Inadmissibility decision; Subjects: ECONOMIC, SOCIAL AND CULTURAL RIGHTS, VENEZUELA (BOLIVARIAN REPUBLIC OF); [CESCR: UNO-Pakt I, Internationaler Pakt über wirtschaftliche, soziale und kulturelle Rechte; Pacte international relatif aux droits économiques, sociaux et culturels]
Volltext (verifizierbarer Originaltext)
GE.25-02932 (E) 150425 150425
Committee on Economic, Social and Cultural Rights
Decision adopted by the Committee under the Optional
Protocol to the International Covenant on Economic,
Social and Cultural Rights, concerning communication
No. 242/2021*, **
Communication submitted by:
Katherine Josefina Martínez de Orellana
(represented by counsel, International Service for
Human Rights, Centro de Justicia y Paz and
Acción Solidaria)
Alleged victim:
The author
State Party:
Bolivarian Republic of Venezuela
Date of communication:
17 September 2021 (initial submission)
Date of adoption of Decision:
14 February 2025
Subject matter:
Right to work and to job security of a human
rights defender in the health sector
Procedural issues:
Exhaustion of domestic remedies; manifestly
unfounded
Substantive issues:
Right to work; right to the enjoyment of just and
favourable conditions of work
Articles of the Covenant:
2 (1), 6, 7 (b), 12 and 13 (1)
Articles of the Optional Protocol:
2 and 3 (1) and (2) (e)
1.1
The author of the communication is Katherine Josefina Martínez de Orellana, a
Venezuelan national born on 23 February 1964. The author claims that the State Party has
violated her rights under articles 6, 7 (b), 12 and 13 (1), read in conjunction with article 2 (1),
of the Covenant. The Optional Protocol entered into force for the State Party on 10 January
2019. The author is represented by counsel.
1.2
On 27 November 2023, the Working Group on Communications, acting on behalf of
the Committee, decided to accept the State Party’s request to consider the admissibility and
the merits of the communication separately.
* Adopted by the Committee at its seventy-seventh session (10–28 February 2025).
** The following members of the Committee participated in the examination of the communication:
Aslan Abashidze, Lazhari Bouzid, Asraf Ally Caunhye, Laura-Maria Crăciunean-Tatu,
Charafat El Yedri Afailal, Peters Sunday Omologbe Emuze, Santiago Manuel Fiorio Vaesken,
Ludovic Hennebel, Joo-Young Lee, Karla Vanessa Lemus de Vásquez, Seree Nonthasoot,
Giuseppe Palmisano, Laura Elisa Pérez, Julieta Rossi, Preeti Saran and Michael Windfuhr.
United Nations
E/C.12/77/D/242/2021
Economic and Social Council
Distr.: General
24 March 2025
English
Original: Spanish
E/C.12/77/D/242/2021
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GE.25-02932
A.
Summary of the information and arguments submitted by the parties
Facts as submitted by the author
2.1
The author is a lawyer and human rights defender. Since 2008, she has led the Prepara
Familia association, which is devoted to the protection of hospitalized children and
adolescents and their families, mainly at the J.M. de los Ríos Children’s Hospital in Caracas.
She claims that she carries out her human rights advocacy work in an “extremely hostile”
climate. In this regard, she refers to numerous reports and pronouncements by the Office of
the United Nations High Commissioner for Human Rights (OHCHR),1 special procedure
mandate holders,2 treaty bodies3 and civil society,4 which reveal a pattern of stigmatization,
threats, criminalization and attacks directed against human rights defenders in the Bolivarian
Republic of Venezuela, including by high-ranking government officials.
2.2
In February 2017, an infectious outbreak in the nephrology department of J.M. de los
Ríos Children’s Hospital caused the deaths of 10 patients. On 5 July 2017, the author
denounced the precarious conditions of the Venezuelan healthcare system during a hearing
of the Inter-American Commission on Human Rights and, on 22 December 2017, she
requested precautionary measures to protect the lives and the personal integrity of patients in
the nephrology department of the Children’s Hospital. These measures were granted in
February 2018 and extended to patients in 13 of the hospital’s departments on 21 August
2019.
2.3
The author claims that the complaints she submitted to the Commission resulted in
her being subjected to pressure in the years that followed. In February 2018, upon her return
to the Bolivarian Republic of Venezuela from a meeting with the Commission, the author
noticed that security personnel from the hospital and the Bolivarian National Militia5 were
following and watching her. In April 2018, the authorities of the Children’s Hospital and the
Venezuelan Social Security Institute withdrew the accommodation and food benefit that
caregiving mothers had been receiving, in punishment for attending, with the author, a protest
outside the hospital over the scarcity of medicine and the shortcomings of medical treatment.
In May 2018, while the author was out of the country reporting to the Commission on
compliance with the precautionary measures, the director of the Children’s Hospital
convened a meeting with all medical department heads in which he described the author as
“an imperialist” who was “suing the hospital” and “disturbing the internal order” and said
that hospital managers were monitoring those doctors who shared information with the author.
