Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
Closed Expands Expression
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The Inter-American Court of Human Rights found Venezuela responsible for violating the rights to political participation and freedom of expression of three public servants. The public servants worked for a public body responsible for implementing border policy but had their contracts with the government terminated after their names were published in a list of persons who had signed a petition calling for a recall election of then-President of Venezuela, Hugo Chavez.
The Court held that the Venezuelan government had abused its power and that the dismissal of the public servants constituted a retaliation against them for exercising their rights by signing the petition. The Court held that this constituted a prohibited form of political discrimination and a violation of the public servants’ rights to freedom of expression and political participation.
In February 2003, opposition political parties and civil society groups in Venezuela began a campaign – known as El firmazo – to collect signatures calling for a presidential recall election to remove then-President Hugo Chavez. The Constitution of Venezuela allows for the removal of a president from office before the expiration of his or her term through a recall election – termed a referendum revocatorio. This election is triggered by the submission to the National Electoral Council (the Council) of a petition containing the signatures of at least 10% of the registered voters calling for the recall election, after which the Council issues a decision on whether the election will be held. During the El firmazo campaign over 3 million signatures were collected. However, after the Constitutional Chamber held that recall elections could only be called after the president had served half of his term, on September 12, 2003 the Council announced that the request was void as the signatures had been collected before the presidency’s halfway mark (even though the petition had been presented to the Council after that period).
On September 25, 2003, the Council approved an amendment to the procedure for recall elections which, among other things, granted the Council a period of 30 days from the presentation of the signatures to verify the information of the voters who had signed the request. After this verification process the Council was required to publish the results of the verification process – including the identity numbers of those who had signed the request – in at least one national print outlet.
The Council itself then called for a second collection of signatures requesting the presidential recall election. This collection came to be known as el Reafirmazo and took place between November 28 and December 1, 2003.
There was opposition to the second petition. On October 19, 2003 President Chavez made a public statement declaring that “those who sign against Chavez, are not really signing against Chavez. They are signing against our nation […] whoever signs against Chavez will have his identity recorded for history because he will be required to provide his name, surname and ID number as well as his fingerprint” (para. 53). On October 21, 2003, the General Attorney of the Republic declared that “active military members can express their will in favor of the recall election during the signature collection”. However, in the days previously the Commander of the Army had declared that the only political right the Constitution afforded members of the military was the right to vote which excluded any participation in any signature collection or demonstration from either side (para. 54).
There was also public support for the right to public participation. On October 27, 2003, the Council issued a resolution exhorting all public and private entities to abstain from any practices which could interfere with the free and peaceful exercise of the right to political participation in all phases of the recall election proceeding. On November 28, 2003 the Minister of Labor declared that no one could be discriminated against for political reasons and that the labor inspection offices would remain open to receive complaints.
Over 3 million signatures were collected during el Reafirmazo. These included those of public servants Rocío San Miguel Sosa, Magaly Chang Girón and Thais Coromoto Peña who worked for the Consejo Nacional de Fronteras – a public body responsible for implementing Venezuela’s border policies.
On January 30, 2004, before the Council had concluded the signature verification process, President Chavez authorized parliament member Luis Tascón to retrieve copies of the signature sheets. The copies were provided by the Council and Tascón published the list – which came to be known as the liste Tascón – on his website, alleging that those who had signed had participated in a “megafraud”. Following the publication of this list there were multiple reports of public servants being threatened or losing their jobs because their name appeared on the list. There were also reports that the Labor Courts did not revoke the terminations and that the Prosecution and Ombudsman offices failed to intervene in these cases.
On March 2, 2004, the Council concluded the signature verification process. After this process, the Council published the entire list of the signatures collected in the mass media, indicating which signatures had been accepted and which had been challenged and would be subject to a validation process by the Council. In total 1,192,914 signatures were subjected to this verification process, known as the reparo. Voters who had changed their minds were also allowed to withdraw their signatures regardless of whether they had been selected for verification. Rocío San Miguel Sosa, one of the public servants working for the Consejo Nacional de Fronteras, had her signature challenged and she subsequently went to the Council to validate her signature.
