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For the Constitutional Chamber, torture is an administrative act

AlertaVenezuela learned of a decision of the Constitutional Chamber of the Supreme Court of Justice (TSJ) dated July 27, 2023, regarding an amparo action presented by the lawyer of a detainee at the headquarters of the International Criminal Police Organization (INTERPOL) Parque Carabobo headquarters, Caracas, in which the violation of several rights is alleged, including the right to personal integrity. The amparo action had been presented on September 8, 2017, which represents a period of five years and ten months to decide on a request for amparo against allegations of torture.

As if the inconceivable delay was not enough, Judge Gladys Gutiérrez, current president of the TSJ and drafter of the ruling, alleges that she does not have jurisdiction to resolve the complaint, because, in her opinion, the official identified as responsible for the violation of rights of the detainee acted in administrative headquarters. The implausible reasoning deserves to be transcribed to avoid any doubt of interpretation:

The Chamber observes that the plaintiff lawyer focused her complaint on the violation of articles 43, 44, 45, 48, 59 and 60 of the Constitution of the Bolivarian Republic of Venezuela, which contemplate the right to life, to freedom and non-discrimination, since – as she stated – her client suffered cruel treatment while detained at the headquarters of the International Criminal Police Organization (INTERPOL), Parque Carabobo headquarters.

By virtue of the above, it is evident that the area in which the injuries were generated was administrative, due to the alleged violation of constitutional rights by Commissioner Gerardo Contreras, head of the International Criminal Police Organization (INTERPOL) headquarters. Parque Carabobo, reported by the actor, clearly falls within the conflicts subject to control by the Contentious Administrative Jurisdiction.

For Judge Gutiérrez, the reported torture is not criminal in nature nor is it a right protected by the constitution, because the “area” in which the violation occurred was administrative. Such reasoning not only leaves the affected person unprotected in this specific case, but also gives a dramatic turn to the protection of rights and the fight against impunity for several reasons.

Firstly, it implies removing the constitutional jurisdiction of the knowledge of amparos for the protection of the right to personal integrity, when the detainee is in administrative headquarters. In the case of Venezuela, according to the Venezuelan Prisons Observatory, while 32,000 prisoners are in prisons, 35,000 are detained in police headquarters. As if it was not enough to be in establishments that were not built to house people deprived of liberty, this decision could mean greater lack of protection for those detained in police precincts.

Secondly, the judge invokes the Organic Law of the Contentious Administrative Jurisdiction in her reasoning. If this is the rule to apply, the expiration criterion could be applied to sue against administrative acts which, according to article 32 of the same law, is 180 days. In this way, Gutierrez’s ruling would be going against article 29 of the Constitution, which establishes that serious violations of human rights are imprescriptible.

Thirdly, it is difficult to imagine what measure of protection and restoration of the violated right would be ordered by the National Contentious Administrative Court, which, according to Gutiérrez, would be the competent court to hear the case.

As Acceso a la Justicia has pointed out, “the Chamber does not mention the Special Law to Prevent and Punish Torture and Other Cruel, Inhuman and Degrading Treatment, which specifies that the active subjects are officials who, in office, threaten the integrity of people. under their custody” and the area of jurisdiction of these events is the criminal jurisdiction. The judge not only ignores the national law against torture, which specifies that torture is a crime – never an administrative offense – but her ignorance calls into question the effectiveness of the technical assistance technical assistance provided by the Office of the High Commissioner for the United Nations for Human Rights in Venezuela (OHCHR), which she so celebrates.

Complaining and supporting victims is hate

On the other hand, at the close of this analysis, AlertaVenezuela was aware of the opening of a criminal investigation against a former deputy from the state of Táchira who had accompanied a group of merchants in a complaint “for excesses committed by mayoral officials in the arbitrary eviction of merchants from the San Cristóbal Central Hospital.” The Public Ministry would have based the opening of the investigation on articles 20 and 21 of the “Law” against hatred “for supposedly fomenting, promoting and inciting hatred against these officials. Crimes punishable by imprisonment of 10 to 20 years.”

In this way, those who accompany victims of abuse by the State continue to be criminalized, applying draconian laws such as the “law” against hatred, while human rights violations continue to be protected with absolute impunity to avoid accountability. a government that has been provided with “technical assistance” on the matter since at least 2019. The only thing that exists is a disconcerting and increasingly dangerous paradox between the government’s discourse and its actions; paradox in the face of which the silence of the OHCHR is still observed.

AlertaVenezuela calls on the international community to continue expressing its support for the work of the Independent International Mission to Establish Facts about Venezuela and the process carried out by the Prosecutor’s Office of the International Criminal Court in the Venezuela I case. Facts such as these demonstrate the absence of political will to protect victims who, on the contrary, are exposed, increasing their risks and threats. Human rights cannot become a taboo in the midst of negotiations, nor can it be passively accepted that the government uses them for political and propaganda the presence of the OHCHR in the country. On the contrary, the recovery of democracy inevitably involves the full realization of human rights and the fight against impunity, beyond appearances.