COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORTS OF VENEZUELA

The Committee on the Elimination of Racial Discrimination has considered the fourteenth to eighteenth periodic reports of Venezuela on its implementation of the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.

Introducing the report, Raquel Poitevien Cabral, Deputy Permanent Representative of the Permanent Mission of Venezuela to the United Nations Office at Geneva, said that Venezuela had undergone profound changes since 1999 with the adoption of a new Constitution. This had changed the very philosophical and institutional basis of the State, and had allowed Venezuela to meet the challenges of the twenty-first century and to ensure a country where peace, justice and prosperity were a reality for all citizens.

In preliminary remarks, Alexei S. Avtomonov, the Committee Expert who acted as country Rapporteur, said the interactive dialogue that had been held had been very interesting, and very intensive, and had contributed greatly to having a better understanding and assessment of the situation in Venezuela, and of the status of the State party’s obligations under the Convention. The Committee was not a court, but rather a body which had been established to help States parties to the Convention to implement the obligations that they had entered into by ratifying the Convention. He thanked the delegation for the sincere attitude of its members, and for the additional information that they had prepared and provided to the Committee. It had been very interesting, informative, and comprehensive.

In the course of the discussion, which lasted over two meetings, Committee Experts raised such questions and issues as whether there was an increased consciousness among Venezuelans of African descent of their history and culture; had legislation been adopted that would put further into effect the recommendations of international bodies; the reasons why the Human Rights Commission had not yet fully started its activities; measures taken to punish those guilty of racial discrimination and the need for more complete statistics in the next report as well as more concrete examples of judgements against them; the need for more information in the next report on black communities and the need for disaggregated data on poverty in this context; and what difficulties had been encountered when implementing the new laws on racial discrimination. An interactive dialogue with a slide-show was used to respond to these questions and others, during which Experts asked further questions and made comments, including commending the replies given.

The Committee will present its concluding remarks on the reports of Venezuela towards the end of the session, which will end on 19 August 2005.

The delegation of Venezuela included representatives of the Ministry of External Relations, the Ministry of the Interior and Justice, the National Institute of the Woman, the Ministry of Education and Sports, and the Ministry of Communication and Information.

The Committee will reconvene at 3 p.m. on Wednesday 3 August when it will begin its consideration of the second and third periodic reports of Georgia (CERD/C/461/Add.1).

Reports of Venezuela

The fourteenth to eighteenth periodic reports of Venezuela (CERD/C/476/Add.4) state that Venezuela guarantees every person, in accordance with the principle of progressivity and without any discrimination, the irrevocable, indivisible and interdependent enjoyment and exercise of human rights. Respect for and guarantees of these rights are mandatory for public bodies in accordance with the Constitution, the human rights treaties signed and ratified by the Republic and the laws giving effect to them.

All persons are guaranteed equality before the law, and no discrimination on grounds of race, sex, belief or social status or any other discrimination is permitted which impairs the enjoyment or exercise, in conditions of equality, of the rights and freedoms of any individual, as stipulated in article 21: “No discrimination on grounds of race, sex, belief or social status shall be permitted, or any other discrimination which in general has as its aim or effect the denial or impairment of the recognition, enjoyment or exercise, in conditions of equality, of the rights and freedoms of any individual.”

Venezuela has made significant progress in the area of government policy, placing special emphasis on the elimination of racial discrimination from the moment the current President, Hugo Rafael Chávez Frías, took office in 1999; it was in that year that the Constituent Assembly, in consultation and cooperation with the citizenry at large, produced a draft constitution that, for the first time in Venezuela’s political history, was adopted by the people, in a referendum held on 15 December 1999, as the Constitution of the Bolivarian Republic of Venezuela. In this new legal order, human rights are given constitutional rank under the highest law in the land: the preamble to the Constitution establishes the universal principles that should govern the Republic, guaranteeing the universality and indivisibility of human rights. Respect for and guarantees of these rights are mandatory for public bodies in accordance with the Constitution, the human rights treaties signed and ratified by the Republic, and the laws through which these are applied.