On June 25, 2004, the Council approved the recall election request and set August 15, 2004 as the date for the election. The results of the election were 5,800,629 votes in favor of Chavez and 3,989,008 against. Accordingly, President Chavez remained in office.
On April 25, 2005, the Public Ministry stated that an investigation had been initiated to determine whether any criminal acts had been committed by any public or private parties due to the misuse of the lists that had been published concerning those who had signed in support of the recall election. The prosecution office declared that the publishing of the list was not illegal per se as it served the purpose of preventing the misuse of the signatures and ensuring the authenticity and transparency of the process.
In May 2005, the Council published a resolution condemning the discrimination of those who had signed the petition and calling on the Prosecution and Ombudsman Offices to act in defense of the rights of those who had lost their jobs because of the exercise of their political rights.
Later in 2005, a new list known as lista Maisanta was created which combined the names of those who had signed in favor of the recall election with detailed information on registered voters and their political positions.
The March 12, 2004 the public servants Rocío San Miguel Sosa, Chang Girón and Coromoto Peña received notice that their contracts with the Consejo Nacional de Fronteras had been terminated. On May 27, 2004 they filed a complaint with the Ombudsman claiming that their employment contracts had been unjustifiably and discriminatorily terminated because of their signing of the petition. However, the Ombudsman concluded that these claims could not be proven and that the Government had acted within its contractual rights.
On July 22, 2004 the three public servants filed an amparo action – a remedy for the protection of constitutional rights – against the Consejo Nacional de Fronteras. As evidence to support their case they submitted a number of recordings and conversation transcripts including one in which San Miguel Sosa’s superior had told her that she could not call for an election against the person who was paying her. This evidence was rejected by the Fourth Judge of First Instance who also rejected the amparo on July 27, 2005 after concluding that the political discrimination had not been proven. The three public servants appealed this decision to the Third Superior Labor Court of the Labor Judicial Circuit of the Judicial Circumscription of the Metropolitan Area of Caracas which rejected the appeal on September 9, 2005.
On May 27, 2004 the three public servants then filed a criminal complaint against the officers who had terminated their contracts. On April 4, 2005 the Twenty First Court of First Instance in Functions of Control dismissed the claim on the grounds that there was no evidence of criminal wrongdoing as the termination was authorized by the contracts themselves. The three public servants then sought an appeal and then a cassation remedy which were rejected by the Seventh Chamber of the Appeals Court and the Criminal Cassation Chamber of the Supreme Justice Court respectively.
The three public servants then approached the Inter-American Commission of Human Rights.
The central issue before the Inter-American Court of Human Rights was whether the three public servants’ contracts had been terminated as a result of their names appearing in the Lista Tascón and, if so, this was in violation of the principle of non-discrimination and their rights to political participation and freedom of expression.
Before the Court, the Inter-American Commission of Human Rights and the public servants argued that the signing of the recall election petition constituted a form of expression of a political opinion protected by the rights to freedom of expression, political participation and to not be discriminated against for political reasons. They maintained that the termination of the contracts was an abuse of power motivated by the government’s desire to retaliate against those who had signed the petition. In addition, they submitted that the manner of publication of the lista Tascón did not include adequate safeguards for those who had signed the petition. They highlighted that out of 23 employees of the Consejo Nacional de Fonteras the only three whose contracts had been terminated were the three who had singed the recall election petition and had not withdrawn their signature during the reparo stage and that a fourth person who had signed the petition but had later withdrawn his signature during the reparo stage had not been fired.
The Venezuelan government argued that the three individuals were not career public servants and that their contracts authorized their discretional termination without requiring the government to provide explanations for it. It also argued that the recall election petition was not protected by the secrecy rule established in article 23(1) of the American Convention on Human Rights (ACHR) and, thus, that the publishing of the list of those who had signed was lawful and necessary. Article 23(1) states: “Every citizen shall enjoy the following rights and opportunities: (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and (c) to have access, under general conditions of equality, to the public service of his country”.
