5

Inter-American Court of Human Rights

Case of Perozo et al. v. Venezuela

Judgment of January 28, 2009

(Preliminary Objections, Merits, Reparations, and Costs)

In the case of Perozo et al. v. Venezuela,

The Inter-American Court of Human Rights (hereinafter, the “Inter-American Court”, the “Court” or the “Tribunal”) composed of the following judges:[1]

Cecilia Medina-Quiroga, President;

Sergio García Ramírez, Judge

Manuel E. Ventura Robles, Judge;

Leonardo A. Franco, Judge;

Margarette May Macaulay, Judge;

Rhadys Abreu-Blondet, Judge and

Pier Paolo Pasceri Scaramuzza, Judge ad hoc;

Also present:

Pablo Saavedra Alessandri, Secretary

Emilia Segares Rodríguez, Deputy Secretary,

Pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter, the “Convention” or the “American Convention”) and Articles 29, 31, 56 and 58 of the Rules of Procedure of the Court (hereinafter, the “Rules of Procedure”) delivers the present Judgment.

I

Introduction to the Case and Purpose of the Application

1. On April 12, 2007 in accordance with Articles 51 and 61 of the American Convention, the Inter-American Commission on Human Rights (hereinafter, the "Commission" or the "Inter-American Commission") submitted an application to the Court against the Bolivarian Republic of Venezuela (hereinafter, the "State" or "Venezuela") in relation to the case N° 12.442, originating in petition 487/03 forwarded to the Secretariat of the Commission on June 27, 2003 by Gabriela Perozo, Aloys Marín, Efraín Henríquez, Oscar Dávila Pérez, Yesenia Thais Balza Bolívar, Carlos Quintero, Felipe Antonio Lugo Durán, Alfredo José Peña Isaya, Beatriz Adrián, Jorge Manuel Paz Paz, Mayela León Rodríguez, Richard Alexis López Valle, Félix José Padilla Geromes, John Power, Miguel Ángel Calzadilla, José Domingo Blanco, Jhonny Donato Ficarella Martín, Norberto Mazza, Gladys Rodríguez, María Arenas, José Vicente Antonetti Moreno, Orlando Urdaneta, Edgar Hernández, Claudia Rojas Zea, José Natera, Aymara Anahi Lorenzo Ferrigni, Carlos Arroyo, Ana Karina Villalba, Wilmer Escalona Arnal, Carla María Angola Rodríguez, José Iniciarte, Guillermo Zuloaga Núñez and Alberto Federico Ravell. On February 27, 2004 the Commission adopted the Report on Admissibility N° 07/04, by which it admitted such petition. Afterwards, on October 26, 2006, the Commission adopted the Report on Merits N° 61/06 under the terms of Article 50 of the Convention, which made certain recommendations to the State.[2] On April 12, 2007, the Commission decided, under the terms of Article 51(1) of the Convention and 44 of its Rules of Procedure, to bring the case to the Jurisdiction of the Court, on the grounds that the "State did not adopt the recommendations made in [its] report". The Commission appointed Mr. Paulo Sergio Pinheiro, Commissioner, Mr. Santiago A. Canton, Executive Secretary, and Ignacio Álvarez, the then Special Rapporteur on Freedom of Expression as Delegates and Ms. Elizabeth Abi-Mershed, current Deputy Executive Secretary, Mr. Juan Pablo Albán Alencastro, Ms. Débora Benchoam and Silvia Serrano as legal advisors. Mr. Ariel E. Dulitzky and Mrs. Alejandra Gonza, who are not longer officers of the Commission, were also appointed as legal advisors.

2. The facts presented by the Commission referred to a series of actions and omissions which occurred between October 2001 and August 2005, consisting of statements made by public officers, acts of harassment and physical and verbal assault, as well as hindrance to broadcast, committed by State agents and private individuals, to the detriment of forty-four (44) people associated with Globovisión television station, among them, reporters, associated technical supporting staff, employees, executives and shareholders, and also to certain investigations and criminal proceedings initiated or conducted at the domestic level in relation to those facts.

