pursuant with Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) and with Articles 29, 31, 56, and 58 of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure”), issues the present Judgment.
Introduction of the case and object of the controversy
1. On April 20, 2007, pursuant with Articles 51 and 61 of the American Convention, the Inter-American Commission of Human Rights (hereinafter “the Commission” or “the Inter-American Commission”) submitted to the Court an application against the Bolivarian Republic of Venezuela (hereinafter “the State” or “Venezuela”) in relation to case 12,441, which was originated in petition No. 4109/02, presented at the Secretariat of the Commission on July 23, 2002 by Luisiana Ríos, Luis Augusto Contreras Alvarado, and Eduardo Sapene Granier, acting on their own behalf and in representation of Messrs. Javier García, Isnardo Bravo, David Pérez Hansen, Wilmer Marcano, Winston Gutiérrez, and Isabel Mavárez, all employees of the television station Compañía Anónima Radio Caracas Televisión (hereinafter “RCTV). On February 27, 2004 the Commission approved Admissibility Report No. 06/04 and on October 26, 2006 it approved the Report on Merits No. 119/06, in the terms of Article 50 of the Convention, which includes certain recommendations to the State.2 On April 8, 2007 the Commission decided, in the terms of Article 51(1) of the Convention and 44 of its Rules of Procedure, to submit the present case to the jurisdiction of the Court. The Commission appointed Mr. Paulo Sergio Pinheiro, member of the Commission, and Messrs. Santiago A. Chacón, Executive Secretary, and Ignacio J. Álvarez, then Special Rapporteur for the Freedom of Expression, as delegates and Mrs. Elizabeth Abi-Mershed, current Joint Executive Secretary, Débora Benchoam, Lilly Ching Soto, and Silvia Serrano as legal advisors. Mr. Ariel E. Dulitzky and Mrs. Alejandra Gonza, who are no longer employees of the Commission, as legal advisors.
2. The facts presented by the Commission refer to acts and omissions committed by public officials and individuals, which constituted restrictions to the task of seeking, receiving, and imparting information of 20 people, all of them journalists or social communication workers that are or have been linked to RCTV. Specifically, the Commission argues that these people were subject to several threats, acts of harassment, and verbal and physical abuse, including injuries caused by gunshots, and that there were attempts against the installations of the RCTV television station, between the years 2001 and 2004. Additionally, the Commission stated a lack of diligence in the investigation of those incidents and omission of preventive actions by the State.
3. The Commission requested the Court that it declare the State responsible for the violation of the rights acknowledged in Articles 5 (Right to Humane Treatment), 13 (Freedom of Thought and Expression), 8 (Right to a Fair Trial), and 25 (Right to Judicial Protection) of the American Convention, in relation to the general obligations to respect and guarantee human rights established in Article 1(1) of that treaty, in detriment of Luisiana Ríos Paiva, Luis Augusto Contreras Alvarado, Eduardo Guillermo Sapene Granier, Javier García Flores, Isnardo José Bravo, David José Pérez Hansen, Wilmer Marcano, Winston Francisco Gutiérrez Bastardo, Isabel Cristina Mavarez Marin, Erika Paz, Samuel Sotomayor, Anahís del Carmen Cruz Finol, Herbigio Antonio Henríquez Guevara, Armando Amaya, Antonio José Monroy, Laura Cecilia Castellanos Amarista, Argenis Uribe, Pedro Antonio Nikken García, Noé Pernía, and Carlos Colmenares, alleged victims in this case. As a consequence of the aforementioned, the Commission requested that the Court order certain reparation measures to the State and that the costs and expenses be reimbursed.
4. On July 19, 2007, the representatives of 16 of the 20 alleged victims, Messrs Carlos Ayala Corao, Pedro Nikken, Oswaldo Quintana Cardona, and Moirah Sánchez Sanz, (hereinafter “the representatives”),3 presented the brief of pleadings, motions, and evidence (hereinafter “brief of pleadings and motion”), in the terms of Article 23 of the Rules of Procedure. In this brief they referred to the facts stated in the Commission’s application, as well as to a series of “facts supervening” the presentation of the application, among which the decision of the Venezuelan government to “close the open signal of the RCTV station, by not renewing its concession” on May 27, 2007 stands out.4 The representatives hope that said facts help this Tribunal know the historical context in which the facts of the application culminated, since they consider that the closing constitutes the “realization of the threats” that had been occurring since the end of the year 2006. Thus, they asked the Court that besides the violations argued by the Commission, it declare that the State is responsible for the violation of Article 24 (Right to Equal Protection) of the Convention, in relation to Article 13 thereof, based on the differentiated treatment with regard to the freedom of thought received by people linked to “different media that does not support the government”. In their final arguments they asked that the Court declare the State responsible for the violation of Articles 5, 13, 8, and 25 of the American Convention “in connection with” Articles 1, 2, and 7(b) of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (“Convention of Belem do Pará”), in detriment of the alleged female victims. Finally, they asked that the Court order the State to adopt certain reparation measures.