Introduction of Reports

RAQUEL POITEVIN CABRAL, Deputy Permanent Representative of the Permanent Mission of Venezuela to the United Nations Office at Geneva, introducing the report, said that Venezuela had undergone profound changes since 1999 with the adoption of a new Constitution. This had changed the very philosophical and institutional basis of the State and had allowed Venezuela to meet the challenges of the twenty-first century and to ensure a country where peace, justice and prosperity were a reality for all citizens.

Discussion

Replies by Delegation

Responding to written questions sent in advance, the delegation of Venezuela said regarding the ethnic groups in the country and which languages were spoken, the last census, dating from 2001, gave information on both indigenous communities and persons of African descent. The population was made up of over 24 million inhabitants, of which 11 million were men, with 43 per cent of the population under 18 years of age. There was a mixture of origins, including indigenous, European, Asian, and persons of African descent. Indigenous persons had their own culture and language, and there were up to 34 different indigenous groups. Indigenous languages could be officially used by indigenous persons, but the official language according to the Constitution was Spanish. Venezuela had a multicultural and multiethnic society, with constitutional recognition of the fight against discrimination on the grounds of race, gender, origin, disability, or any other grounds aimed at limiting and undermining the equal enjoyment of human rights, and this was present throughout the Constitution. The law allowed measures to be taken to protect those who could be considered vulnerable.

The Constitution of 1999 was available all over the country in such a manner that citizens could consult it easily to determine whether their rights were being infringed. It was a Constitution that gave status to all human rights contained in human rights treaties ratified by Venezuela, and these were all backed up by effective laws, as were other provisions, such as those ensuring the participation of the young in society. In order to try to guarantee the rights of the indigenous communities to use their language, laws had been passed to ensure that the use of indigenous language in indigenous communities was mandatory. Other measures also guaranteed the rights of the indigenous.

Venezuela was the country in the American hemisphere with the most favourable conditions for asylum-seekers and refugees. It had carried out a census of clandestine persons in the country who had been there for 20 or 30 years and had families there. Many were naturalised and were now full citizens of the country. Regarding people of African origin, the Constitution enshrined the principle of equality without discrimination, and all persons were equal before the law. The State had demonstrated political will, upholding the mandate of the Constitution and upholding various measures to protect the communities of those of African origin.

Regarding separate prisons for members of indigenous communities, there were no such prisons, the delegation said, and the law did not discriminate specifically against indigenous persons, rather to the contrary, it tried to ensure that prisons stressed rehabilitation. All prisoners were treated equally, however, in the visits made by the Human Rights Commission of the Ministry of the Interior and Justice, indigenous prisoners had been noted to group together. Prisons allowed forms of organization which were specific to indigenous communities, respecting their rights to cultural expression, such as common dormitories. This helped indigenous prisoners, and could take place for humanitarian reasons. Indigenous peoples had particular rights, and there was a Prosecutor specialised in indigenous issues who was familiar with their rights.

Internal laws had been adopted in the Criminal Code, and further reform was being studied, the delegation of Venezuela said. The current code demanded respective recourse, and the idea was to punish racial discrimination with appropriate measures when incidents came to light. Recently, measures could be used to punish incidents of incitement to racial discrimination through the media; individuals or groups who tried to undermine the freedom of worship were also sanctioned and punished; and the dissemination of information that could give rise to discrimination could be punished through laws on the media.

All persons of indigenous descent or African origin were part of Venezuelan society. All citizens were equal before the law, the delegation said. The report stressed racial discrimination, but the Constitution addressed discrimination in a broader sense, including all kinds of violations of human rights, and this was the very broadest meaning of discrimination. All citizens had the right to participate in drawing up and implementing public policies. Citizens were protagonists in state life, and this was a joint responsibility between the State and society. Efforts were also being undertaken to eliminate all incidents of police impunity.

