Observation (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 105) sur l'abolition du travail forcé, 1957 - Venezuela (République bolivarienne du) (Ratification: 1964)

Autre commentaire sur C105

Observation

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The Committee notes the observations received from the International Organisation of Employers (IOE) and the Federation of Chambers and Associations of Commerce and Production of Venezuela (FEDECAMARAS) on 31 August 2017. It also notes the observations from the Confederation of Workers of Venezuela (CTV) received on 5 November 2019 and requests the Government to provide its reply to these observations.

Article 1(a) of the Convention. Imposition of sentences of imprisonment involving the obligation to work as a punishment for expressing political opinions or views ideologically opposed to the established political, social or economic system. In its previous comments, the Committee noted that persons sentenced to a penalty of deprivation of liberty of presidio or prisión are subject to an obligation to work (sections 12 and 15 of the Penal Code) and observed that the following provisions of the Penal Code provide for penalties of prisión, involving compulsory prison labour, for certain forms of behaviour, namely:

-offending or showing a lack of respect for the President of the Republic or for a number of public authorities (sections 147 and 148);
-public denigration of the National Assembly, the Supreme Court of Justice, etc. (section 149);
-offending the honour, reputation or prestige of a member of the National Assembly or a public servant, or of a judicial or a political body (sections 222 and 225); proof of the truth of the facts is not admitted (section 226); and
-defamation (sections 442 and 444).

Recalling that the Convention prohibits the imposition of work, including prison labour, as a punishment on persons who express political views, the Committee previously noted with deep concern the criminalization of social movements and the expression of political views. It requested the Government to provide information on the application in practice of the above-mentioned provisions, while ensuring that no one who, in a peaceful manner, expresses political views or opposes the established political, social or economic system can be sentenced to imprisonment, under the terms of which compulsory labour could be imposed.

The Committee notes the Government’s statement, in its report, that no one, and more particularly no business or union leader, has been condemned for peacefully protesting or expressing political views. It adds that there is no legislative provision imposing an obligation to work on convicted persons and that no complaint has been registered in that respect. Convicted persons can voluntarily participate in cultural, sport or socio-productive activities in order to facilitate their social reintegration once released. The Committee notes that the Government refers to several provisions of the Basic Prison Code (Official Gazette No. 6.207 of 28 December 2015), while highlighting that convicted persons can work in areas corresponding to their skills and receive a financial allowance in return for their work. The Government adds that prison labour is a means of social reintegration and is only mandatory when the convicted person intends to reduce the length of his or her custodial sentence and access alternative penalties to imprisonment (sections 60, 63, 65 and 67 of the Code). It notes, nevertheless, that the Government does not provide any information on the application in practice of sections 147 to 149, 222, 225, 226, 442 and 444 of the Penal Code. Furthermore, referring to its previous comments, it recalls that: (i) under the terms of the Basic Prison Code, work by convicted persons is a right but also a duty and, under section 64 of the Code, convicted persons who refuse work or who voluntarily perform it in an inappropriate manner, commit a very serious fault and are liable to the penalties established in the Code; and (ii) pursuant to sections 12 and 15 of the Penal Code referred to above, persons sentenced to a penalty of deprivation of liberty of presidio or prisión are subject to an obligation to work. The Committee also emphasizes that where the national legislation provides for the obligation to work for persons convicted to sentences of imprisonment, as is the case in the Bolivarian Republic of Venezuela for penalties of presidio and prisión, provisions of the legislation which lay down limits or restrictions on the exercise of certain civil rights or public freedoms, the violation of which may be punished by sentences of imprisonment, have an effect on the application of the Convention. Indeed, persons who do not comply with these limits could be convicted to a sentence of imprisonment and, as a consequence, be subjected to compulsory labour.

The Committee notes that, in its observations, the CTV expresses concern about the recurring cases of persecution for expressing political opinions, highlighting that there has been an increase in criminalization of social protests and expression of political opinions other than those of the governmental party, with the possibility of criminal sentences involving forced or compulsory labour. The CTV adds that there have been numerous cases of persecution of union leaders, some of whom have been prosecuted before military tribunals, and that recently several university rectors and lecturers have also been prosecuted for criticizing the Government. The CTV further refers to an investigation carried out by an NGO, which showed that, in 2018, 387 cases of violation of freedom of expression were registered and 24 persons were imprisoned for publishing, on social networks, opinions criticizing governmental actions or data showing the social, economic and political emergency in the country.