5. On September 21, 2007 the State presented its brief of preliminary objections, response to the application, and observations to the brief of pleadings and motions. In this brief, the State presented two preliminary objections, specifically: “partiality in the duties carried out by some of the judges members of the Court” and the “need to exhaust the remedies made available in the Venezuelan legal system, as a cause of admissibility of the applications presented before the Inter-American human rights system.” Likewise, it asked the Court to declare the violations to the rights acknowledged in Articles 5, 8, 13, 24, and 25 of the Convention, attributed by the Commission and the alleged victims inadmissible and non-existent. It requested that, as a consequence of the inadmissibility of the claims and the brief of pleadings and motions be declared unfounded, as well as the claims and reparations requested. The State appointed Mr. Germán Saltrón Negretti as its Agent and Mr. Larry Devoe Márquez as its Deputy Agent in the present case.5 II
Jurisdiction 6. The Court is competent to hear the present case, in the terms of Article 62(3) of the American Convention, given that Venezuela is a State Party to the American Convention since August 9, 1977 and it acknowledged the Court’s contentious jurisdiction on June 24, 1981.
Proceedings before the Court
7. With the prior preliminary examination made by the then President of the Court and pursuant with Articles 34 and 35(1) of the Rules of Procedure, on May 22 and 23, 2007 the Secretariat of the Court (hereinafter “the Secretariat”) notified the application by fax to the State6 and the representatives,7 respectively. On May 22, 2007 the application was sent to the State and the representatives by courier, along with all the appendixes, which was received by the representatives on May 31, 2007 (T1 f.215 and 225). Due to problems within the courier company hired the application was not received by the State in the estimated time, thus it was resent to the Venezuelan Ministry of Foreign Affairs on June 7, 2007, through the Embassy of Venezuela. On July 9, 2007 the State appointed Mr. Pier Paolo Pasceri Scaramuzza as Judge ad hoc.
8. Once the State presented its response to the application (supra para. 5), on October 12, 2007, the then President of the Court issued an Agreement through which it decided not to accept the State’s request, presented as a preliminary objection, that the judges Cecilia Medina Quiroga and Diego García-Sayán be separated from hearing the case, and submitted the agreement to the Full Corte. On October 18, 2007 the Court issued an order declaring inadmissible the State’s mentioned request and accepted the excuse given by Judge García-Sayán.
9. On November 16, 2007 the Commission and the representatives presented their written arguments to the preliminary objections presented by the State.
10. On December 17, 2008 the representatives forwarded documents as evidence and stated that “due to reasons of grave difficulty” they could not be sent along with their brief of pleadings and motions. The Court asked the State and the Commission to forward the observations considered appropriate. On January 18, 2008, after an extension granted, the Commission communicated it did not have any observations to present, while the State did not refer to this matter.
11. On June 11, 2008 the President of the Court ordered the receipt through statements offered before a notary public (affidavit) of twelve testimonies and six expert opinions offered by the Commission, the representatives, and the State,8 regarding which the parties had the opportunity to present observations. Additionally, the President summoned the Commission, the representatives, and the State to a public hearing to receive the statement of a witness proposed by each party, as well as the final oral arguments on a preliminary objection and the possible merits, reparations, and costs. Finally, the President decided to include in the body of evidence of the present case two statements.9
12. On June 17, 2008 the representatives stated that they had faced difficulties to authenticate some statements and expert opinions required in the previous Order and they also communicated the death of Mr. Javier García Flores, one of the alleged victims of the present case.
13. On June 20, 2008 the representatives presented “challenges and objections” to an expert opinion included in this case. On that same date, the Commission informed that it did not have “observations to present” in this sense and asked the Court to, pursuant with that stated in Article 45(1) of its Rules of Procedure, include in the present case two expert opinions offered in another case. On June 26, 2008 the State presented a “formal challenge” against four of the experts summoned to offer their opinion. Between July 2 and 7, 2008 the parties and the experts challenged presented their corresponding observations. Additionally, on July 10, 2008 the representatives requested that an additional expert opinion offered in another case be included.
14. On July 22, 2008 the President issued an order in which it dismissed the challenges presented by the representatives and by the State, as well as the Commission’s request to include in the present case two expert opinions offered in the case of Perozo et al. v. Venezuela. Similarly, the President decided to include in the body of evidence of the present case, in application of the stipulations of Article 45(1) of the Rules of Procedure, an expert opinion of Mr. Alberto Arteaga, offered in the mentioned case.
