41
151.The Commission alleged that “the State shall abolish the rules of disobedience in such a
way that it does not affect the free expression of criticism about the performance of public
entities and their members.” According to the Commission, “the military justice system has
been used to repress criticism, opinions and reports on the performance of its officers and
any crime that they have committed. To that end, the military justice has used the crime of
Insult against the Armed Forces and Insult to Superiors in particular.” In this regard, the
Commission alleged that “the mere existence [of such laws] discourages people from giving
their critical opinions about the performance of the authorities, given the threat of criminal
sanctions depriving them of liberty for up to 8 years.” As such, the Commission noted “that
despite the consensus of the American States about the need to repeal the laws of
contempt, the State of Venezuela in recent years has amended its criminal law to aggravate
the crime and extend to subjects and other public officials who previously were not
specifically protected under the Penal Code.”
197.
The representatives, although they did not submit specific allegations about the
crime of insult, they alleged that “when violating Article 13, 7, 8, [9, and] 25 of the
Convention, the Venezuelan State has additionally violated the general obligations
mentioned in Articles 1(1) and 2 of the Convention.” The representatives added that
“according to such provisions, the Venezuelan State had the obligation to adopt any
legislative measures and any other measures necessary to make such rights and freedoms
effective. That did not occur and, therefore, the Venezuelan State violated the provisions of
Article 1(1) and 2 of the Convention.”
198.
The State indicated that “reality prevents it from abolishing the ‘laws on
disobedience’ which, in some way, are an obstacle in view of the abuse and lack of respect
of the freedom of expression and in view of a situation that jeopardizes the State, and could
even influence on the independence of the country.” The State made reference to the
judgment of the High Court of Justice of the Constitutional Room of July 15, 2003 regarding
an action of unconstitutionality in relation to several Articles of the Criminal Code about the
“laws on disobedience”, dismissing the claim on unconstitutionality of Articles 141, 148,
149, 150, 151, 152, 227, 444, 445, 446, 447, 450 of the Criminal Code and partially
annulling Articles 223, 224, 225, and 226 of the Criminal Code.
199.
Article 2 forces the State Parties to adopt, pursuant to their constitutional
procedures and the provisions of the Convention, any legislative measures or other types of
measures necessary to make effective the rights and freedoms protected by the
Convention. However, the Tribunal reiterates that “the purpose of the contentious
competence of the Court is not to review the national legislations in abstract but to resolve
specific cases where it is alleged that an act by the State, against certain persons, is against
the Convention.”149
200.
The Court considers that the claims of the Commission regarding the alleged
incompatibility between the “rules of disobedience” in Venezuela and Article 2 of the
American Convention exceed the specific scope of this case. The Commission has defined
the laws of disobedience as “a type of legislation penalizing the expression that offends,
insults or threatens a civil servant in performing his official duties”. 150 Nevertheless, in this
149
Case of Gangaram Panday v. Suriname. Preliminary Objections. Judgment of December 4, 1991. Series C
No. 12, para. 50 and Case of Reverón Trujillo, supra note 12, para. 130, footnote 158. See also, International
Responsibility for the Promulgation and Enforcement of Laws in violation of the Convention (Arts. 1 and 2 of the
American Convention on Human Rights), Advisory Opinion OC-14/94 of December 9, 1994. Series A No. 14, para.
48.
150
Report on the Compatibility of Desacato Laws and the American Convention on Human Rights,
OEA/Ser.L/V/11.88. Doc 9. rev, February 17, 1995.
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