In February 2019, during a working meeting with the Commission, a representative of the
State Party played a video in which the then director of the Children’s Hospital stated that
the hospital was in optimal condition and that the author was a liar who was making false
allegations. On returning to the Bolivarian Republic of Venezuela from this meeting, the
author learned that the director of the Children’s Hospital had decided to deny entry to the
hospital to all foundations that supported children and adolescents and caregiving mothers.
In May 2019, the government news portal Misión Verdad accused the author of giving a false
account of the causes of the health crisis in the country and of using “anti-Chavista media”
to blame the Government.
2.4
The author was barred from entering the Children’s Hospital until the arrival of a new
director in August 2019. However, on more than three occasions, hospital security removed
the author from the premises while she was meeting with doctors or caregiving mothers,
informing her that her access to the hospital was restricted pursuant to a memorandum issued
1 A/HRC/44/54; and A/HRC/44/20.
2 See, for example, the communication with reference VEN 5/2018 available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24053.
3 The author refers to E/C.12/VEN/CO/3, CCPR/C/VEN/CO/4, CEDAW/C/VEN/CO/7-8 and
CAT/C/VEN/CO/3-4.
4 The author refers, for example, to the 2020 annual report on the situation of human rights defenders
of the Centro para los Defensores y la Justicia (Centre for Defenders and Justice).
5 The author explains that the Bolivarian National Militia is a body of civilian volunteers who have
expressed a wish to participate in maintaining the security of the nation. They have been part of the
Bolivarian National Armed Forces since the adoption of the Organic Act on the Bolivarian National
Armed Forces in 2008. The hospital’s security personnel are not part of the Militia.
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by the former director, which remained in force. The author and her colleagues have been
unable to confirm the existence of the document purportedly barring her from the hospital,
despite requesting it from the hospital management.
2.5
On 12 January 2020, the author detected three intruders at one of her association’s
collection centres. These individuals threatened to report the author to the Special Action
Forces for keeping expired supplies “belonging to humanitarian aid and the leader of the
opposition”. The author and her colleagues immediately tried to report the incident at a local
police station, but no one took their statements and the officers there told them that they could
not go to the scene. After repeated calls to the emergency number, a different unit of the
Bolivarian National Police arrived at the scene, by which time the intruders had left, having
taken food and milk formula that were stored at the centre. The Bolivarian National Police
refused to receive the complaint, draw up a police report or notify the competent prosecutor
on the grounds that it had not detected a flagrant offence.
2.6
On 14 January 2020, individuals again broke into the Prepara Familia collection centre,
this time accompanied by the Bolivarian National Police, who removed boxes from the
premises. The Bolivarian National Police officers were not properly identified and did not
present a search warrant. The police officers questioned the author about the origin and
purpose of the food supplies and told her that they were to be taken away as part of a police
investigation. They ordered the author to accompany them to the police station to “continue
the procedure”, without permitting the presence of her lawyers. This incident gained
widespread media attention, with the result that a military unit arrived at the collection centre
and talked with the police officers, who then returned the goods they had seized and left the
premises.
2.7
On 16 January 2020, the author filed a complaint with the Chief Prosecutor’s Office
of the Caracas Metropolitan Area regarding the incidents of 12 and 14 January 2020. In her
complaint, the author described the fear these events inspired and their adverse consequences
for the performance of her work. Several times the author followed up on the complaint but
was informed by the Prosecutor’s Office that there was “no response”. As of the date of
submission of this communication, no progress had been made further to the complaint.
2.8
In view of the constant shouting and intimidation in front of the collection centre by
members of the community council6 demanding that the house and food supplies be handed
over to them, and the raids that occurred, the author and her colleagues decided to close the
collection centre and return the property to its owner.
2.9
On 11 May 2020, a deputy of the Legislative Council of the State of Táchira publicly
referred to “a lady with the surname Martínez” and Prepara Familia as possible participants
in the attempted armed maritime incursion against the Government that occurred on 3 May
2020. In August 2020, the Inter-American Commission on Human Rights granted
precautionary measures in the author’s favour, requiring the State Party to take the necessary
steps to protect her life and personal integrity. In its resolution, the Commission emphasized
that the State Party was aware of the situation of risk faced by the author and that it had failed
to act in that regard.7
2.10
In August 2021, the author, members of Prepara Familia and the families of
hospitalized children and adolescents participated in a demonstration in front of the
Children’s Hospital. During the demonstration, a public bus was driven onto the sidewalk
and in the direction of the demonstrators, forcing them to dodge it. The bus was then
positioned at the entrance of the Children’s Hospital with the intention of putting an end to
the demonstration.
6 Article 2 of the Organic Act on Community Councils defines community councils as “forums for
participation, coordination and integration between citizens and the different community
organizations and social and popular movements, enabling the people as an organized body to
exercise community government and the direct management of public policies and projects aimed at
meeting the needs and aspirations of communities in building a new model of socialist society based
on equality, equity and social justice”. They operate in parallel to local authorities such as mayors’
and governors’ offices.