15. On August 7, 2008 the public hearing was held during the LXXX Sessions of the Court at its headquarters, which was presided by Judge García Ramírez.10
16. On September 8, 2008 the Commission, the representatives, and the State presented, respectively, their final written arguments in relation to the preliminary objections and the possible merits, reparations, and costs in this case.
17. On October 13, 2008, following instructions of the President and in the terms of Article 45(1) of its Rules of Procedure, the State was required to present a complete and punctual report, issued by the competent authorities, regarding the current state and the actions taken in the investigations and legal proceedings that are either open or were processed in relation to the complaints or remedies presented by the alleged victims in the present case, in the measure that said information not be already included in the case file.11 On November 4th of that same year, after an extension granted, the State presented a report of the Solicitor General’s Office and other documents. A term was granted to the representatives and to the Commission so they could forward the observations considered appropriate. On November 18, 2008 the Inter-American Commission stated that “the information presented by the State does not correspond to the report requested and therefore, it has no observations to present.” The representatives did not forward observations.
18. On October 21, 2008, following instructions of the President and in the terms of Article 45(1) of the Rules of Procedure, the State was required to forward uncertified full and legible copies of that acted in the investigations and legal proceedings opened or processed in relation with complaints or appeals filed by the alleged victims. On December 5, 2008 the State forwarded the mentioned documents in response to the above. The representatives and the Commission were granted a term to forward the observations considered appropriate. On January 5, 2009, after the granting of an extension, the representatives forwarded their observations and they additionally made observations that do not refer strictly to the documents presented by the State (infra para. 89). The Commission did not present observations.
19. On the other hand, the following organizations, entities, and institutions presented briefs in their condition of amicus curiae: on May 15, 2008 the Netherlands Institute for Human Rights-SIM; on May 27, 2008 the Institute for Democracy and Human Rights of the Pontifical University of Peru - IDEHPUC; on June 6, 2008 the Legal Office of the Torcuato Di Tella University and the Association for Civil Rights -ADC; on July 2, 2008, the International Radio Broadcasting Association -AIR-; on July 11, 2008, the Inter-American Media Society; on July 15, 2008 the Association Mondiale des Journaux; on July 29, 2008 the Venezuelan Chamber of the Broadcasting Industry; on July 31, 2008 the National Syndication of Media Employees (STNP);on August 1, 2008 the Bar Association of the City of New York; on August 7, 2008 the World Press Freedom Committee; on August 5, 2008 the “Broadcasting Association of Chile – ARCHI”; on September 2, 2008 the National Union of Employees of the Radio-Television Industry Coraven–RCTV (SINATRAINCORACTEL), and on September 5, 2008 the Center of Studies on Law, Justice, and Society (DeJuSticia).
Provisional Measures 20. On November 27, 2002 the Commission presented before the Court a request of adoption of provisional measures. On that same day the Court issued an order in which it required that the State adopt provisional measures to protect the life and personal integrity of Luisiana Ríos, Armando Amaya, Antonio José Monroy, Laura Castellanos, and Argenis Uribe.12 That request was related to a case being processed before the Commission.
21. On January 24th and February 6, 2003 the Court summoned the parties to a public hearing on the provisional measures at the Court’s headquarters, which was held on the 17th day of the same month and year.
