14
In light of the foregoing, it would seem evident the unremarkably efficiency and
effectiveness of the Venezuelan judicial system and as a result, it would seem appropriate
the decision contained in the judgment regarding the non-compliance with the duty to
guarantee the rights enshrined in articles 13.1 and 5.1 of the Convention, considering
such ineffectiveness. Nevertheless, as shall be analyzed infra, that must not have been a
determining factor in the decision.
d) When discussing, in this subchapter, the violation of the mental and moral integrity of
the alleged victims, even when the Court disregards the expert examination represented
by the psychological evaluation made by Magdalena López, it determines – presumably,
based on the experience inasmuch as there is no evidence that would allow to
scientifically come to the conclusion of the sentencing majority- that, by virtue of the fact
that the alleged victims were subjected to hindrances, aggressions, threats, acts of
harassment and intimidation during their jobs, the State is responsible of the obligation to
guarantee the right to mental and moral integrity of the victims mentioned. (Paragraph
287). I presume that this decision was made because the State exposed the alleged
victims to a situation of relative vulnerability as well as due to the lack of effectiveness of
the system and the Venezuelan judiciary. Considering that there is no reasoning for the
conclusion that the sentencing majority came to, we must ratify that the causal link is
very weak or nonexistent as has been analyzed supra.
Lastly and following the order mentioned, I note in the third subchapter that:
a) The Court, after analyzing the arguments of the State where it was mentioned other
actions instituted different from the criminal ones (paragraph 301), concludes that the
parties have emphasized the complaints and investigations conducted by the criminal
courts, ending with an analysis of the existing remedies available at the criminal courts
(paragraph 305).
I ratify the statement made supra regarding the fact there was no consistency between
the claims lodged before the Inter-American system for protection and the domestic
remedies that should be exhausted in order to have access to that system, insofar as a
criminal court, acting with criminal jurisdiction in Venezuela, shall not be able to restore
the situation alleged by the victims to be impaired. These actions may be verified by
means of administrative actions or remedies stipulated in the Venezuelan set of rules or
constitutional measures.
b) By considering that the criminal proceedings were not suitable or sufficient, as has
been pointed out supra, the Court only analyzed the efficiency and effectiveness of the
criminal proceedings to prove – mistakenly, in my opinion- that if the State’s organs acted
according to the terms of the COPP (Basic Code of Criminal Procedure)22 the results of this
case would be different.
c) The judgment even analysis the lack of action on the part of the State during the
criminal proceedings to conclude that such inactivity led to a detrimental act for the
victims. In fact, it was mentioned that the Attorney General’s Office had to request the
dismissal of the complaints in case that after the opening of the investigation, it was
determined that the facts of this case constituted a crime that needed to be prosecuted at
the request of a party, in accordance with section 301 of the COPP of 2001. It is
necessary to emphasize that two sections of that instrument are in conflict with this
decision: sections 24 and 2523 . To base the decision to condemn the State 24 on the
22
See para.310 to 312 of the judgment from which I dissent.
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