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San Jose, Costa Rica – In one of few public hearings for the 100th period of sessions, and the last case involving Venezuela before its denunciation of the American Convention on Human Rights (Convention) becomes official, the Inter-American Court on Human Rights (IACtHR, Court) will hear arguments from Venezuelan political dissident and constitutional law professor Allan R. Brewer-Carías and the Venezuelan government on September 3 and 4, 2013. Professor Brewer-Carías is accused by the Venezuelan government of writing the “Carmona Decree;” the proposed governing document of the orchestrators of the April 2002 coup d’état that briefly unseated Chávez. After Chávez was reinstated, the government pursued a series of political and judicial maneuvers against Brewer-Carías that he says guaranteed that he could not receive a fair trial and that eventually forced him to leave to the United States in 2005. Brewer-Carías and his representatives seek to illustrate before the IACtHR how the lack of prosecutorial and judicial independence in the Venezuelan justice system led to his persecution and violations of the American Convention on Human Rights. The Venezuelan government, however, argues that Brewer-Carías’s rights have not been violated and calls on the IACtHR to respect its sovereign judicial and prosecutorial systems.

 Allan Brewer-Carías, a political opponent of Chávez since Chávez first came to power in 1999, asserts that he is a victim of a lack of judicial independence in the Venezuelan justice system. Brewer-Carías’s opposition to Chávez has never been a secret, and Brewer-Carías alleges that Chávez and the Venezuelan government’s prosecution of him are born of personal motivations because of his political beliefs. However, he resolutely refutes the Venezuelan government’s accusations that he attempted to unseat then-president Chávez during the 2002 coup attempt and that he played a leading role in drafting the Carmona Decree. After Chávez’s reinstatement, a Special Parliamentary Commission investigated those who orchestrated the coup, listing Brewer-Carías as a person of interest. Subsequently, in 2005, a provisional prosecutor formally charged Brewer-Carías with “conspiracy to change the Constitution violently by drafting the Carmona Decree.” However, an amnesty law enacted in 2007 retroactively pardoned most alleged participants in the coup. Brewer-Carías, who was outside of Venezuela when the law was passed, never received the benefit of amnesty. Recently, the Venezuelan government has repeated allegations against Brewer-Carías in its September 2012 letter of denunciation of the American Convention on Human Rights.

In 2007, Brewer-Carías, who had already fled Venezuela because he believed he could not get a fair trial, filed a petition with the Inter-American Commission on Human Rights (IACHR, Commission) stating that the Venezuelan government had violated his rights under the Convention. He alleges that judges who ruled in his favor or prosecutors who exercised independence as required under international standards were subsequently dismissed from their posts, resulting in at least four different provisional prosecutors assigned to the case in succession. In particular, he noted that his right to judicial protection under Article 25 had been manifestly violated by the lack of judicial independence.

In contrast, the Venezuelan government argues that Brewer-Carías’s rights have not been violated. The government notes that he was provided access to the documents in his criminal case in Venezuela. Although the trial remains on hold due to his absence from the country, the government refuses to nullify the proceedings until Brewer-Carías’s return. The government further argues that Brewer-Carías was granted all of the formal protections of an impartial trial, which, it notes, is not that the accused receives judicial decisions in his favor, but that the individual enjoys the possibility of efficient access to the justice system to defend his contentions and secure a response from the state grounded in law. The State, therefore, claims that the alleged violations are without merit because Venezuelan laws provide judicial protection, and were lawfully carried out in this case.

The Commission dismissed several counts in Brewer-Carías’s petition, but agreed with Brewer-Carías’s that Venezuela had violated several of his rights, including the right to a competent and impartial court (Article 8(1)) and the right to judicial protection (Article 25). In the Commission’s Admissibility Report, the Commission concluded that throughout the investigatory phase of the Brewer-Carías case in Venezuela, the state repeatedly denied Brewer-Carías meaningful access to his case file, the right to question witnesses against him, and the right to present evidence refuting the charges. In its decision on the merits, the Commission stated that because “the prosecution of Allan [Brewer-Carías] was conducted by temporary prosecutors and judges . . . the guarantees of independence and impartiality were lacking.” It further noted that the jurisprudence established by the IACtHR, the European Court of Human Rights, and the UN Basic Principles on the Independence of the Judiciary indicate that an adequate appointment process, non-removal of judges, and freedom from external pressure are all-important guarantees of judicial independence. When Venezuela refused to remedy these alleged wrongs after the Commission’s 2009 decision, the IACHR referred the case to the Inter-American Court of Human Rights.

Numerous human rights, rule of law, and intergovernmental organizations have denounced the absence of an independent judiciary in Venezuela. In a 2009 report on Human Rights in Venezuela, the IACHR noted that judges in Venezuela may be appointed or removed at the sole discretion of the Supreme Court of Justice, thereby threatening their independence and impartiality. Additionally, the Commission further emphasized concerns of the provisional status of judges—which affects their autonomy—stating that the problem of provisional judicial appointments has increased and worsened since the judicial restructuring process began with the enactment of the 1999 Venezuelan Constitution. Whether the Court will agree that Venezuela’s judiciary has denied Brewer-Carías’s right to a competent and impartial court, as well as judicial protection, will be decided after his September 3rd and 4th public hearing. Venezuela’s withdrawal from the jurisdiction of the Court will further complicate whether the State will comply with the Court’s final judgment.

* The writers are members of the UNROW Human Rights Impact Litigation Clinic observing the hearing of Allan R. Brewer Carías v. The Bolivarian Republic of Venezuela in the Inter-American Court of Human Rights. The staffs of the UNROW Human Rights Impact Litigation Clinic and the Human Rights Brief contributed additional research and editing in Washington, D.C.