Venezuela was involved in a process in which it was trying to re-establish the Republic, and so it was having a very wide-ranging debate on adopting new laws and bringing existing laws into harmony with the 1999 Constitution. Indigenous communities had the right to be fully involved in political life. When the Constitution was adopted, three indigenous representatives took part in the process. Regarding the representation of people of African descent, these were of course entitled to participate in the workings of the State, and the Government had adopted policies to encourage their participation, but there had been some discrimination, and this continued to act as a barrier. There was therefore a need to continue with the reforms, and to go further in changing the culture of the past.

The Minster of Education had a flag-ship plan to recognise inter-cultural education, and this was being implemented in schools, the delegation said. Today, the law on land and agrarian reform was being followed, and the legal framework was designed to distribute land on the principle of equality. A plan had been created to ensure food security, and for the State to compensate for such risks as pests. This was a fundamental part of the economic strategy, and the slogan was "no more useless land". The State was also establishing measures regarding the debt of the African descent population and the land issue.

The Constitutional rights and guarantees for the human person ensured that victims had all possible access to restoration of their rights, the delegation said. Any right could be violated, and therefore it should be protected. Regarding the Ombudsman who could receive complaints and allow investigation, conciliation and judicial action, statistics in 2003 and 2004 showed the measures taken and the number of actions and mediations regarding human rights issues, there were clear figures available.

Regarding the previous recommendations made by the Commission, the various national organizations had been answered and the various bodies concerned had been contacted. The recommendations had been translated into indigenous languages, and it was felt, the delegation said, that they had been distributed widely. The Constitution, which would be available in five different indigenous languages at the end of August 2005, would also be widely distributed. Convention 169 of the ILO was also being translated.

Questions and Comments by Committee Experts

ALEXEI S. AVTOMONOV, the Committee Expert serving as country Rapporteur, said the sincerity and the openness in the dialogue between the Committee and Venezuela was impressive, and the quality of the response to the questions was also impressive. The report expressed very well the improvements and modifications made at the legislative level in Venezuela. The creation of the Ombudsman’s Office was a new thing. Given the Constitution of 1999, this allowed for better understanding of the legislative framework and the obligations taken on by the State by the ratification of the Convention on the Elimination of All Forms of Racial Discrimination. It was very positive that Venezuela had made a Declaration under article 14 of the Convention, and this was an important step in upholding the situation of human rights in the country and to uphold the work of the Committee. Among the questions he asked was what was Venezuela’s position on joining and ratifying UNESCO’s Convention on Education.

Other Committee Members also asked questions and made comments, including on such topics as whether there was an increased consciousness among Venezuelans of African descent of their history and culture; what the concept of inter-cultural education implied; had legislation been adopted that would put further into effect the recommendations of international bodies; the reasons why the Human Rights Commission had not yet entered fully into its activities; measures taken to punish those guilty of racial discrimination and the need for more complete statistics in the next report as well as more concrete examples of judgements against them; the need for more information in the next report on black communities and the need for disaggregated data on poverty in this context; and what difficulties had been encountered when implementing the new laws on racial discrimination.

Response by Delegation

Responding to these questions and others, the delegation of Venezuela, in the course of an interactive dialogue based around a slide-show in Spanish during which Experts freely interrupted to ask questions, said on a question regarding the definition of racial discrimination, the Constitution established a legal definition and various laws developed the concept of prohibiting racial discrimination, namely the Organic Laws on Education, Health, Employment, Health, Media, and others, all of which prohibited completely all forms of discrimination on any grounds including race or social origin of the person involved. From the point of view of jurisprudence and case law, this had established the criteria according to which it was determined whether discrimination had taken place, and this was very similar to that used by international treaty bodies and the Inter-American Court of Human Rights. Basically, if treatment was unequal, this was prohibited, unless it had a rational basis and if certain criteria were fulfilled. Unequal treatment in the light of equal situations was prohibited.

Protection mechanisms for human rights in the country included the Ombudsman, and the delegation explained exactly what the role of this entity was, including the development of communication links with public bodies to develop policies ensuring the protection of human rights in the country. The report of the Ombudsman noted that very few people submitted complaints on racial discrimination in the country, and this was due to a perpetuated myth that there was no racial discrimination in the country, which caused many to lack the sense that they were suffering from racial discrimination. However, the number of complaints of racial discrimination had increased over the last period.