7 Resolution 42/2020, precautionary measure No. 1039-17, 6 August 2020.
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2.11
The author’s access to the Children’s Hospital continued to be restricted for the
remainder of 2021 and she was forcibly removed from the hospital on multiple occasions.
Exhaustion of domestic remedies
2.12
The author claims that, in view of the harassment she experienced, she turned to the
competent authorities to file a complaint and obtain protection. Considering the rights at stake
and the nature of the violation committed, in particular the illegal searches of the collection
centre, it was reasonable to conclude that the appropriate remedy was criminal in nature. Her
initial attempt to file a complaint met with no response from the authorities. Although she
was able to file a complaint in relation to the second search, that complaint was still pending,
with no progress in the investigation, at the time of submission of the communication some
20 months later. The absence of an ex officio investigation denotes the ineffectiveness of the
remedy, and its unreasonable prolongation should exempt the author from the rule of prior
exhaustion of domestic remedies.
2.13
The Chief Prosecutor of the Caracas Metropolitan Area, who considered the author’s
complaint, was an acting prosecutor. The author refers to pronouncements by the Human
Rights Committee, the Inter-American Court of Human Rights and the Working Group on
Arbitrary Detention that temporary appointments of prosecutors jeopardize the fundamental
guarantees of independence and impartiality of justice. The author claims that the provisional
status of the prosecutor who considered her case demonstrates the ineffectiveness of the
remedy she sought, due to the lack of guarantees of independence and impartiality.
2.14
The author also claims that she was under no obligation to exhaust any other available
domestic remedy, as there were no suitable remedies, other than the criminal remedy, capable
of redressing the harm caused and the rights violated. Even if another suitable remedy existed,
the lack of impartiality and independence of the Venezuelan judiciary meant that no other
remedy would be effective. The author notes that the Human Rights Committee, the
Inter-American Court of Human Rights, the special procedure mandate holders of the Human
Rights Council and OHCHR have referred to the lack of independence of the State Party’s
judiciary due to insecurity in the tenure of judges and prosecutors and shortcomings in
investigations of human rights violations. The author further claims that she had no real
chance of challenging the ban on her entering the Children’s Hospital, as no official decision
had been issued. Any remedy sought in that regard would lack a reasonable chance of success.
Complaint
3.1
The author claims that acts of intimidation and stigmatization, illegal searches of her
association’s collection centre and restrictions of her access to the Children’s Hospital
violated her right to work under article 6 of the Covenant. The author argues that the right to
work includes the right not to be unfairly deprived of employment, including by third parties,
and also applies to persons whose profession is the defence of human rights.8 The author
claims that she is a human rights defender by profession and that the acts committed and
permitted by the State Party resulted in her being unfairly deprived of her employment. She
alleges that the stigmatization she experienced hindered her work, as it resulted in hospital
staff not wanting to share information with her. The restrictions and prohibitions on her
entering the Children’s Hospital impaired the delivery of food supplies and her other
face-to-face activities with caregiving mothers and hospitalized children and adolescents.
The author also claims that the raids on the collection centre of the association she manages
caused the loss of her work tools and workplace, as she was forced, out of a well-founded
fear, to relinquish the collection centre. The author further claims that all these restrictions of
her right to work did not have a legitimate objective but sought to prevent her from carrying
out her work as a human rights defender and were therefore unjustified.
3.2
Furthermore, the author claims that she was unable to exercise her profession in
adequate conditions of safety and that the State Party therefore violated her rights under
8 The author cites the African Commission on Human and Peoples’ Rights, Zimbabwe Lawyers for
Human Rights & Associated Newspapers of Zimbabwe v. Republic of Zimbabwe, communication
No. 284/03, 3 April 2009, paras. 178 and 179.
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article 7 (b) of the Covenant. She maintains that, in its general comment No. 23 (2016) on
the right to just and favourable conditions of work, the Committee recognized that States
Parties have an obligation to respect, protect and promote the work of human rights defenders
so that they can carry out their work free from any form of physical or mental harassment
(paras. 49 and 58). The author alleges that she was subjected to psychological harassment by
State agents and physical and verbal intimidation when she was forcibly prevented from
entering the Children’s Hospital. The author also states that two illegal searches of her
workplace were carried out, during which her work tools were stolen and it was insinuated
that she was involved in illegal activities.
3.3
The author claims that the State Party failed to take measures to ensure the full
realization of her rights to work and to safety at work. She alleges that, despite the State Party
being aware of her situation of real and immediate risk, especially given the precautionary
measures granted by the Inter-American Commission on Human Rights, it did not take
protective measures to allow her to carry out her work safely, nor did it provide an effective
remedy for the violation of her rights. In her specific case, the author alleges that no
investigation was conducted after the first intrusion at the Prepara Familia collection centre
and that State agents participated in a new illegal search two days later. The complaint she
filed on 16 January 2020 did not result in effective investigations or any protective measures
for the author. Consequently, she claims that the State Party has violated her rights under
articles 6 and 7 (b), read in conjunction with article 2 (1), of the Covenant.
