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does not establish the proceeding that the State should institute but the way in
which the procedural matter should be resolved if a person is held responsible for the
commission of two crimes of different nature.
d) The sentencing majority concludes that the investigations did not constituted an
effective means to guarantee the right to humane treatment and the right to seek,
receive and impart information of the alleged victims (paragraphs 330 and 331);
therefore, it was determined that the State is responsible for the non-compliance
with Articles 13(1) and 5(1) in conjunction with Article 1(1) of the Convention, in
light of the fact that the State led reporters to a situation of relative vulnerability
(with a weak or nonexistent causal link as has been emphasized supra), which
derived in a hindrance for the reporters to exercise their profession and the omission
of State’s authorities to carry out the investigations with due diligence (paragraph
334).
The foregoing conclusion makes us think about the responsibility of the State for the
delivery of public services, including the Venezuelan judicial system and in this way,
validate the conclusion at which the majority of the judges arrived. Thus, in short, it
is the public judicial system what is being analyzed by this Court and it is this issue
on which the fundamental reasoning of this judgment was based. Ultimately, the
judicial system in Venezuela is required to have a very high, general and uniform
standard.
The first thing that must be taken into account, in my opinion, is the nature of the
service under question, the improvements and the difficulties entailed and what is
needed for its development. Once the foregoing has been verified, it is possible to
establish whether the system works poorly or with delay or if it simply did not work
at all. The judgment made no analysis in that respect.
Likewise, regarding the requirements for the admissibility of the state responsibility,
it is important to emphasize the requirement related to the damage.
It is necessary to mention, with accountability, that as to the damage, the instant
case did not represent a special or abnormal damage.
It is not special because the omissions and delays determined by the Court are not
addressed at the alleged victims only, inasmuch as, unfortunately, the delay and
other judicial deficiencies are common to all the members of the Venezuelan
community. The State has made efforts to solve the problems of the judicial system
and, in some cases, it had successfully remedied the situation. In fact, there are
satisfactory results as to the labor reform with the entry into force of the Organic
Law of Labor Procedure of the year 2002; nevertheless, as to the criminal matters
are involved, in spite of the entry into force of the Organic Code of Procedure in the
year 1998 (together with the subsequent reforms), the results have not been so
successful, maybe because it is the jurisdiction that had historically tried more cases
in the country.
Consequently, the damage under analysis in this case is neither abnormal, inasmuch
as it does not have more than the usual problems inherent to the functioning of a
public service, as is the Venezuelan justice or the limitations imposed on the
collective life. Definitely, it does not exceed the obstacles typical of the service.
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