In reply to a question by an Expert on what options were open to victims of racial discrimination, the delegation explained the role of the People’s Defender’s Office. Cases received had shown that most of the decisions of the People’s Defenders Office had been negative, showing that no real cases of racial discrimination had taken place. The right to reparation and compensation in the country was of a constitutional nature, and enshrined therein. The right to compensation and reparation was also considered a human right in itself. Experts asked further questions on the process of a complaint through the judicial system, to which the delegation responded, giving concrete examples.

Regarding international conventions, including the convention on fighting discrimination in the educational sphere, many had been ratified, and had inspired national laws and Venezuela was holding talks with various international actors in order to further support human rights in the country. On the hierarchy for the interpretation of human rights and the provisions of the Constitution regarding human rights, the delegation explained that it was important to take into account the inertia of the old political system; however, the hierarchy was first human rights as enshrined in the Constitution, the rights of the person, and then self-executing rights. Treaties, covenants and conventions relating to human rights which had been signed and ratified had Constitutional standing, and prevailed in the internal system providing they contained norms that were more favourable to the individual than those contained in the Constitution and other documents of the Republic.

The principle of equality was always the prime consideration, and this was not just a formal right, as there was constant vigilance to ensure that this right and principle was applied. The laws of the country particularly protected those who might be ill-treated or abused, and ensured that all could express themselves freely, including in writing. An Expert commented that all Constitutions spoke of the principle of equality, and what was mainly interesting was cases of violation of this principle in the Constitution, and asked what was exactly the punishment imposed on those who violated the Constitution in this regard. The delegation responded that while all Constitutions contained equality as a principle, the case of that of Venezuela contained it in a different degree, as it recognised it as a positive right that should be realised, and this freedom was backed up by formal measures aimed at guaranteeing it. The legal system was being adapted to this effect. Acts of racial discrimination and those who carried out discriminatory practices were punished with imprisonment of no less than a certain period, and a fine of a certain quantity of tax units.

The Government was determined to ensure that all the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination were implemented, and that there was absolutely no form of discrimination in or by any State body, the delegation said. Regarding issues related to persons of African descent, measures were being carried out to ensure the recognition of communities of persons of African descent. There were Afro-Venezuelan organizations that had cooperated with the Government in implementing a series of measures responding to the needs of this section of the population, and there had also been an attempt to draft public policies protecting their rights. There was a National Day for Afro-Venezuelans on 10 May every year, and the first had taken place this year. This had the aim of recognising heroes of African descent and their historical resistance, and their contribution to the Venezuelan nation.

An Expert commented on the positive step forward represented by this National Day, and asked if such a day existed to recognise the indigenous peoples. The delegation responded that 12 October had been until recently the Day of Race or the Day of the Spanish Discovery of America. In 2002, this had been changed, and instead the celebration commemorated the day as the Day of Indigenous Resistance, in recognition of the affirmation of the identity of all as Venezuelans and Americans, and as a celebration of the human and cultural diversity of the countries of South America. It was intended to develop this in a more global sense in the future.

An Expert then pointed out a contradiction between what had just been said that people were not divided on ethnic or racial grounds in the census, but the slide-show had earlier shown this division. He asked firstly if the refusal to have disaggregated data was just because it had not yet been implemented, or whether it was the result of a political decision; and secondly whether the 67 per cent of mixed-race people were classed as mixed-race or as black or white, as in Latin America many were mixed-race, and yet still classified as black or white. Replying to this, the delegation said it was important to note that there was a certain ideology of Hispanic mixed-race, which had always had an impact, and not only in Venezuela. The Constitution of Venezuela stated that it was a multi-ethnic and multicultural society, and on that basis it was a participatory democracy. It aimed to promote unity in diversity. There were bodies which were discussing the issues linked to the census and the ethnic groups contained therein.