3.4
Since the author’s work consisted in promoting the rights to health and education of
hospitalized children and adolescents and caregiving mothers, the author argues that the State
Party had an obligation to respect her work as a means to the full realization of the rights of
the persons she served. She claims that, by preventing her from freely carrying out her work,
the State Party also violated the rights to health and education of the persons she was assisting,
enshrined in articles 12 and 13 (1), read in conjunction with article 2 (1), of the Covenant.
State Party’s observations on admissibility
4.1
On 25 January 2022, the State Party submitted its observations on the admissibility of
the communication.
4.2
The State Party argues that the author did not exhaust the remedies provided for in the
domestic legal system before approaching the Committee. The alleged restriction of the
author’s access to the hospital was a de facto measure, understood as an action taken by the
public administration without following the applicable legal procedure or having previously
adopted a decision to serve as the legal basis for the action.9 The State Party indicates that, to
challenge such measures, the law provides for a specific ordinary remedy, namely an appeal
under article 65 of the Organic Act on the Settlement of Administrative Disputes. The author
did not file such an appeal, either directly or through her representatives.
4.3
The State Party reports that effective judicial protection, enshrined in the Constitution
of the Bolivarian Republic of Venezuela, includes the right to seek the extraordinary remedy
of constitutional amparo, instead of the ordinary remedy, provided that clear and precise
reasons are given for the decision to seek this extraordinary remedy. Consequently, the author
had both ordinary and extraordinary remedies at her disposal for bringing and resolving her
complaint. In the event of an unfavourable ruling by the court hearing her case, she would
have been able to pursue the judicial remedies of appeal, appeal in cassation and
constitutional amparo.
4.4
Even if the author were to substantiate her claims about the effectiveness of the
available domestic judicial remedies, this would not relieve her of the obligation to exhaust
them in order for the Committee to declare her communication admissible. The State Party
refers to the Committee’s jurisprudence, according to which the mere perception that
domestic remedies are not effective is not sufficient to exempt the author of a communication
from the requirement to try them.10 The basic principle of prior exhaustion of available
domestic remedies in the individual communication procedures of the human rights treaties,
9 Supreme Court, Political and Administrative Chamber, judgment No. 378 of 5 April 2018.
10 C.A.P.M. v. Ecuador (E/C.12/58/D/3/2014), para. 7.6.
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as set forth under article 3 (1) of the Optional Protocol, precludes the Committee from
considering the merits of a communication when domestic remedies have not been exhausted.
The Committee has indicated that, for the purposes of article 3 (1) of the Optional Protocol,
“available domestic remedies” are all remedies in direct relation with the events that gave
rise to the claimed violation and that, prima facie, may be reasonably considered as effective
for remedying the claimed violations of the Covenant.11 The State Party submits, therefore,
that the communication should be declared inadmissible under article 3 (1) of the Optional
Protocol for failure to exhaust domestic remedies.
4.5
The State Party notes that two years elapsed between the act that allegedly violated
the author’s right to work and the submission of the communication, during which time she
took no action to challenge the de facto measure that allegedly violated her rights.
4.6
The State Party argues that the author fails to describe how the alleged violation of
her substantive Covenant rights occurred. She does not explain how the alleged arbitrary
searches of a property in her possession resulted in the violation of her right to work or how
the State could be responsible for it. Nor does she explain how the restriction of her access
to the hospital amounts to a rights violation, since she did not work at the hospital, provide it
with services or have any employment relationship with it. While the author states that the
restriction had the effect of preventing her from carrying out activities for the promotion and
defence of human rights, such as giving training workshops and delivering food and medical
supplies, she does not explain how the prohibition on entry prevented her from holding
workshops or donating supplies. The State Party notes that the author herself states in her
communication that she “continued to carry out her work with the means at her disposal” and
that in August 2021 she participated in a demonstration with members of Prepara Familia
and the families of hospitalized children and adolescents. This contradicts her statement that
the prohibition on entering the Children’s Hospital prevented her from carrying out her
activities.
4.7
The State Party argues that, in the light of article 6 (1) of the Covenant and the
Committee’s general comment No. 18 (2005), the right to work consists in the possibility of
everyone to carry out a remunerated activity and thus gain a living by work. The State Party
considers that the author has not established that her work in promoting and defending the
rights of children and adolescents is a remunerated work activity within the meaning of
article 6 of the Covenant.
4.8
In order to duly substantiate her claim of a violation, the author is required to establish
specific facts on the basis of which the State Party allegedly violated her right to work. The
State Party concludes that the author’s account does not reveal any facts which could be
considered detrimental to any right contained in the Covenant and, consequently, that the
communication should be declared inadmissible under article 3 (2) (e) of the Optional
Protocol.
