(…) The Court considers necessary to note that the reason or purpose of a particular act of
State authorities is relevant to the legal analysis of a case160, because a motivation or a
different purpose of the rule that grants the powers State authority to act, can show whether
the action may be considered arbitrary161 or a misuse of powers. In relation to this, the Court
takes as its starting point that the actions of State authorities are covered by a presumption
of lawful behavior162. And therefore unlawful conduct by state authorities must appear
proven to rebut the presumption of good faith163.
166.
The Commission considers that all these elements are consistent with each other and allow to
reach the conviction that the termination of contracts of Rocío San Miguel Sosa, Magally Chang Girón, and
Thais Coromoto Peña, constituted an act of misuse of power in which the existence of a discretional power was
used in the contracts as a veil of legality for the true motivation to punish the victims for their expression of
political opinion by signing the petition for the recall referendum. This implicit sanction constituted a violation
of political rights and an indirect restriction on freedom of expression.
167.
Consequently, the Commission concludes that the State of Venezuela violated the rights
established in Articles 23.1 and 13.3 of the American Convention, in conjunction with Article 1.1 thereof, to the
detriment of Rocío San Miguel Sosa, Magally Chang Girón, and Thais Coromoto Peña. Also, by finding that these
violations took place in the context of a widespread practice of retaliation for the expression of political
opinions under the recall referendum, the Commission considers that the State also violated its obligations
under Article 2 of the American Convention.
3.
Analysis of whether the dismissal constituted an act of discrimination based on
political opinion
168.
Of particular relevance to the analysis of the alleged discrimination, the Commission stresses
that in accordance with the indications listed in the previous section is that of the total of 23 employees at the
National Border Council to date the only those who signed the presidential recall referendum request were
notified of their contract termination, as is the case of the three alleged victims. According to her statement, in
160 I/A Court H. R., Case of Granier et al. (Radio Caracas Television) v. Venezuela. Preliminary Objections, Merits, Reparations
and Costs. Judgment of June 22, 2015. Series C No. 293, para 189. Quoting. Case of the Supreme Court of Justice (Quintana Coello et al.) v.
Ecuador. Preliminary Objection, Merits, Reparations and Costs. Judgment of August 23, 2013. Series C No. 266, para. 173, and Case of the
Constitutional Tribunal (Camba Campos et al.) v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 28,
2013. Series C No. 268, para. 210.
161 I/A Court H. R., Case of Granier et al. (Radio Caracas Television) v. Venezuela. Preliminary Objections, Merits, Reparations
and Costs. Judgment of June 22, 2015. Series C No. 293, para 189. Quoting. Case of the Supreme Court of Justice (Quintana Coello et al.) v.
Ecuador. In this regard, the European Court of Human Rights has taken into account the real purpose or grounds that the State authorities
had when exercising their functions, in order to determine whether or not there had been a violation of the European Convention on
Human Rights. For example, in the Case of Gusinskiy v. Russia, the European Court considered that the restriction of the victim’s detention,
authorized by Article 5.1(c) of the European Convention was applied not only in order to make him appear before the competent judicial
authority, considering that there were reasonable indications of the commission of an offense, but also in order to oblige him to sell his
Company to the State. In the case of Cebotari v. Moldavia, it declared that Article 18 of the European Convention had been violated because
the Government had not convinced the Court that there were reasonable indications that the applicant had committed an offense, and the
Court concluded that the real purpose of the criminal proceeding and the applicant’s detention was to put pressure on him and, thus,
prevent his company “Oferta Plus” from suing before the Court. Finally, in the case of Lutsenko v. Ukraine, the European Court determined
that the deprivation of liberty of the applicant, authorized by Article 5.1(c), had been applied not only in order to make him appear before
the competent judicial authority, because there were reasonable indications that he had committed an offense, but also for other reasons
related to the prosecutor’s intention of accusing the applicant for publicly expressing his opposition to the charges against him. Cf.
European Court of Human Rights, Case of Gusinskiy v. Russia, Judgment of 19 May 2004, paras. 71 to 78; Case of Cebotari v. Moldavia,
Judgment of 13 February 2008, paras. 46 to 53, and Case of Lutsenko v. Ukraine, Judgment of 3 July 2012, paras. 100 to 110.
162I/A Court H. R., Case of Granier et al. (Radio Caracas Television) v. Venezuela. Preliminary Objections, Merits, Reparations and
Costs. Judgment of June 22, 2015. Series C No. 293, Quoting. Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador, para.
173, and Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador, para. 210.
163 I/A Court H. R., Case of Granier et al. (Radio Caracas Television) v. Venezuela. Preliminary Objections, Merits, Reparations
and Costs. Judgment of June 22, 2015. Series C No. 293, paras. 189. Quoting. Case of the Supreme Court of Justice (Quintana Coello et al.) v.
Ecuador, para. 173, and Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador, para. 210.
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