation of Article 21 ACHR because the alleged property damage caused to the premises and assets of Globovisión was suffered by the company as a legal entity and the representatives had failed to show that the rights of the victims, in their capacity as the company's shareholders, had been directly affected. Finally, the Court did not analyse the facts of the case under Articles 1, 2 and 7.b of the Convention of Belem do Pará because the representatives failed to allege how female victims were targeted directly or affected disproportionately on account of their sex or gender.


Accordingly, the Court ordered the State, inter alia, to initiate any criminal investigations necessary to determine the parties responsible for the facts of the case and to conclude those investigations still pending at the domestic level; to publish the Judgment; to adopt all measures necessary to prevent unwarranted restraints on the exercise of the freedom to seek, receive, and impart information; and to reimburse the costs and expenses of the parties.


III. Judge ad hoc Pasceri Scaramuzza wrote a dissenting opinion.