In response to a question by another Expert on the integration of indigenous peoples into the mainstream life of the nation, the delegation said that there were close links between all parts of society, and that there were also various institutional bodies which aimed at promoting links between indigenous communities and persons and with the rest of society. It was recognised that indigenous peoples helped make up part of the identity of Venezuela. There were educational cultural exchanges between society and both indigenous peoples and persons of African descent. Multiculturalism was understood to be peaceful co-existence in a geographic setting, but Venezuela advocated inter-culturalism as this promoted fruitful interaction between cultures.

Regarding the National Human Rights Commission, and why it had stopped working, the delegation said that Commission had originally been established in 1996, with one of its first functions being to adopt a National Human Rights Plan. Three years later the new Constitution was approved, and the Government had been restructured to adapt institutions to the new approach. The Commission had thus stopped functioning because it had become obsolete. The main prerogatives of the Commission were inherited by the People’s Defenders Office, and it had taken over most of the functions of the National Human Rights Commission. If the Venezuelan State decided to re-establish and relaunch the Commission, it would have to take the new structure into account, and it would probably become only an advisory structure to the Executive Branch of the Government.

On a question on jurisprudence regarding indigenous rights, there was a remedy which aimed at guaranteeing the effective realisation of all rights enshrined in the Constitution. In Venezuela, this remedy had been of great utility in developing judicial protection, and it was both swift and effective. The delegation also elaborated on two incidents when this remedy was applied, and the form of compensation that had been adjudged.

Commenting that the replies were very interesting, Committee Experts asked questions on whether Venezuela was considering developing a human rights impact assessment concerning indigenous peoples, as this was something that was being developed in various contexts; and regarding the statement in the report that indigenous peoples could go through their own traditional judicial system, what kind of remedies could be used in this context. Answering these questions, the delegation said indigenous peoples whose lives, culture and environment had been affected had various recourses, including the courts, which would assess the impact on their rights and make an appropriate judgement, which would be followed-up by the appropriate bodies, including the Ombudsman.

A human rights assessment, the delegation said, addressed the wide range of rights, including economic, social and cultural rights. The rights of indigenous peoples had been studied in a multi-disciplinary study, called an environmental assessment impact, although it examined the wider range of rights as mentioned earlier. The Constitution did provide for special courts when indigenous peoples had conflicts within their own communities. For cases outside the community, the Constitution also provided for special courts, with precise regulations. All cases connected with conflicts between indigenous communities and other sections of society were regulated by common law. A group of Prosecutors with specialisation in indigenous issues had been organised, and these had a good awareness of indigenous issues. Judges assigned to indigenous areas also usually had good knowledge of indigenous issues. In indigenous courts, there was also an indigenous ombudsman, who was from an indigenous community, was a specialist in local culture and could address courts directly. In judgement, alternatives to imprisonment were preferred for indigenous cases.

Experts asked final questions, including whether there was a facility for historical redress for dispossession of indigenous lands; the role if any of religious missions in Venezuela; and whether the Government had any statistics on the imprisonment rate and the number of detainees belonging to indigenous communities and African descent communities, as this would be very useful to the Committee. An Expert also commended the inclusion in the report of the meaning of equality as defined by Venezuela and applied in practice. The delegation responded briefly to these questions, noting that the report contained information on historical religious missions aimed at proselytising among indigenous communities, and noted that today there was still a concordat between the Catholic Church and the Venezuelan State, and there was a law on missions governing the activities of religious missions and placing restrictions on these, although these were not applied, and some would be nullified, abrogated, and replaced, and this process was underway.

Preliminary Remarks

ALEXEI S. AVTONOMOV, the Committee Expert serving as country Rapporteur, said it was his opinion that the interactive dialogue that had been held had been very interesting, and very intensive, and had contributed greatly to having a better understanding and assessment of the situation in Venezuela, and of the status of the State party’s obligations under the Convention. He stressed that it was very important to re-establish dialogue. The Committee was not a court, but rather a body which had been established to help States parties to the Convention to implement the obligations that they had entered into by ratifying the Convention. He thanked the delegation for the sincere attitude of its members, and for the additional information that they had prepared and provided to the Committee. It had been very interesting, informative, and comprehensive.