The government further argued that the decision to terminate was not politically motivated and submitted that a person who had not signed the petition had also been fired along with the applicants and a person who had signed the list had not had his contract terminated.
The Court noted that the right to political participation requires “the existence of institutions and mechanisms of a procedural nature that allow and ensure the effective exercise of the right, preventing or counteracting legal or de facto practices or situations that imply forms of stigmatization, discrimination or retaliation against those who exercise it” (para.111).
The Court held that the right to request and participate in a recall election, as authorized by the Venezuelan Constitution, was a political right protected by the ACHR. The Court also acknowledged that discriminating against a person because he or she is perceived as a political opponent is not acceptable under the ACHR.
The Court examined whether the publication of the list of those who had signed was acceptable under the ACHR. The Court considered that, while the Council had the obligation to deliver the list to the president as he was an interested party, it also had an obligation to consider whether restrictions to the publication were necessary. The Court highlighted that there was no evidence that the Council had weighed the necessity of the publication against the risk such publication would entail for those who had signed. The Court then noted that the publication of the Lista Tascón on a website under the title of “megafraud” evidenced that the publication of the list had motives ulterior to guaranteeing the rights of the parties of the process. The Court concluded that the publication of the list produced an enabling environment for the political persecution and discrimination of those who were perceived as detractors of the government, which was not compatible with the State’s duties under article 23(1) of the ACHR.
The Court also concluded that Venezuela had acted in abuse of power by activating the discretional termination clause of the public servants’ contract to cover its real goal of retaliating against them for their legitimate exercise of their constitutional rights. In reaching this conclusion, the Court considered the public servants’ testimony as well as the circumstantial evidence such as the reports from international observers regarding political persecution in Venezuela; the ad-hoc introduction by the Council of the reparo procedure and the opportunity to withdraw signatures; and the public statements by President Chavez and other members of the government which contributed to hostility and intolerance against their political detractors.
In addition, the Court determined that the signing of the recall election petition constituted a form of expression of a political opinion, and that the public servants were subjected to discrimination in retaliation against their legitimate exercise of freedom expression constituted a direct restriction of this freedom. The Court further concluded that the actions of the government could have interfered with free public debate and could have had dissuasive, frightening or inhibitive effects in detriment of the collective exercise of freedom of expression.
The Court also found that Venezuela had failed in its duties to the public servants under the rights to due process and effective remedy as the Venezuelan courts did not sufficiently motivate their decision to dismiss the applicants’ amparo action.
The Court also found that Venezuela had violated the principle of progressive development of Economic, Social and Cultural Rights in relation to the right to employment because of the government use of employment termination as a tool to silence and discourage political dissidence.
Accordingly, the Court held Venezuela responsible for the violation of the rights to freedom of expression and political participation in relation to the principle of non-discrimination; the rights to due process and effective remedy; and the principle of progressive realization of economic, social and cultural rights, and ordered Venezuela to offer moral and financial compensation to the public servants.
Judge Humberto Antonio Sierra Porto issued a dissenting opinion opposing the majority’s conclusion that Venezuela had violated freedom of expression. The Judge considered that, when signing the recall election petition, the public servants only exercised their political rights but not their freedom of expression. His reasoning was that, as they did not intend the fact they had signed to become public, the act of signing could not be considered an act of exercise of freedom of expression as their goal was not to communicate ideas to others. The Judge considered that forms of expression of political opinion that are meant to be in secret are different in nature to public forms of expression: the first involves only the right to political participation while the later involves both the right to political participation and the right to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Inter-American Court of Human Rights acknowledges that the signing of a political petition constitutes a form of expression protected by international human rights law and recognizes a positive obligation on governments to provide safeguards against retaliation against those who express themselves through their participation in political processes. The decision acknowledges the use by governments of employment termination as a tool to silence opposition within the administration and that this is a violation of the principle of progressive realization of economic, social and cultural rights in relation to the right to employment. In addition, the Court emphasized that the termination of a public servant’s contract – even when authorized by the contract itself – constitutes a violation of the right to freedom of expression when the motivation behind the termination is punishing the servant for his or her legitimate exercise of freedom of expression.
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