Author’s comments on the State Party’s observations on admissibility
5.1
On 7 July 2022, the author submitted comments on the State Party’s observations on
the admissibility of the communication.
5.2
The author reiterates that she was exempt from the obligation to exhaust domestic
remedies, since no domestic remedy, prima facie, can be reasonably considered as effective.
She claims that no judicial authority in the Bolivarian Republic of Venezuela provides
guarantees of independence and impartiality. For example, the author argues that, until
recently, 29 of the 32 members of the Supreme Court belonged to circles with close links to
the governing political party. An amendment to the Organic Act on the Supreme Court
reduced the number of judges to 20, of whom 18 have links with the Government and most
are under international sanctions for engaging in corruption, violating human rights or
undermining democracy. The author refers to reports of the Inter-American Commission on
Human Rights12 and the independent international fact-finding mission on the Bolivarian
11 Moreno Romero et al. v. Spain (E/C.12/69/D/48/2018), para. 8.2.
12 Inter-American Commission on Human Rights, 2016 Annual Report, chapter IV.B, “Human Rights
Developments in the Region: Venezuela”, paras. 68 and 69.
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Republic of Venezuela13 indicating that the Supreme Court has received direct orders from
the executive branch, causing the judiciary to cease to function as an independent branch of
government. An OHCHR report also highlighted that the Supreme Court exerts control over
lower court decisions, in particular in the area of criminal law, by pressuring lower court
judges. 14 The Supreme Court also has powers to review any decision and to appoint,
discipline and remove lower court judges, which allows government-friendly Supreme Court
justices to initiate proceedings against judges they consider troublesome. The author
reiterates that the vast majority of Venezuelan judges have been appointed on a temporary
basis and that several United Nations special procedure mandate holders have warned in their
reports on the Bolivarian Republic of Venezuela that the trial of persons by judges without
security of tenure constitutes prima facie a violation of the right to be tried by an independent
tribunal.
5.3
The author argues that, while exemption from the obligation to exhaust all domestic
remedies is an extraordinary situation, there are several precedents that the Committee could
use as reference. For instance, the author notes that, in considering three petitions against the
Bolivarian Republic of Venezuela, the Inter-American Commission on Human Rights found,
based on its numerous reports and for the purposes of the admissibility of the petitions, that
the administration of justice did not in principle guarantee due process of law in the country.15
According to the Commission, the repeated verification in its reports of the lack of judicial
independence in the Bolivarian Republic of Venezuela supported an extraordinary exception
to the duty to exhaust domestic remedies. The author adds that both the Inter-American Court
of Human Rights16 and the Committee on the Elimination of Discrimination against Women17
have similarly applied the exception to the rule of prior exhaustion of domestic remedies in
the absence of minimum guarantees of judicial independence and impartiality. The author
argues that, for the same reasons, the administrative, constitutional amparo and criminal
remedies theoretically available in the Bolivarian Republic of Venezuela cannot in principle
be reasonably considered as effective.
5.4
The author claims that no remedy would have been effective, given the lack of a
reasonable prospect of success in the circumstances of her case. Indeed, as she is perceived
as an opponent of the Government, the courts would not conduct fair proceedings but would
tend to uphold the impunity of the State. She contends that, in her case, the officials
responsible for the attacks against her were high-ranking, and that the independent
international fact-finding mission on the Bolivarian Republic of Venezuela and the
Inter-American Commission on Human Rights have highlighted that the judiciary does not
usually hold important public officials accountable. The author claims that, despite being
aware of her situation due to the precautionary measures granted in her favour by the
Commission and the criminal complaint she filed, the State Party failed to remedy the
violations at the national level, which is a clear sign of its unwillingness to remedy the
violation committed.
5.5
The author rejects the State Party’s argument that her claims regarding the
ineffectiveness of remedies are based on mere perception. She argues that the jurisprudence
cited by the State Party refers to unreasonable prolongation of remedies, whereas her main
argument relates to the lack of judicial independence and impartiality and reasonable chances
of success. Her claims in this regard are not based solely on her perception but on multiple
sources of objective and verifiable information, as well as her own experience.
13 Conference room paper on the detailed findings of the independent international fact-finding mission
on the Bolivarian Republic of Venezuela (A/HRC/45/CRP.11), para. 73, available at
https://www.ohchr.org/en/hr-bodies/hrc/ffmv/index; and A/HRC/48/69, para. 42.
14 A/HRC/44/54, para. 9.
15 Inter-American Commission on Human Rights, document OEA/Ser.L/V/II Doc. 322, “Report
No. 312/21”, petition 961-10, Nelson J. Mezerhane Gosen, 2 November 2021, paras. 33–35;
document OEA/Ser.L/V/II Doc. 7, “Report No. 7/21”, petition 1320-1, Julio Martín Herrera Velutini,
10 January 2021, paras. 15–17; and document OEA/Ser.L/V/II Doc. 8, “Report No. 8/21”,
petition 992-10, Guillermo Zuloaga Núñez, 10 January 2021, paras. 16–18.