22. On February 20, 2003 the Court issued an order in which it decided to “declare that the State has not effectively implemented the provisional measures ordered by the Court” and reiterated to the State the requirement to adopt them.13 23. On September 29, 2003 the Commission submitted to the Court a request to expand the provisional measures in favor of Messrs. Carlos Colmenares, Noé Pernía, and Pedro Nikken. On October 2, 2003 the President of the Court issued an order expanding the provisional measures,14 which was ratified by the Court on November 21st of the same year.15
24. On December 2, 2004 the Court issued an order in which it reiterated that the State had not effectively implemented the different provisional measures ordered by the Court in this matter; it declared the State’s failure to comply with the duty imposed by Article 68(1) of the Convention; it declared the State’s failure to comply with the duty to inform the Tribunal on the implementation of the measures; it decided that, if that situation persisted, it would inform the General Assembly of the Organization of American States of the State’s failure to comply with the decisions of this Tribunal and it reiterated to the State the requirement to adopt, without delay, the measures ordered and allow the petitioners to participate in the planning and implementation of the same.16 On May 4, 2004 the Court issued an order in similar terms.17
25. On July 9, 2004 the Commission presented a request to expand the measures. On the 27th day of the same month and year the President issued an order expanding them,18 which the Court ratified on September 8, 2004.19 26. On September 12, 2005 the Court reiterated its orders to the State.20 27. On January 24, 2007 the Tribunal declared a request filed by the beneficiaries of the provisional measures and their representatives on January 22, 2007 to have the provisional measures ordered expanded inadmissible “because those who file[d] it did not fulfill the requirements of procedural legal standing to do so.”21
28. On May 26, 2007, after the presentation of the application, eight people, seven of whom are alleged victims identified in the application,22 filed a request of expansion of the measures. On the following June 4th, 14 people, alleged victims, se added themselves to the mentioned request for the ordering of measures “due to the imminent danger that grave and irreparable damages occur against [their] human rights, specifically against freedom of expression, resulting from the closing of the broadcasts [of RCTV].” On June 14, 2007 the then President dismissed that request because it considered, inter alia, that the adoption of the measures requested could imply an anticipated judgment through interlocutory proceedings with the subsequent establishment of some of the facts and its corresponding consequences object of the main debate of the case presented to the Tribunal.23 Similarly, it required that the State maintain the provisional measures ordered. On June 19, 2007 Mr. Eduardo Sapene and another 180 people, assisted by the representatives, added themselves to the request of May 26, 2007. On July 3, 2007 the Court ratified in all its terms this Order of the President, it dismissed the requests of expansion and it ordered the State to maintain the provisional measures determined in the Orders of November 27, 2002, November 21, 2003, September 8, 2004, and September 12, 2005.24
29. Upon issuing this Judgment, the provisional measures ordered are in force; thus on this date the State has the obligation to:
[…A]dopt, without delay, all necessary measures to protect the life and personal integrity of Luisiana Ríos, Armando Amaya, Antonio José Monroy, Laura Castellanos, Argenis Uribe, Carlos Colmenares, Noé Pernia, and Pedro Nikken, as well as the freedom of expression of the these last three.
[…A]dopt, without delay, all necessary measures to protect the life, personal integrity, and freedom of expression of all journalists, directors, and employees of the social communications firm Radio Caracas Televisión (RCTV), as well as of the people located in the installations of that social communications firm or linked to the journalistic operation of that media (RCTV).
[…A]dopt, without delay, such measures as may be necessary to protect the perimeter of the head offices of the social communications firm Radio Caracas Televisión (RCTV).
[…I]nvestigate the facts that gave rise to these provisional measures and their expansion, in order to identify those responsible and impose upon them the corresponding punishments.
[…A]llow the beneficiaries of the measures or their representatives to participate in the planning and implementation of the protection measures and […], in general, […] maintain [them] informed of the progress of the measures ordered by the Inter-American Court of Human Rights.
First Preliminary Objection
“Of the prejudice in the role performed by some of the judges members of the Court”
30. In the first preliminary objection the State requested that the Judges Cecilia Medina Quiroga and Diego García-Sayán be “separated from hearing” the present case. As grounds for its request, the State referred, inter alia, to the existing relationship between those Judges and a non-governmental organization. The State indicated that one of the attorneys that legally represents the alleged victims in this case is the president of that organization and a member of its board of directors. In the State’s opinion, Judges Medina and García-Sayán had issued, along with the rest of the members of that organization, prior opinions of a negative nature and that were discrediting against the State, which “compromises their fairness when proceeding to issue a judgment in the present case.”
31. This position was considered in an Agreement of the then President of the Court of October 12, 2007 (supra para.8), in which it decided, inter alia, and “in light of the elements of judgment it had at that time, […] to not accept […] the exclusion of Judges Cecilia Medina Quiroga and Diego García-Sayán from hearing the Case of Ríos et al. v. Venezuela, and exercise the power to submit the matter to the Full Court, in the terms of Article 19(2) of the Statutes of the Tribunal.” 32. The aforementioned was considered by the Court in its Order of October 18, 2007 (supra para. 8), where it decided that the State’s request did not constitute a preliminary objection strictly speaking. However, it considered it appropriate to make a decision in this regard as a prior matter in order to continue processing the case. By virtue of the considerations stated in the Order itself, and in the light of the elements of judgment it had, the Court considered the State’s mentioned request inadmissible. However, it analyzed a request of self-disqualification presented by Judge García-Sayán, with regard to his interest that “the perception of absolute independence of the Tribunal not be affected in any way and in order to avoid any distraction to the Tribunal’s attention on matters that tear it away from hearing the merits of the matters presented to it.” The Court considered it reasonable to accept the Judge García-Sayán’s request and his self-disqualification.25 Therefore, the arguments presented by the State, which are not a preliminary objection, were already solved by the Court in the mentioned Order. Thus, the first preliminary objection filed by the State is inadmissible.