Global Freedom of Expression

Apitz Barbera v. Venezuela

Closed Expands Expression

Key Details

  • Mode of Expression
    Public Speech
  • Date of Decision
    August 5, 2008
  • Outcome
    Violation of a Rule of International Law, ACHR or American Declaration of the Rights and Duties Violation
  • Case Number
    Serie C No. 182
  • Region & Country
    Venezuela, República Bolivariana de, Latin-America and Caribbean
  • Judicial Body
    Inter-American Court of Human Rights (IACtHR)
  • Type of Law
    International/Regional Human Rights Law
  • Themes
    Political Expression
  • Tags
    Public Officials, Judiciary (protection of) / Contempt of Court

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Case Analysis

Case Summary and Outcome

The Inter-American Court of Human Rights declared the State of Venezuela responsible for various violations of the right to a fair trial enshrined in Article 8 of the American Convention on Human Rights to the detriment of Juan Carlos Apitz Barbera, Perkins Rocha Contreras and Ana María Ruggeri Cova. The victims in this case were removed as judges of the Corte Primera de lo Contencioso Administrativo [First Court of Administrative Disputes] on the grounds that they had “committed an inexcusable judicial error when they granted a precautionary amparo [protection of constitutional rights] that suspended the effects of an administrative act which denied a request for registration of a property sale” [p .2]. Their removal was ordered by the Commission for the Functioning and Restructuring of the Judicial System (“CFRJS”), a provisional disciplinary body created by the State during a constitutional transition process. In considering the arguments raised regarding lack of independence and, in particular, the alleged causal relationship between various statements made by the President and senior government officials and the resulting disciplinary process and subsequent removal of the judges, the Court referred to certain restrictions to which State authorities are subject in the exercise of their freedom of expression to prevent the violation of fundamental rights or judicial independence.


On September 12, 2000, the Plenary Chamber of the Supreme Court of Justice appointed Ana María Ruggeri Cova, Evelyn Margarita Marrero Ortiz, Luisa Estela Morales, Juan Carlos Apitz Barbera and Perkins Rocha Contreras as Judges of the First Court of Administrative Disputes (the “First Court”) on a provisional basis. 

On June 11, 2002, the First Court declared admissible a precautionary amparo [protection of constitutional rights] and admitted an administrative appeal for annulment, both brought against the refusal of a Public Registrar to register a property deed. On October 8, 2002, the Registrar’s Office asked the Chamber for Political and Administrative Matters (“CPAM”) of the Supreme Court of Justice to hear the case related to the precautionary amparo, which had previously been declared admissible by the First Court, by invoking the so-called avocamiento mechanism. Avocamiento is a special constitutional mechanism that, in cases where there is a public interest at stake, allows the superior court to hear and decide a case over which the lower organ or court would normally have jurisdiction. 

On June 3, 2003, the CPAM declared the judgment of the First Court to be null and void and established that it had committed a serious and inexcusable legal error by not declaring the precautionary motion inadmissible. In its decision, the CPAM ordered its judgment to be referred to the Inspectorate General of Courts (“IGC”), the body responsible for inspecting and overseeing the courts, and ordered disciplinary proceedings to be brought against the judges and other court officials. 

Decision Overview

The central issue in this case was the causal link between the statements made by the Venezuelan President and senior government officials and the resulting disciplinary process and subsequent removal of the victims in the case. In particular, this issue was addressed as part of the Court’s assessment of the allegations of lack of independence of the judicial disciplinary body, in this case the CFRJS.

The Inter-American Commission on Human Rights indicated that the removal lacked independence and impartiality and that this was the result of a “misuse of power” originating in the causal relationship between the statements of the President and senior government officials concerning decisions that went against government interests. In other words, the disciplinary process was seemingly motivated by the adverse reactions of those officials to several previous decisions of the First Court.

The victims’ representative alleged that the CFRJS was used by the government to interfere with the independent exercise of judicial powers as the government was unable to control the First Court’s rulings and decided to find a way of removing the judges. Accordingly, the representative argued that the CFRJS simply executed the orders given, tacitly or expressly, by the President. Additionally, as evidence of the misuse of power, both the Commission and the representative mentioned the circumstances surrounding the criminal investigation into the removal of a file from the First Court, which had led to a search lasting more than six hours conducted by more than 46 officers of the General Directorate of Intelligence and Prevention Services, armed with long guns.

On October 23, 2003, the Criminal Cassation Chamber of the Supreme Court of Justice invalidated the investigation into the removal of the file from the First Court as it did not meet the requirements of a crime and was a common practice in Venezuelan courts. However, after this decision, on October 26, 2003, the President of Venezuela suggested that most of the [First Court] judges had sold out to the interests of the opposition and that the police had apprehended the chauffeur of one of the judges, who had stolen the file in order to deliver it to the attorneys of a defendant who was himself a member of the opposition.

In this context, the Court held that the exercise of freedom of expression by State authorities is not only legitimate, but, at times, the State authorities have a duty to speak out on public-interest matters. However, the Court established that in exercising this right, the authorities: 

“[A]re subject to certain restrictions such as having to verify in a reasonable manner, although not necessarily exhaustively, the truth of the facts on which their opinions are based, and this verification should be performed according to a higher standard than that followed by private individuals, given the high level of credibility the authorities enjoy and with a view to ensuring that citizens did not receive a distorted version of the facts” [p. 131].

The Court further emphasized that when exercising this right, public officials should bear in mind their position as guarantors of fundamental rights and, as such, their statements cannot disregard those rights. Likewise, the Court held that public officials, particularly top government authorities, need to be especially careful so that “their public statements do not amount to a form of interference with or pressure impairing judicial independence and do not induce or invite other authorities to engage in activities that may abridge the independence or affect the judge’s freedom of action [p. 131].

The Court determined that the criminal proceeding, the disciplinary investigation and the precautionary measure of suspension imposed against the judges were not only excessive but also, together with the statements made by the highest government authority, constituted intimidating conduct upon the judges of the First Court [p. 132]. Therefore, the Court considered that although in this case it was not demonstrated that the CFRJS had misused its power, acting under the direct pressure exerted by the Executive Branch to remove the victims, “…due guarantees were not provided to ensure that the pressures to which the First Court was being subjected would not influence the decisions of the disciplinary organ”, hence the State violated Article 8(1) of the Convention on the right to a fair trial and the independence with which victims should be judged [p.147]. It concluded that the State violated Articles 8(1) (reasonable time) and 25(1) of the Convention by failing to provide the victims with prompt, simple and effective recourse, on the basis that the amparo action brought by the First Court judges took around 256 days to be resolved.  

Finally, the Court did not find a violation of Articles 23 (Right to Participate in Government) and 24 (Right to Equal Protection) of the Convention and dismissed the claims filed by the victims to that effect. The same applies to the arguments related to Articles 29(c) and 29(d) (Restrictions Regarding Interpretation) of the Convention presented by the representative, which were also rejected by the Court. 

Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

In this decision, the Inter-American Court of Human Rights recognized the legitimacy of the exercise of freedom of expression by public officials and deemed that this may even be a duty in the case of public-interest matters. Nonetheless, the Court weighed up the special position of public officials as guarantors of fundamental rights, as well as the possible impact of their public statements on judicial independence and the Court therefore identified certain restrictions that must be observed in the exercise of their freedom of expression. Although the case does not argue a violation of Article 13, the Court’s reasoning in this decision represents an important standard for freedom of expression of public officials.


Global Perspective

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Related International and/or regional laws

Case Significance

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The decision was cited in:

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