The IACHR found a violation of the requirements of Article 23 § 1 (a) and (b) in conjunction with Article 1 § 1 of the ACHR in respect of the applicants.

Заголовок: The IACHR found a violation of the requirements of Article 23 § 1 (a) and (b) in conjunction with Article 1 Сведения: 2020-07-24 04:23:42

Inter-American Court of Human Rights judgment of 08 February 2018 in the case of San Miguel Sosa and Others v. Venezuela (Series C, no. 348).

The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).

Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San José, Costa Rica). The complaint was then communicated to Guatemala.

The case successfully addressed a complaint in the case of political rights, freedom of expression and labor rights.

The case deals with political rights, freedom of expression and labor rights.


THE CIRCUMSTANCES OF THE CASE


The applicants, San Miguel Sosa, Chang Girón and Coromoto Peña, signed a petition for a referendum on the resignation of the President of Venezuela, which was referred to the State Electoral Council in December 2003. The President of Venezuela ordered the deputy of the National Assembly to receive a copy of the list of persons who signed the petition from the council. The MP later published a list of signatories to the petition in question (known as the Tascón List) on an Internet site, accusing the individuals of “large-scale fraud.” Following the publication of the list, workers and officials of some government agencies said they had been fired as punishment for having signed a petition to hold a referendum on the resignation of the president.In March 2004, the applicants, who had worked for several years in the State Border Council (a division of the Ministry of Foreign Affairs), received a letter from their management stating that their temporary employment contracts were terminated. This decision was allegedly based on the relevant clause of the employment contract, which gave one of the parties discretion in the matter of dismissal. All subsequent complaints that the applicants filed with the courts or the Human Rights Ombudsman were either declared inadmissible or withdrawn lonely in essence.


QUESTIONS OF LAW


The essence of the matter. On the issue of compliance with subparagraphs "a" and "b" of paragraph 1 of article 23 (the right to political participation) in conjunction with paragraph 1 of article 1 (duty to respect and respect rights without discrimination) of the American Convention on Human Rights (hereinafter - ACHR).

The Inter-American Court of Human Rights ruled that the ability to request and participate in a referendum on the resignation of the President was a political right protected by Article 23 (1) (a) and (b) of the ACHR. This right was also provided for in the Venezuelan Constitution. Therefore, the applicants, as citizens, had the right to individually demand a referendum or to participate in the collective collection of signatures. The Inter-American Court of Human Rights has stressed that in a democratic society, no one should be discriminated against on the basis of political opinion or because of the exercise of their political rights. The Inter-American Court of Human Rights noted that the collection of signatures was carried out in the context of political instability in the country and intolerance of dissent.

The Inter-American Court of Human Rights has recognized that the motive or purpose of a particular formal act can determine whether a State's act is arbitrary or an abuse of power. However, the Inter-American Court of Human Rights noted that the actions of public authorities are subject to the presumption of legality. Thus, in order to bona fide to rebut this presumption, it is necessary to establish the fact of illegal action on the part of the authorities. To this end, the Inter-American Court of Human Rights continued to list and examine evidence in the case related to the alleged undeclared purpose, that is, that the motive or actual purpose of terminating the applicants' employment contracts was some form of implicit punishment, harassment or discrimination against the applicants.

For the Inter-American Court of Human Rights, the fact that, with the permission of the President of Venezuela, the list of signatories of the petition to hold a referendum on the president's resignation was handed over to a National Assembly deputy without adequate guarantees in this political context indicated a lack of protection against possible actions or threats related to punishment for participation. in the petition. Given the size of the Tuscon list, published on the Internet under the heading “Large Scale Fraud”, it was clear that, in addition to the legitimate aim of guaranteeing the rights of an elected official or applicant, the publication of the names of citizens who signed the petition to hold a referendum on the President's resignation had ulterior motives associated with intimidating citizens; and discouraging political activity and dissent. In turn, this contributed to repression, political persecution and discrimination against those who were considered political opponents.

The Inter-American Court of Human Rights held that the termination of the applicants' employment contracts was a form of abuse of power carried out under the guise of the legality of the terms of the contract in order to conceal the true motivation, that is, the punishment of the applicants for the legitimate exercise of their political rights. The Inter-American Court of Human Rights based this finding on the fact that the applicants were dismissed one month after the publication of the Taskon list, which included the names of the applicants, and that the State did not explain the reason for this decision, among other elements of the relevant context. In other words, since the applicants supported the call for a referendum in order to challenge the mandate of the President of the country, the applicant's leadership assessed their signatures on the relevant petition as an act of disobedience and an expression of unacceptable dissident political opinion or orientation. In this regard, the Inter-American Court of Human Rights found that the authorities of the respondent State had failed to fulfill their obligation to guarantee, without discrimination, the right of citizens to participate in politics.

On the issue of compliance with article 13, paragraph 1 (freedom of thought and expression) in conjunction with article 1, paragraph 1, ACHR. The Inter-American Court of Human Rights ruled that signing a petition to hold a referendum on the resignation of the Venezuelan President was in itself a form of political opinion. The Inter-American Court of Human Rights considered this to be a statement about the need for public discussion of an issue of interest to all citizens, and discussion of the possibility of obtaining the resignation of the country's president. He also considered such a declaration a form of exercising freedom of expression.

The Inter-American Court of Human Rights found that the applicants' dismissal concealed an intention to keep people from expressing a different political opinion, as the dismissal was used to discourage citizens from participating in politically significant actions. Thus, the fact that the applicants were discriminated against on the basis of political opinion as a punishment for signing a petition to hold a referendum on the resignation of the president constituted a direct restriction on the applicants' exercise of their freedom of expression, which was unacceptable under the ACHR provisions.

On the issue of compliance with Article 26 (right to work) in conjunction with Article 1 paragraph 1, Article 8 paragraph 1, Article 13 paragraph 1, Article 23 paragraph 1 and Article 25 paragraph 1 of the ACHR. The Inter-American Court of Human Rights determined its jurisdiction under the ACHR and the jura novit curia principle to analyze the implications for the applicants' labor rights. In this regard, the Inter-American Court of Human Rights reiterated its position, as outlined in Lagos del Campo v. Peru, regarding the judicial enforceability of the economic, social and cultural rights guaranteed by Article 26 ACHR. The Inter-American Court of Human Rights found a particular violation of the right to work as a consequence of an arbitrary decision to terminate the applicants' employment contracts, abuse of power, political discrimination and lack of access to justice.


RESOLUTION

 

There have been violations in the case of Article 23 § 1 (a) and (b) in conjunction with Article 1 § 1 of the ACHR (adopted unanimously).

The case violated the requirements of paragraph 1 of Article 13 in conjunction with paragraph 1 of Article 1 of the ACHR (adopted by six votes in favor, one against).

There were violations in the case of the requirements of Article 26 in conjunction with paragraph 1 of Article 1, paragraph 1 of Article 8, paragraph 1 of Article 13, paragraph 1 of Article 23 and paragraph 1 of Article 25 of the ACHR (adopted by five votes in favor and two against").


COMPENSATION

 

The Inter-American Court of Human Rights held that this judgment per se was a form of compensation and indicated that the authorities of the respondent State (i) take all necessary measures to ensure that the abuse of power involved does not go unpunished, and (ii) publish this judgment and its summary, and (iii) paid compensation for pecuniary and non-pecuniary damage.

 

 

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