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certain number of years; or that no proceeding was instituted or no investigation
carried out or that there was delay in such proceeding or investigation; or that no
medical-legal evaluation was performed in certain cases; or that there were
unwarranted delays in the delivery of certain decisions by the authorities in charge of
the criminal prosecution, based on the fact that there was no sufficient evidence in
the investigation. (See, paragraphs 167, 172, 183, 187, 191, 195, 199, 215, 220,
224, 228, 232, 236, 240, 244, 248, 252, 256, and 263 of the judgment).
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 273). 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) It highlights to whom dissent, that the Court after analyzing the arguments of the
State where other existing legal actions where referred (para. 286) concluyes that
the parties have emphasized in the controversy taken to this Court in the denounces
and investigations, resulting in an analysis regarding the existing resources inside
the legal grounds (in paragraph 291), to a point of trying to assume that the control
of the actions of Comisión Nacional de Telecomunicaciones (CONATEL) had to be
done before the Public Ministry.
I ratify what is said supra regarding the non existence of congruency between the
pretentions brought before the Inter-American System of protection and the
domestic remedies that had to be exhausted in order to access it; for a judge acting
in legal competence in Venezuela cannot pronounce in the regard that if
CONATEL denounced actions violated or not the freedom of expression, and declare
the victims as injured. These actions are up for revision through the actions and
administrative contentious resources in the Venezuelan juridical order or through
constitutional actions.
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
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