16 Inter-American Court of Human Rights, Case of Dismissed Employees of Petroperú et al. v. Peru,
judgment of 23 November 2017, paras. 42–44.
17 Abaida v. Libya (CEDAW/C/78/D/130/2018), paras. 2.11, 5.3 and 5.4.
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5.6
The author claims that application of the remedy she sought was unreasonably
prolonged. She reiterates that her first complaint was not processed and that the second
complaint has yielded no results, as no initial investigative steps have been taken. Although
the prohibition on entering the hospital and the harassment by the authorities could have been
dealt with through the constitutional or administrative avenues, the author insists that the
criminal complaint was the appropriate remedy for the illegal searches and the threats that
prevented her from carrying out her work and undermined her safety at work. The author
points out that the State Party has not commented on the criminal remedy sought, its
unreasonable prolongation or the circumstances that make any other remedy in the State Party
ineffective in practice. In view of this lack of information, the author contends that the
Committee should rely on the information she provided and conclude that, prima facie,
domestic remedies in the State Party are not effective and that she was not required to exhaust
them.
5.7
The author maintains that the communication is sufficiently substantiated, since it
identifies the rights protected by the Covenant that were violated and the manner in which
they were violated. She stresses that the State Party has not adequately argued that the
communication is unsubstantiated, but merely questioned whether a violation of the
Covenant arises from the facts. As this issue is closely linked to the merits of the case, the
author requests the Committee to consider the admissibility and the merits together, in
accordance with the consistent practice of international law.
5.8
In response to the State Party’s observations, the author argues that article 6 of the
Covenant protects human rights advocacy work, regardless of whether it is paid or unpaid.
Referring to the Committee’s general comments No. 18 (2005) and No. 23 (2016), the author
points out that remuneration is not an essential criterion for determining whether work is
protected under the Covenant; this is reflected, moreover, in the words “includes” and “of
everyone” contained in articles 6 and 7 of the Covenant. The author argues that, respecting
the spirit of the Covenant and the pro persona principle of interpretation, it must be concluded
that human rights advocacy work, whether paid or unpaid, is also protected under the right
to work.
5.9
The author also rejects the State Party’s argument that there was no violation of her
right to work because she was able to continue her work. She contends that the jurisprudence
of the Inter-American Court of Human Rights establishes that the right to work is violated
not only when there is an absolute restriction, but also when the State unjustifiably interferes,
directly or indirectly, in its free exercise. The author claims that, although the restriction of
her professional activity is not absolute, it is giving rise to a violation of her rights under the
Covenant.
Third-party submission
6.1
On 19 August 2022, the International Commission of Jurists highlighted the growing
lack of independence of the State Party’s judiciary, which has not followed the procedure
and rules established in the Constitution for judicial appointments, but rather a politicized
process in which neither the professional qualifications nor the merit of candidates are
evaluated. The judges appointed to the Supreme Court in 2022 maintain close ties with the
governing political party and members of the military.
6.2
The Commission points out that most appointments of judges are provisional and do
not comply with constitutional requirements, and that judges can be arbitrarily dismissed at
any time. It reports that, under Venezuelan law, security of tenure is granted only when
competitive selection processes are carried out in accordance with the Constitution. It adds
that irregularities in the appointment of judges have had widely documented effects on the
independence of the judiciary. In a 2021 report, the Commission concluded, after analysing
key decisions of the Supreme Court, in particular those of its Constitutional Chamber, that
the Supreme Court showed signs of lack of impartiality by favouring the interests of certain
political powers.
6.3
Regarding remedies in the area of criminal law, the Commission highlights the lack
of independence of the Attorney General, who was not appointed in accordance with the
Constitution and who belongs to the governing political party. The Commission adds that
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prosecutors have no guarantees of independence from the Attorney General and that the
independent international fact-finding mission on the Bolivarian Republic of Venezuela has
documented that prosecutors at all levels receive instructions on how to handle cases. As with
judges, prosecutors are not appointed on the basis of merit and can be dismissed arbitrarily.
6.4
The Commission highlights additional obstacles and barriers faced by human rights
defenders in the State Party in obtaining judicial remedies, and concludes that there are no
judicial remedies available to persons who complain of human rights violations, given the
lack of independence and impartiality of judges and prosecutors.
B.
Committee’s consideration of admissibility
7.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 10 (2) of its rules of procedure under the Optional Protocol,
whether the communication is admissible.
7.2
The Committee notes the author’s claim that, by preventing her from freely carrying
out her human rights advocacy work, the State Party violated the rights to health and
education of the hospitalized children and adolescents and the caregiving mothers she
assisted, and therefore breached its obligation to take steps to achieve the full realization of
these rights under articles 12 and 13 (1), read in conjunction with article 2 (1), of the Covenant.