3. The Commission asserted that the alleged victims were subjected to different attacks due to the fact that they sought for, received and imparted information and that the State did not adopt the measures necessary to prevent the acts of harassment, neither it investigated and punished the responsible with due diligence. The Commission requested the Court to declare that the State is responsible for the violation of the rights enshrined in Articles 5 (Right to Humane Treatment), 8 (Right to a Fair Trial), 13 (Right to Freedom of Thought and Expression) and 25 (Right to Judicial Protection) of the American Convention, in relation to the general obligation to respect and ensure the human rights embodied in Article 1(1) of said treaty, to the detriment of these forty-four alleged victims.[3] As a result of the above mentioned, the Commission requested to the Court that the State be required to take certain measures of reparation and reimburse costs and expenses.

4. On July 12, 2007 the representatives of thirty-seven of the forty-four alleged victims,[4] Mr. Carlos Ayala Corao and Mrs. Margarita Escudero León, Ana Cristina Núñez Machado and Nelly Herrera Bond (hereinafter, the “representatives”), submitted the brief containing pleadings, motions and evidence (hereinafter, “brief containing pleadings and motions”), under the terms of Article 23 of the Rules of Procedure. The representatives alleged that the facts of the instant case are such that constitute the “subject-matter of the case” as “a series of facts that are not included in the Commission’s application [which would] be directly related to the facts claimed to be in breach of the American Convention, [which] should be appraised [...] as part of the 'context' in which the facts contained in the application occurred or as facts that aggravated the [alleged] violations […]”. The representatives requested the Court to declare that the State is responsible, apart from the violations alleged by the Commission, for the violation of Article 21 (Right to Property) of the Convention, to the detriment of two shareholders of Globovisión, in relation to some facts that they alleged “have caused damage and have deprived the television station and its shareholders from the use and enjoyment of the equipment" of said station. Furthermore, they argued that the State has violated Article 24 (Right to Equal Protection) of the Convention, in relation to Article 13 therein, for alleged restrictions imposed on Globovisión journalist teams in order to access official sources of information. In turn, in the final arguments they requested the Court to declare that the State is responsible for the violation of Articles 5, 13, 8 and 25 "in relation to" Article 1,2 and 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Woman ("Convention of Belem do Pará"). Finally, the requested the Tribunal to order the State to adopt a series of measures of reparation.

5. On September 11, 2007, the State submitted a brief containing preliminary objections, the answer to the complaint and observations to the brief of pleadings and motions (hereinafter, “answer to the complaint”). In said brief, the State raised four preliminary objections, namely, “untimeliness in the filing of the arguments and evidence contained in the brief of pleadings, motions and evidence submitted by the [alleged] victims”, the “inadmissibility of the new arguments and allegations contained in the autonomous brief signed by the alleged victims”; the “prejudice in the roles played by some judges of the Court” and the lack of exhaustion of domestic resources. The State requested the Court to adjudge and declare that the alleged violations of the rights enshrined in Articles 5, 8, 13, 21, 24 and 25 of the Convention, attributed to the State by the Commission and the alleged victims, to be inadmissible and inexistent. Consequently, it requested the Court to reject the application and the autonomous brief of pleadings, as well as each one of the claims made and reparations requested. The State appointed Mr. Germán Saltrón Negretti as Agent and Mr. Larry Devoe Márquez as Deputy Agent.[5]

II

Competence

6. The Court has jurisdiction over this case in accordance with Article 62(3) of the American Convention, given the fact that Venezuela has been a State Party to the American Convention since August 9, 1977 and has accepted the binding jurisdiction of the Court on June 24, 1981.

III

Proceedings before the Court

7. On May 11, 2007 the Secretariat of the Court (hereinafter, “the Secretariat”), prior to a preliminary examination of the application conducted by the then President of the Court and in accordance with Articles 34 and 35(1) of the Rules of Procedure, notified, via facsimile, said application to the State[6] and the representative.[7] On that same day, the application was forwarded via courier together with the exhibits, which were received by the representatives and the State on May 14, 2007.[8] On June 29, 2007, the State appointed Mr. Pier Paolo Pasceri Scaramuzza as Judge ad hoc.

8. After the filing of the brief containing pleadings, motions and evidence (supra para. 4), on September 17, 2007, the representatives submitted a brief with "additional information to the autonomous brief of pleadings, motions and evidence" (infra para. 51 and 52).

9. Upon the filing of the brief containing the State’s response to the application (supra para. 5), on October 12, 2007, the then President of the Court issued a Decision by means of which he decided not to accept the State's request, filed as a preliminary objection, in order to exclude Judges Cecilia Medina Quiroga and Diego García-Sayán from hearing the case and he furthermore, submitted such decision to the full Court. On October 18, 2007, the Court issued an Order by means of which the State’s request of disqualifying Judges Cecilia Medina Quiroga and Diego García-Sayán from hearing the case was declared inadmissible and the Court accepted the self-disqualification of Judge García-Sayán (infra para. 35 to 37).