The Committee takes note of the adoption of the Constitutional Law against hatred, for peaceful coexistence and tolerance (Act No. 41.274 of 8 November 2017), and more particularly of section 20 which provides that “anyone who publicly or through any means suitable for public dissemination promotes, fosters or incites hatred, discrimination or violence against a person or a group of persons, by reason of their real or alleged membership to a determined social, ethnic, religious or political group … shall be punished by imprisonment for ten to 20 years.” It notes, that pursuant to section 21 of the Act, the real or supposed membership to a determined political group is an aggravated circumstance for the offence. The Committee notes that several bodies, such as the Inter-American Commission on Human Rights (IACHR), have expressed concern regarding the broad, vague and ambiguous nature of the terms mentioned under section 20 of the Act, and highlighted that the declarations issued by the Government indicate that it will be used to persecute the political opposition and criminalize expression of views opposed to the established political system (IACHR, Country report on Venezuela, Situation of human rights in Venezuela, December 2017).

The Committee notes that similar concerns were expressed on the above Act No 41.274 by the United Nations High Commissioner for Human Rights in her 2019 report on the situation of human rights in the Bolivarian Republic of Venezuela, who also highlights that successive laws and reforms have facilitated the criminalization of the opposition and of anyone critical of the Government through vague provisions, increased sanctions for acts that are guaranteed by the right of freedom of peaceful assembly and the use of military jurisdiction for civilians. The United Nations High Commissioner further indicates that neither the Office of the Attorney General nor the Ombudsman, nor the Government nor the police provide protection to victims and witnesses of human rights violations, and that the Attorney General has contributed to stigmatizing and discrediting members of the political opposition and those critical of the Government, in violation of the principle of presumption of innocence. Impunity has enabled the recurrence of human rights violations, emboldened perpetrators and side-lined victims (A/HRC/41/18, 9 October 2019, paragraphs 35, 36, 57, 77 and 80). The Committee notes that, in its Resolution adopted in October 2019, the United Nations Human Rights Council strongly condemns the widespread targeted repression and persecution on political grounds in the Bolivarian Republic of Venezuela and urges the Government to immediately release all political prisoners and all other persons arbitrarily deprived of their liberty. The Committee further notes that the United Nations Human Rights Council highlights that the Prosecutor of the International Criminal Court has decided to open a preliminary examination of the situation in the country to analyse crimes allegedly committed, since at least April 2017, in the context of demonstrations and related political unrest. It further notes that on 30 April 2020, several United Nations human rights experts indicated that they were alarmed at the increasing threats, attacks and charges against journalists as well as criminalization of human rights defenders since the state of health emergency which was declared on 13 March 2020 as a result of the global virus pandemic (OHCHR press release, 30 April 2020).

Lastly, the Committee notes the report of the ILO Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organisation to examine the observance by the Government of the Bolivarian Republic of Venezuela of the Minimum Wage-Fixing Machinery Convention, 1928 (No. 26), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), of which the ILO Governing Body took note at its 337th Session (GB 337/INS/8, October 2019). It notes more particularly that the ILO Commission of Inquiry observed with concern that: (i) serious criminal charges, criminalized under the Penal Code and the Basic Code of Military Justice, have been brought against employers’ leaders, trade unionists and members of employers’ organizations for the exercise of their activities, such as participation in protest activities, or expression of views on issues directly related to the defence of the interests of employers’ and workers’ organizations; and (ii) their trial by a military court which constitutes serious violations of the exercise of basic civil liberties, such as freedom of expression and freedom of assembly. The Committee notes that the criminal charges imposed as a result of actions carried out during activities of the employers’ and workers’ organizations, which were referred to by the ILO Commission of Inquiry include: causing panic and/or unrest among the population through the dissemination of false information, insulting the sentry and the armed forces, unlawful association, treason, terrorism, resistance and contempt for authority.

The Committee deplores the continued criminalization of social movements and expression of views opposed to the established political, social or economic system. The Committee strongly urges the Government to take the necessary measures, both in law and practice, to put an immediate end to any violation of the provisions of the Convention by ensuring that no one who, in a peaceful manner, expresses political views or opposes the established political, social or economic system can be sentenced to imprisonment, under the terms of which compulsory labour could be imposed. It requests the Government to provide information on the application in practice of the provisions of the Penal Code, the Basic Code of Military Justice and Act No. 41.274 referred to above, as well as detailed information on court decisions based thereon, with an indication of the facts that gave rise to the convictions and the nature of the sanctions imposed. Lastly, the Committee requests the Government to ensure the immediate release of any person convicted to a prison sentence entailing compulsory prison labour, for peacefully expressing political views or opposing the established political, social or economic system.