7.3
Under article 2 of the Optional Protocol, communications may be submitted by
individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be
victims of a violation of any of the rights set forth in the Covenant. The Committee recalls
that, where a communication is submitted on behalf of individuals or groups of individuals,
this must be with their consent unless the author can justify acting on their behalf without
such consent. The Committee observes that the author has not demonstrated that she is acting
on behalf of the hospitalized children and adolescents or the caregiving mothers. The
Committee also observes – considering that the author’s contact with these individuals was
not completely interrupted at the time she submitted the communication – that the author has
provided no evidence that these individuals gave their consent for her to act on their behalf
in the proceedings before the Committee, nor has she put forward any argument in the
communication to justify acting without such consent. The Committee therefore considers
that the author’s claims with regard to hospitalized children and adolescents and caregiving
mothers, based on articles 12 and 13 (1) of the Covenant, are inadmissible under article 2 of
the Optional Protocol.
7.4
The Committee also notes the State Party’s argument that the communication should
be declared inadmissible under article 3 (2) (e) of the Optional Protocol on the grounds that:
(a) the author has not established that her work as a human rights defender is a remunerated
work activity within the meaning of article 6 of the Covenant and (b) she has not established
the specific facts on which basis the State Party allegedly violated her right to work.
7.5
Regarding the first of these points, the Committee recalls that the right to work
enshrined in article 6 of the Covenant includes the obligation of States Parties to assure
individuals their right to freely chosen or accepted work, including the right not to be
deprived of work unfairly. 18 This obligation encompasses all forms of work, whether
independent work or dependent wage-paid work. 19 The Committee also recalls that the
concept of work and workers has evolved from the time of drafting of the Covenant to include
new categories, such as self-employed workers, workers in the informal economy,
agricultural workers, refugee workers and unpaid workers. 20 The Committee therefore
considers that the unpaid nature of the author’s work as director of the Prepara Familia
association does not exclude it from the scope of article 6 of the Covenant. Accordingly, the
Committee deems that it has jurisdiction ratione materiae to examine the author’s allegations
under article 6 of the Covenant. Furthermore, the Committee considers that the author has
sufficiently substantiated, for the purposes of admissibility, her claims under article 6 of the
18 General comment No. 18 (2005), para. 4.
19 Ibid., para. 6.
20 General comment No. 23 (2016), para. 4.
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Covenant in relation to the repeated acts of intimidation, stigmatization, illegal searches of
her association’s collection centre and restrictions on her access to the Children’s Hospital,
all of which allegedly prevented her from carrying out her human rights advocacy work.
7.6
The Committee also notes the author’s claims of violations of articles 6 and 7 (b), read
in conjunction with article 2 (1), of the Covenant, as the State Party neither took protective
measures to allow her to carry out her work safely, nor provided an effective remedy for the
violation of her rights. The Committee recalls that, under article 2 (1) of the Covenant, States
Parties must take steps to ensure the enjoyment of the rights recognized in the Covenant by
all appropriate means, including particularly the adoption of legislative measures. This
requirement includes the adoption of measures that ensure access to effective judicial
remedies for the protection of the rights recognized in the Covenant, since, as the Committee
noted in its general comment No. 9 (1998), there cannot be a right without a remedy to protect
it (para. 2). The Committee therefore concludes that the alleged absence of effective remedies
falls within the material scope of article 2 (1) of the Covenant. The Committee considers that
the author has sufficiently substantiated, for the purposes of admissibility, her claims under
articles 6 and 7 (b) of the Covenant, read alone and in conjunction with article 2 (1).
7.7
The Committee notes the State Party’s argument that the communication is
inadmissible under article 3 (1) of the Optional Protocol because the author failed to exhaust
available domestic remedies. The Committee recalls that article 3 (1) of the Optional Protocol
precludes it from considering a communication unless it has ascertained that all available
domestic remedies have been exhausted. The Committee also recalls its jurisprudence
according to which a State Party raising an objection of admissibility on the ground of
non-exhaustion of domestic remedies must prove that the author of the communication has
not exhausted available and effective remedies capable of redressing the alleged violation.21
7.8
In the present case, the Committee takes note of the State Party’s argument that the
author could have: (a) filed an appeal under article 65 of the Organic Act on the Settlement
of Administrative Disputes to challenge the restrictions on access to the Children’s Hospital;
(b) pursued the extraordinary remedy of constitutional amparo for the effective protection of
her rights; or (c) filed appeals to the higher courts or an application for constitutional amparo
against any judgments handed down. The Committee also takes note of the author’s
arguments that she was exempt from the obligation to exhaust domestic remedies because no
domestic remedy can, in principle, be reasonably considered as effective given the lack of
impartiality and independence of the judiciary; that she stood no real chance of challenging
the ban on entering the hospital in the absence of an official decision; and that she filed a
criminal complaint, which was the only suitable remedy against the illegal searches and
threats that prevented her from carrying out her work and undermined her safety at work, but
the application of this remedy was unreasonably prolonged.
