On Saturday, January 12, William Echarry (70 years old) and Ramón Blanco (66 years old), members of the MOVER organization, were in the town of Macuto (former Vargas state, renamed La Guaira), putting up a banner that read “Venezuela asks for justice, out Maduro”. When unfurling the banner, they were detained by agents of the Vargas state municipal police and brought before a court on charges of “incitement to hatred and conspiracy.”
Both activists were brought before the First Control Court in La Guaira, which issued a custodial order, imposing the El Rodeo prison as a place of detention, but they were kept in the police cells, because there was no space in El Rodeo.
The court’s decision ignored article 231 of the Organic Code of Criminal Procedure, which establishes that “preventive judicial deprivation of liberty of persons over seventy years of age may not be decreed (…). In these cases, if some precautionary measure of a personal nature is essential, house arrest or confinement in a specialized center will be ordered. In this way, and against the norm, Echarry and Blanco become the most recent political prisoners and perhaps the oldest.
The so-called “Constitutional Law against hate, for peaceful coexistence and tolerance”, published in Official Gazette No. 41,274 of November 8, 2017, has had problems since its inception. In the first place, this norm, mistakenly called “constitutional”, was promulgated by an unconstitutional body, such as the National Constituent Assembly imposed by Nicolás Maduro, without complying with the procedure established by the Constitution for this type of initiative. Second, since it has not been elaborated, discussed, and approved through the process of construction of laws, nor within the legislative body, which is the National Assembly, it lacks the formalities of a “law”, as established by the Inter-American Court on Human Rights in its Advisory Opinion No. 6/86 on “The expression ‘Laws’ in Article 30 of the American Convention on Human Rights”. Thirdly, it is a legal device that seeks to regulate and restrict rights, a function that can only be exercised by the National Assembly.
Beyond the disrespect for formalities, which is not a small thing, it is a rule openly aimed at punishing opponents. The official press release indicates that the so-called law “has as its main objective to stop the campaign of hatred and violence promoted by extremist sectors of the opposition and to seek the reunion, reunification, harmony and peace of all Venezuelans” (bold added). In other words, it is not a law that is applied in a general way, but rather its purpose is to neutralize content issued by a sector of the population that is considered to be in extreme opposition.
Thus, article 20 establishes: “Whoever publicly (…) incites hatred, discrimination or violence against a person or group of people due to their real or presumed membership in a certain social, ethnic, religious, or political group (…) will be punished with 10 to 20 years in prison”. As if this criminalization of speech was not enough, the norm issues a warning to the officials in charge of enforcing the law, by stipulating sentences of 8 to 10 years in prison for the police and military who do not prosecute these alleged hate crimes.
According to Espacio Público: “Since 2017, at least 45 cases have been registered in which the “law against hate” was used or invoked against people for expressing themselves; this led to a total of 101 violations of freedom of expression and opinion. The year with the highest number of cases was 2020 with 21, the second is 2018 with 13 cases, the third is 2019 with 10 and 2017 with one case. The most common type of violation was judicial harassment in 42 opportunities, followed by 36 arrests and 10 censorship actions.
Espacio Público recalls that among the victims of this censorship rule are human rights and religious organizations, adolescents, firefighters, journalists, and musicians. Most of the “crimes” prosecuted have been manifested in social networks.
We must insist that, due to the illegality and unconstitutionality of this rule, as well as its attempts to restrict speech, all arrests that occur in application of this instrument are, by definition, arbitrary arrests and should be understood as such by national and international organizations. Consequently, those who have given the orders for these arrests from the Public Ministry, and the judges who have instructed judicial proceedings based on this “law”, are responsible for human rights violations and -at least- for the crimes of arbitrary detention and persecution, which are being investigated by the UN International Independent Fact-Finding Mission on the Bolivarian Republic of Venezuela and the International Criminal Court.
There is no hate in a banner, but in those who pursue free expression.