10. On November 15 and 16, 2007, the Commission and the representatives submitted, respectively, the written arguments to the preliminary objections raised by the State.

11. On March 18, 2008 the President of the Court ordered to receive the affidavits of fifteen people, and the expert opinions of six people proposed by the Commission, the representatives and the State, with respect to which the parties had the opportunity to submit observations. Moreover, the President of the Court convened the Inter-American Commission, the representatives and the State to a public hearing in order to listen to the statements of three witnesses and three expert witnesses proposed by the parties (infra para. 93), as well as the oral final arguments of the parties on the preliminary objections and possible merits, reparations and costs.[9]

12. On April 11, 2008, the representatives submitted “an objection or challenge” against one of the witness proposed by the State and on the 18th of that same month and year, the State submitted a “formal objection” against two persons proposed as expert witnesses by the representatives.[10] On May 2, 2008 the Court issued an order by which it dismissed the objection presented by the representatives against the witness and accepted the objection made by the State against the two persons proposed as expert witnesses.

13. On May 7 and 8, 2008 the Court held the public hearing during its LXXIX Period of Sessions at its seat.[11]

14. On May 28, 2008 the Secretariat, following the instructions of the President and in accordance with Article 45(2) of the Rules of Procedure, requested the parties to refer to some of the issues of the written final arguments.[12] Moreover, under the terms of Article 45(1) of the Rules of Procedure of the Court, the State was requested to present a complete and specific report on the investigations related to this case.[13]

15. On June 9, 2008 the Commission, the State and the representatives submitted, respectively, their final written arguments on the preliminary objections and the possible merits, reparations and costs. On July 18, 2008, the representatives filed the brief of “observations to the final written arguments presented by the […] State” (infra para. 53).

16. On July 25, 2008, following the instructions of the President, the parties were notified that in paragraph 362 of the application, the Commission requested the Court to incorporate to the case file of these proceedings “a copy of all the proceedings related to the provisional measures ordered by the Inter-American Court in favor of the reporters, executives and other employees of the Venezuelan television station, Globovisión”. Following the instructions of the President, the representatives and the State were requested to submit, no later than August 1, 2008, the observations they consider appropriate to the request made by the Inter-American Commission. The Court did not receive any observation in such regard.

17. On December 4, 2008 the representatives of the allegad victims informed on an allegedly "new administrative sanction procedure [initiated by the National Telecommunications Commission (CONATEL)] against Globovisión”. The Secretariat informed the parties, following the instructions of the President, that said brief would be brought to the attention of the full Court and that its admissibility and legal basis would be resolved in time fashion (infra para. 54).

18. On January 16, 2009 the Secretariat informed the parties that, under the terms of Article 45(1) of the Rules of Procedure, certain domestic laws presented by the State in the case of Ríos v. Venezuela would be admitted into the body of evidence and the parties were granted the possibility to present observations thereto (infra para. 111). On that same day, the representatives filed a brief by means of which they informed about an alleged attack against reporters, executives and employees of Globovisión and requested the Tribunal to “take into account these serious acts at the moment of render a judgment in this case". On January 26, that same year, the parties were informed on the fact that the brief would be brought to the attention of the full Court, for all relevant legal purposes, and that the admissibility and legal basis of such brief would be resolved in time fashion (infra para. 55).

19. Furthermore, the following organizations, entities and institutions filed briefs as amici curiae: On April 25, 28 and 30, 2008 the non-governmental organizations “Asociación Internacional de Radiodifusión-AIR” and the “Observatorio Iberoamericano de la Democracia”, the “Colegio Nacional de Periodistas” of Venezuela and the National Union of Journalists of Venezuela (SNTP), respectively; on May 2, 2008 the organization “Sociedad Interamericana de Prensa”; on May 6, 2008 the “Universidad Católica Andrés Bello” and the “Institute of Legal Defense-IDL”; on May 7 and 30 and on June 2, 2008, the “Asociación de Radiodifusores de Chile- ARCHI”, the "Association of the Bar of the City of New York” and the “Netherlands Institute for Human Rights- SIM” and on July 29, 2008 the “Cámara Venezolana de la Industria de la Radiodifusión”.