7.9
With regard to the author’s argument, supported by the third party submission, that
she was exempt from prior exhaustion of domestic remedies because of the general situation
of lack of independence and impartiality of the judiciary, the Committee points out that it has
previously expressed its concern about the procedure for the appointment and removal of
judges and the large number of judges appointed to posts on a temporary basis, which may
be detrimental to the independence of the judiciary.22 The Committee stresses that States
Parties should exercise particular diligence when processing and resolving domestic cases in
which the protection of Covenant rights is sought. 23 At the same time, the Committee
considers that the mere perception that domestic remedies are not effective is not sufficient
to exempt the author of a communication from the requirement to try them.24
7.10
The Committee notes that, on 16 January 2020, the author filed a criminal complaint
regarding the alleged illegal searches of the collection centre of the association she leads, in
which she claimed that the searches affected her work. The Committee also notes that no
progress has been made in the investigation, despite more than four years having elapsed. At
21 Ziablitsev v. France (E/C.12/71/D/176/2020), para. 6.6; and Saydawi and Farah v. Italy
(E/C.12/75/D/226/2021), para. 6.4.
22 E/C.12/VEN/CO/3, para. 10.
23 C.A.P.M. v. Ecuador, para. 7.6.
24 Ibid.
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the same time, the Committee notes that the State Party has not commented on the criminal
remedy sought by the author or given reasons as to why its application has been prolonged.
7.11
The Committee recalls that, for the purposes of article 3 (1) of the Optional Protocol,
“available domestic remedies” are all remedies available to the author in direct relation with
the initial events that gave rise to the claimed violation and that, prima facie, may be
reasonably considered as effective for remedying the claimed violations of the Covenant.25
The Committee notes that the author’s main complaint is that acts of intimidation and
stigmatization, illegal searches of her association’s collection centre and restrictions on her
access to the Children’s Hospital violated her rights to work and to safe working conditions
under the Covenant. Therefore, the remedies that must be exhausted are those that relate
directly to the alleged actions that restricted and hindered the author’s work activities, and
that seek to repair the harm suffered and protect her from similar actions in future. In this
regard, the Committee considers that, by filing a criminal complaint concerning the two
intrusions at the collection centre, in which she raised the substance of her claims under
articles 6 and 7 (b) of the Covenant, the author attempted to exhaust an appropriate remedy
to adequately address the nature of the alleged violations of her rights to work and to safe
working conditions. The Committee notes that the author repeatedly followed up on the
progress of her complaint, and was informed that there was “no response” or any progress in
the investigations. In view of the time that has elapsed since the submission of the complaint,
and given that the State Party has not submitted observations justifying this prolongation or
questioning the effectiveness of the remedy, the Committee considers that these proceedings
have been unreasonably prolonged.
7.12
The Committee considers that the author attempted to exhaust a suitable and
appropriate remedy by filing a criminal complaint regarding the alleged searches and acts of
harassment. However, the lack of progress in processing this complaint, despite the author’s
repeated efforts, and the considerable time that has passed since it was filed, demonstrates
the ineffectiveness of this remedy. The Committee notes that the State Party has not provided
a satisfactory explanation for this inaction, nor has it demonstrated that effective measures
have been taken to investigate the alleged events. The Committee also considers that the
author was not required to exhaust other domestic remedies, such as the administrative or
constitutional remedies mentioned by the State Party.26 In any event, and in the particular
circumstances of the case, the State Party has not demonstrated that these remedies offered a
reasonable chance of success, given the credible allegations of involvement of State agents
in the reported events and the apparent unwillingness of the Prosecutor’s Office to investigate
the author’s complaint, aggravated by the threats and harassment allegedly directed at her by
State agents.27 The Committee therefore concludes that article 3 (1) of the Optional Protocol
does not preclude it from considering the author’s claims under articles 6 and 7 (b) of the
Covenant.
C.
Conclusion
8.
The Committee therefore decides:
(a)
That the communication is admissible insofar as it raises issues with respect to
articles 6 and 7 (b), read alone and in conjunction with article 2 (1), of the Covenant;
(b)
That, in accordance with rule 15 (2) of the Committee’s rules of procedure
under the Optional Protocol, the State Party shall be requested to submit to the Committee,
within four months of the date of transmittal of the present decision, written observations on
the merits of the communication;
25 See, inter alia, Hernández Cortés et al. v. Spain (E/C.12/72/D/26/2018), para. 6.2; and
Moreno Romero et al. v. Spain, para. 8.2.
26 Osmani v. Serbia (CAT/C/42/D/261/2005), para. 7.1.
27 Inter-American Commission on Human Rights, resolution 42/2020, precautionary measure No. 1039-
17, Katherine Martínez (Director of Prepara Familia), 6 August 2020.
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(c)
That such observations shall be communicated to the author under rule 15 (3)
of the Committee’s rules of procedure under the Optional Protocol, so that she may submit
comments on them;
(d)
That the present decision shall be transmitted to the State Party and to the
author.