Menu Close

When the law looks in the mirror of its own condemnation

After the approval in the first discussion of the draft Law against Fascism, Neofascism and Similar Expressions (PLCF), the Access to Justice association has made a set of considerations about it. We share a summary below as we consider it of interest to our readers. The full document can be consultedhere (in Spanish only).

  1. The project is not available on the National Assembly website

Although it has become a custom, this is not a justification for failing to comply with the constitutional obligation to publish bills so that citizens can participate in their discussion. The truth is that, in this bill, in which contemplates several types of crimes and criminal sanctions, the lack of an official text is particularly serious, which is why the comments we make are based on a document that has been distributed on social networks.

  1. Insistence on the invocation of human rights in an instrument for repression

It is striking that not only in this project, but in others of a similar nature, expressions such as “human rights”, “democracy”, “non-discrimination” or “full guarantee of due process and the right to defense” are repeated by of a State that is being investigated for the alleged commission of crimes against humanity by the Prosecutor’s Office of the International Criminal Court and indicated in the same sense by the Independent International Fact-Finding Mission for Venezuela of the Human Rights Council of the UN.

In fact, the constant invocation of democratic principles at a time when exactly what society is asking is to democratically elect its representatives continues to draw attention to the extent that serious irregularities in the election process are constantly reported, to the point that even governments that share their ideology with the Venezuelan have been forced to point out such abuses precisely because they go against those principles that are so invoked in the project.

  1. Apparent replication of previous repressive norms

Although it could be thought that this bill is nothing more than the reissue of the unconstitutional and arbitrary Law against Hate, in which it could perfectly be thought that fascism is included, since in fact this abominable political doctrine is the cause of one of the greatest tragedies of humanity, in reality this bill goes further than the Law against Hate for the following reasons: 1) it specifies particuar types of ideas to be prosecuted and which expressions of them are punishable, further limiting the already widely restricted freedom of expression in Venezuela; 2) establishes new types of penalties, including not only the sanction of disqualification from running for public office, but even the impossibility of holding office after the person is elected; and 3) adds new sanctioning bodies, granting, for example, party annulment powers to the National Electoral Council (CNE) and disqualification to the Constitutional Chamber of the Supreme Court of Justice (TSJ).

This new discourse also has ambitions beyond our borders and given that there is no longer the automatic solidarity of the governments of the Latin American left, it is now intended to create an international network against fascism (article 8), trying to create support, no longer because of common ideas, but because of a supposed common enemy

  1. The law is based on biased and erroneous concepts

The main problem with the law is how it conceptualizes what fascism is, and to this end we believe it is necessary to quote in full article 4, which tries to tell us what fascism consists of:

Ideological position or expression based on reasons of racial, ethnic, social or national superiority, which assumes violence as a method of political action, promotes the culture of death, denigrates democracy, its institutions and republican values and/or promotes the suppression of the rights and guarantees recognized in the Constitution in favor of certain sectors of society, for discriminatory reasons. Common features of this position are racism, chauvinism, classism, moral conservatism, neoliberalism, misogyny and all types of phobia against human beings and their right to non-discrimination and diversity.

The article begins with a link between the concept of fascism and violence and the culture of death, that is, with all that ideology that advocates actions aimed at these ends, which of course is condemnable, but from a generic condemnation it goes on to condemn. opinions, pointing out that fascism “denigrates democracy” and “its institutions.”

This begins a path of subjectivity that gives rise to a discretion that easily, we say with regret due to the experience of all these years, becomes arbitrariness, since any criticism of State institutions could be classified as denigrating and contrary to democracy, and from there, fascist, and therefore, nothing less than a crime that carries a sentence of 8 to 12 years (article 22.1).

Next, article 4, the object of this analysis, lists what it considers “the common features” of fascism and indicates that two of them are particularly delicate: moral conservatism and neoliberalism.

By considering, although wrongly, that neoliberal ideas are fascist, it has the following implications:

• The dissemination of neoliberal thought carries penalties of 6 to 10 years in prison (article 23).

• Organizations or associations dedicated to its study may be dissolved (article 14)

• Parties that profess the same ideas can be canceled by the CNE (article 15)

• The parties can then be dissolved by the Constitutional Chamber of the TSJ (article 16).

• Meetings called for supporters of these ideas are prohibited (article 12) and if they are only organized or convened, they can carry a sentence of 6 to 10 years (article 23.2).

