The Applicability of the American Convention on Human Rights
lot has been discussed, at an academic and practical
level, about the
nature of the relation between international law and domestic law. The following
question is being asked constantly: In the event of a conflict between the provisions
of a ratified international treaty and the internal legal provisions of a State having
ratified that treaty, what provisions should be applied?
There are different ways to solve problems of this nature in the world's legal
systems, but there is a constant belief that possible conflicts must be resolved under
each affected country's constitutional law.
Nowadays, when there is general conscience of the need to protect human
rights guaranteed by international treaties that have been, directly or indirectly, made
part of the civilized and democratic nations' domestic law, one must give thought to
the effectiveness of such nations' guaranteed protection, with particular reference to
the case of Venezuela.
There is no express legal rule that provides that an international treaty "and
in our case, the American Convention on Human Rights ("A.C.H.R." or "Convention")
or the United Nations International Covenant on Civil and Political Rights ("I.C.C.P.R."
or "Covenant")" ranks higher than any other provision of domestic law. Some
solutions have been sought, however, and they vary according to the nature of the
constitutional law of the States party to the treaties. For some countries, an
international treaty may expressly be incorporated into a State's domestic law "it is
the case of Austria"; for other nations, the international treaty ranks higher than
regular legislation (solution of art. 55, French Constitution); for other countries, on
their part, international treaties have the same rank as ordinary laws; last, for a
reduced number of States, treaties have no internal legal force but in cases where a
special enabling parliamentary act expressly states that a treaty is part of domestic
law. Needles to say that, when referring to treaties in the above mentioned systems,
we are basically thinking of those related to human rights.
Let us review the case of Venezuela with reference to the American
Convention on Human Rights and the International Covenant on Civil and Political
Rights. Article 128 of the Venezuelan Constitution provides:
Art. 128." International treaties or agreements entered by the National
Executive must be approve by special act of Congress in order that
they may be valid, except when they are meant to execute or perfect
preexisting obligations of the Republic or when they apply principles
expressly recognized by it or when they execute ordinary acts of
international relations or when using powers expressly vested by law on
the national Executive " (Added bold characters)
On another hand, the same National Constitution, when referring in Title III to duties,
rights and guarantees, expressly provides:
Art. 50." The enunciation of rights and guarantees in this Constitution
should not be construed as a refusal of others that, being inherent to
the human individual, are not expressly stated in it.
A review of Venezuelan constitutional law "we shall not go deep into it for
reasons
of space" lets us say that Venezuela is part of that group of States who award to the
A.C.H.R, and to the I.C.C.P.R. a rank that is higher than that of regular laws, i.e. the
rank of a constitutional law.
Now then, getting back to the level of reality, the following questions must
be made: Does Venezuela comply with its obligation to award preference to the
Convention's provisions in cases of conflict? Has Venezuela met its legal commitment
to reform its domestic legislation in order to adapt it to the Convention's
requirements? Do judges refuse to apply provisions of domestic law that violate
guarantees provided by the Constitution and the Convention, knowing that they are
empowered to do so under diffuse control? The answer to these questions has to
be, unfortunately, negative. We may give several examples:
Article 8(2) of the Convention provides that " Every person accused of a criminal
offense has the right to be presumed innocent long as his guilt has not been proven
according to law"" Venezuela, on the contrary, presumes guilt when, as a general
rule, judges issue detention orders during the preliminary inquisitorial phase of the
trial, without having legally determined such guilt.
Article 8(1) of the Convention provides that "Every person has the right to a hearing,
with due guarantees and within a reasonable time, by a competent, independent,
and impartial tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the determination of his
rights and obligations of a civil, labor, fiscal, or any other nature". Venezuela violates
when its judges issue detention orders against persons who "prevented by the absurd
and illegal secret of the inquisitorial phase" do not know of what they have been
accused nor what evidence may there be against them; Venezuela has created special
courts to judge individuals under alleged commission of crimes having occurred prior
to
the creation of those courts, rather than trying them through preexisting courts. (Added
bold characters).
Article 8(2)(f) of the Convention provides " the right of the defense to examine
witnesses present in the court and to obtain the appearance, as witnesses, of
experts or other persons who may throw light on the facts". Venezuela violates the
Convention when its judges, during the inquisitorial phase, do not permit that suspects
being investigated nor their counsel may examine the witnesses in such phase whose
deposition, unchallenged, is used to order detention. (Added bold characters).
Under article 8(2)(h) of the Convention every indicted person has the "right to
appeal
the judgment to a higher court" The Venezuelan State does not comply with the
Convention when, in trials before the Supreme Court of Justice against the President
of
the Republic, as sole instance, no right of appeal or review is provided. (Added bold
characters).
We have only mentioned a few cases where provisions of the American
Convention on
Human Rights have been violated. We could refer others. For the time being, let us just
remind that the State of Venezuela has done very little to adapt its legal system to the
commitments binding it legitimately. If we have entered the road towards
modernization
and development of Venezuela with economic and fiscal measures aimed at such end,
we must also take the road leading to the establishment of the rule of law, by
implementing a truly autonomous, capable, independent judiciary, respecting the most
fundamental human rights.
BIBLIOGRAPHY
Héctor Fix-Zamudio, El Derecho Internacional de los Derechos Humanos en las
Constituciones Latinoamericanas y en la Corte Interamericana de Derechos
Humanos, en "El Mundo Moderno de los Derechos Humanos - Ensayos en Honor
de Thomas Buergenthal", Instituto Interamericano de Derechos Humanos, San
José, Costa Rica, 1996.
Rudolf Bernhardt, The Convention and National Law, en "International Human
Rights in Context - Law, Politics, Morals", Clarendon Press, Oxford, 1966.
URL: http://www.internet.ve/analitica
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