I/A Court H.R., Case of San Miguel Sosa et al. v. Venezuela. Merits, Reparations and Costs. Judgment of February 8, 2018. Series C No. 348.

Non official brief

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.]

 

 

The applicants, Ms. San Miguel Sosa, Ms. Chang Girón and Ms. Coromoto Peña, signed a petition for a recall referendum of the President of Venezuela, which was presented before the National Electoral Council in December 2003. The President of Venezuela authorized a member of the National Assembly to obtain a copy of the list of signatories to the petition from that council. Later on, such member published on the list of signatories on a web page (known as the "Tascón list") accusing them of taking part in a "mega fraud". After the list was made public, workers and public officials of several institutions denounced that they had been fired as retaliation for having signed the petition for a recall referendum. In March 2004 the applicants, who had worked for several years at the National Borders Council (organ of the Ministry of Foreign Affairs), received a letter from their superior communicating that their temporary labor contracts had been terminated. The decision was allegedly based on a discretionary clause stipulated therein. All the subsequent remedies filed by the applicants before judicial authorities and the Ombudsperson were declared inadmissible or denied on the merits.

 

Merits

 

Article 23 (1.a) and (1.b) (right to political participation) of the American Convention on Human Rights (ACHR), in conjunction with Article 1 (1) (obligation to respect and guarantee rights without discrimination): The Inter-American Court of Human Rights (hereafter, "the Court") considered that the possibility to seek and participate in a recall referendum is a political right protected under Article 23 (1.a) and (1.b) of the ACHR. Such right was also stipulated in the Venezuelan Constitution. Therefore, the applicants were entitled, as citizens, to request them individually or to participate in the collective gathering of signatures. The Court stressed that in a democratic society no one should be subjected to any form of discrimination based on their political opinion or due to the legitimate exercise of his or her political rights. 

  

The Court noted that the process of gathering signatures was conducted in a context of political instability and intolerance to dissidence.    

 

The Court acknowledged that the motive or purpose of a certain official act provides the basis for determining whether a State's action can be considered arbitrary or an abuse of power. The Court, however, noted that the actions of State authorities are covered by a presumption of legality. Hence, in order to rebut this presumption of good faith, an irregular action on the part of the authorities must be established. For those purposes, the Court proceeded to recount and examine the evidence in the case file related to the alleged undeclared purpose, that is to say, that the motivation or real purpose of the termination of the applicants' contracts was to exercise some form of disguised retaliation, persecution or discrimination against them.

 

For the Court, the act of handing the list of signatories to a member of the National Assembly, authorized by the President, without due safeguards in that political context, revealed a lack of guarantees against possible actions or threats of retaliation. Given the size and scope of the "Tascón list" published on a web page under "mega fraud" label, it was clear that, beyond the legitimate aim to guarantee the rights of the revocable official of the applicants, the publication of the identity of the citizens who signed the petition for a recall referendum had ulterior motives aimed at intimidating and deterring political participation and dissidence. This, in turn, favored retaliation, political persecution and discrimination of those who were perceived as political opponents.

 

The Court determined that the termination of the applicants' contracts constituted a form of abuse of power, which was carried out under the veil of legality of a contract clause to cover its real motivation, that is to say, retaliation for having legitimately exercised a political right The Court based such conclusion on the fact that the applicants were dismissed one month after the "Tascón list", which included their names, was published and on the lack of explanation of the State regarding the motivation of such decision, among other elements of the relevant context In other words, because the applicants supported the call for a referendum to recall the President's mandate, their signature was perceived by their superiors as an act of disloyalty and the expression of an intolerable dissident political opinion or orientation. Therefore, the Court found that the State had not complied with its obligation to guar­antee, without discrimination, their right to political participation.

   

Conclusion: violation (unanimously).

 

Article 13 (1) (freedom of thought and expression) of the ACHR, in conjunction with Article 1 (1) of the ACHR: The Court held that signing the petition for a recall referendum constituted in itself to a form of political opinion. It is considered a manifestation of the need for a public consultation on the subject of public interest and on the possibility of revoking the President's mandate. For the Court, such manifestation was an exercise of freedom of expression.

 

The Court found that the applicants' dismissal had the veiled intention of deterring political dissidence, because it was used to provoke a chilling effect on political participation. Thus, the fact that they were subjected to political discrimination in retaliation for signing the petition for a recall referendum constituted a direct restriction on the exercise of their freedom of expression, which was not permissible under the ACHR.

 

Conclusion: violation (six votes to one).

 

Article 26 (right to work), in conjunction with Articles 1 (1), 8 (1), 13 (1), 23 (1) and 25 (1) of the ACHR: The Court asserted its jurisdiction, according to the ACHR and the principle jura novit curia, to analyze the impact on the applicants' labor rights. In this regard, the Court reiterated its position held in the case of Lagos del Campo v. Peru (see the ECHR Information Note 213) on the justiciability of economic, social and cultural rights as protected under Article 26 of the ACHR. The Court found a specific violation of the right to work, as a consequence of the arbitrary decision to terminate the applicants' contracts, the abuse of power, political discrimination and lack of access to justice.

 

Conclusion: violation (five votes to two).

 

Reparations - The Court established that the court constituted per se a form of reparation and ordered that the State: (i) adopt the necessary measures to avoid the relevant facts of abuse of power remaining unpunished; (ii) publish the judgment and its official summary; and (iii) pay compensation in respect of pecuniary and non-pecuniary damage.