We must note that all of these assumptions are also applicable to those who are considered followers of “moral conservatism”, for example, associations or parties that advocate the traditional family or other values that are considered “conservative.”

Finally, we cannot ignore what the aforementioned article says about what neofascism is, although it does not actually define it, since paragraph 2 of article 7 limits itself to indicating what should be considered “neofascism and similar expressions” without conceptualizing it: “Any ideological position or expression, regardless of its name, that totally or partially reproduces the “foundations” of fascism, which generates great imprecision that violates the principle of criminal typicity, which implies that the assumption of the sanctioning norm is clear and precise in its content, which does not happen with the use of phrases with “similar expressions”, which even ends up being an analogy to the detriment of the accused, which violates the principle of legality.

In conclusion, the statement of the law on what fascism is of such breadth that many sectors of current Venezuelan society can be considered fascists and, therefore, subject to persecution.

However, the most serious thing about the law is that it refers to indeterminate legal concepts that per se allow discretion, easily convertible into arbitrariness, which is not valid in criminal law, where the principle of typicality requires clarity of the attributable conduct.

Thus, the law locks down freedom of expression because any opinion can be considered by the authorities as fascism or any of the other related concepts.

  1. Creation of a new type of disqualification

Article 17 of the PLCF points out something that is already customary in Venezuelan laws: the accompanying of sentences restricting freedom with political disqualification usually established as an accessory penalty. But the PLCF not only prohibits someone who “incites” for fascist ideas from being eligible for elected office, but also includes a new assumption: that the alleged acts occur “before the election or access to public office.” , which implies that if, for example, it is declared that there was an “incitement” of fascist ideas after winning an election, said person will not be able to assume the position for which he was elected, which must be decided by the Constitutional Chamber of the TSJ.

  1. Establishment of a special aggravating circumstance for all types of crimes

Another novel element of this project is that it establishes, in article 24, that it will be an aggravating factor “for any punishable act”, this being that the same act is carried out “for fascist, neo-fascist or any other nature”, and that this implies, the direct imposition of the maximum penalty established for the criminal type.

If approved, this would make this norm complementary to laws of a similar nature, such as the unconstitutional Law against Hate, since in that case, if Article 20 of said law is applied, which establishes a penalty of 10 to 20 years for anyone who incites hatred, if it is considered that such an action was carried out for reasons considered fascist, the maximum penalty would have to be applied.

  1. New bans and sanctions on the media

The PLCF points out in its article 11 that “radio, television, electronic and printed media, public, private and community service providers, as well as social networks, must guarantee spaces free of any message of a fascist, neo-fascist ,anti-fascist or similar nature”, and according to the same article, this implies the prohibition of disseminating messages that “Denigrate democracy, its institutions and republican values” (section 3) which leads us to what was previously mentioned regarding which could be interpreted as applicable regarding to any criticism of the functioning of the institutions or the violations of human rights that they may carry out.

Likewise, the media are prohibited from advocating the principles of fascism, which brings us back to what the law considers as such and therefore the free interpretation that can be derived from conservative ideas or those linked to neoliberalism.

  1. New attack on freedom of association

Reiterating the criticisms indicated about the broadness of the concept of fascism, we have that this has serious implications for the freedom of association already mentioned with respect to political parties, since these can be canceled, and in relation to private organizations, they can be dissolved. or liquidated. Added to this is also the prohibition and sanction to establish new organizations with supposedly fascist ideas, establishing a sentence of 6 to 10 years for those who promote this type of organizations (article 23), in this regard we make considerations later, when talking about the criminal types.

The above also generates concern about the impossibility, if the project is approved, of forming associations with “morally conservative” ideas or those linked to neoliberalism, concepts that would be added to the records to form associations or foundations to the many that are already prohibited. facto, without a norm to support it (at least not public knowledge).

As if the above were not enough, we find that those who “finance or materially support” those who promote what is considered fascist are sanctioned with a fine between 50 thousand to 100 times the highest exchange rate of the Central Bank.

CONCLUSION

We must understand this regulatory proposal as a change in the existing sanctioning system. We are not in the presence of just another repressive law: it is a change in the Venezuelan criminal system, as large sectors of the population remain in a general situation of suspicion and therefore subject to a criminal trial.

This state of general suspicion aims to give a new profile to the internal enemy, although the victims are the same as always, that is, all of them are or are perceived as opponents.

Never before has a law been so similar to what it aims to combat.