VENEZUELA: DOES THE PENAL CODE LIMIT FREEDOM OF EXPRESSION?

Report from Sumate.org

1. On December 9, 2004 , the National Assembly approved by simple majority (83 out of 165 votes) the second review of the Bill on the Partial Reform of the Venezuelan Penal Code. On March 16, 2005 , following the incorporation of a number of modifications suggested by the President of the Republic, this bill became law.

2. The reforms to the Penal Code have caused serious concern within several sectors of Venezuelan society, due to the effect they have on the Venezuelan prison system and to the classification as crime of new activities viewed as contempt. In the reformed Penal Code all opinions, expressions of dissent or manifestations, whether expressed in public or in private, against any public official, can be viewed as an offense and can thus be punishable with 6 to 30 months in prison.

3. The new Penal Code includes articles that sanction offences such as: the use of language deemed to be insulting to the President of the Republic (Article 147), the Vice-President, the Justices of the Supreme Court, and members of several Public Powers, Ministers, Congressmen or the Military High Command (Article 148), these are punishable with 6 to 30 months in prison; instigation to infringe the law (Article 283) or defy it (Article 285), punishable with 3 to 6 years in prison; causing panic by divulging information through a media outlet (Article 297), punishable with 2 to 5 years in prison and blocking public roads (Article 357), 4 to 8 years in prison. These newly classified crimes, together with the serious penalty they entail, limit "democratic" life and constrain the activities of reporters, whose work is further limited by the new Law of Social Responsibility in Radio and Television.

4. According to experts, the new Penal Code represents an attempt at classifying political dissidence as a "crime" and impede the types of public demonstrations that have taken place in Venezuela during the last two years, as penal law is used as a weapon to intimidate the opposition and the so-called "contempt crimes" are punished with harsher sentences. One of the best-know recent cases is that of General Francisco Usón, who was accused of contempt of the Armed Forces and sentenced to a six years jail term for expressing an opinion on television regarding the use of a flame thrower in an incident in which a number of soldiers lost their lives.

5. According to a report by the Inter-American Human Rights Commission contempt laws are incompatible with the American Human Rights Convention. The Commission declared void the norms regarding contempt laws and ever since 1994 has been urging the OAS Member States to adapt their legislations to international human rights obligations.

6. When the Supreme Court of Justice received a petition to void the Penal Code norms that classify as crime language deemed to be insulting to public officials and institutions, its Constitutional Chamber issued Sentence No.1942 reaffirming the classification as crime of such offenses and established the possibility of "previous judicial censorship". This sentence includes arguments, expressions and decisions that contravene the Inter-American Human Rights Commission's doctrine, jurisprudence issued by the Inter-American Human Rights Court, as well as the November 22, 1969 American Human Rights Convention of San Jose, Costa Rica, which became mandatory in Venezuela when the corresponding approval law was published in the Official Gazette No. 31.256 of June 14, 1977 .

7 . International organizations such as the Inter-American Press Association (SIP) and Human Rights Watch have publicly expressed their concern regarding the approval of the new Penal Code and the effects it will have on the rights and freedom of expression of the Venezuelan people. For example, José Miguel Vivanco, of Human Rights Watch, said literally that " Venezuela has mocked the international human rights principles that protect freedom of expression".