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Venezuela: Lawyers’ freedom of expression and association

Like other citizens, lawyers are entitled to enjoyment of their rights to freedom of expression, belief, association and assembly. These fundamental freedoms acquire specific importance in the case of persons involved in the administration of justice.

The UN Basic Principles accordingly underscore and clarify the particular rights of lawyers to take part in public discussions of matters concerning the law, the administration of justice, and human rights; to join or form local, national or international organizations; and to attend the meetings of such groups or associations without suffering professional restrictions. They also emphasize that in exercising their rights to freedom of expression and association, lawyers must conduct themselves in line with the law and recognized standards and ethics of the legal profession.[1]

Furthermore, as set out above in sub-section 3, lawyers are entitled to form and join self-governing professional associations that represent their interests, promote their continuing education and protect their professional integrity.

 

Freedom of association

Although the Constitution of Venezuela guarantees freedom of association,[2] as set out in sub-section 3 above, Bar Associations in Venezuela have experienced various forms of improper interference in their organization and funding.

 

Freedom of expression

Freedom of expression is guaranteed by the 1999 Constitution of Venezuela, which recognizes that every person has the right to disseminate his or her ideas or opinions.[3]

However, the authorities do not always respect this freedom. As mentioned above in sub-section 4, the prosecution of lawyers involved in politically sensitive cases or in cases challenging the government’s interests has had a ‘chilling effect’ on lawyers exercising their right to freedom of speech, including in reference to matters related to the functioning of the legal system or related to protection of the rights and interests of their clients. The case of José Amalio Graterol[4] illustrates this situation:

  • On 3 June 2012, acting in defence of his client Judge María Lourdes Afiuni, Mr Graterol publicly criticized the handling of her case by the Venezuelan authorities and the situation of judicial independence in the country.
  • Following these public statements, Mr Graterol received threats and warnings. Mr Graterol and his co-counsel Mrs Thelma Fernández were confidentially informed that ‘something’ was being prepared against them in order to prosecute them for criminal offences.
  • On 4 June 2012, in a separate case, Mr Graterol was detained by order of a judge for refusing to continue with a trial in the absence of this client. On that date, the Criminal Procedural Code in fact prohibited trials in absentia.[5] This provision was however rapidly repealed.[6] In December 2012, Mr Graterol was convicted of “obstruction of justice” and sentenced to six months’ imprisonment; his appeal was denied on 15 July 2013.

The International Bar Association’s Human Rights Institute (IBAHRI) has expressed grave concerns in the case of Mr Graterol and the “creation of a ‘Graterol’ effect, which risks creating a chilling effect amongst the Venezuelan legal profession, with lawyers fearful of being deprived of their liberty for taking on politically sensitive cases or publicly expressing their views on justice-related matters.”[7]

 

Footnotes    (↵ returns to text)

  1. 1. UN Basic Principles on the Role of Lawyers, ”Principle

    Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.

     Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article

    Lawyers shall enjoy freedom of belief, expression, association and assembly; and in particular they shall have the right to: (a) Take part in public discussion of matters concerning the law and the administration of justice; (b) Join or form freely local, national and international organizations; (c) Propose and recommend well considered law reforms in the public interest and inform the public about such matters; (d) Take full and active part in the political, social and cultural life of their country.

    International Commission of Jurists,  Geneva Declaration: Principles on Upholding the Rule of Law and the Role of Judges and Lawyers in Times of Crisis (2008), ”Principle

    In times of crisis the stability and continuity of the judiciary is essential. Judges should not be subject to arbitrary removal, individually or collectively, by the executive, legislative or judicial branches. Judges may only be removed, by means of fair and transparent proceedings, for serious misconduct incompatible with judicial office, criminal offence or incapacity that renders them unable to discharge their functions. The right of judges and lawyers to freedom of association, including the right to establish and join professional associations, must at all times be respected. 

    International Bar Association (IBA), Standards for the Independence of the Legal Profession, ”Standard

    Lawyers shall not by reason of exercising their profession be denied freedom of belief, expression, association and assembly; and in particular they shall have the right to: a) take part in public discussion of matters concerning the law and the administration of justice; b) join or form freely local, national and international organisations; c) propose and recommend well considered law reforms in the public interest and inform the public about such matters. 

  2. 2. Constitution, Article 67.

    All citizens have the right of association for political purposes, through democratic methods of organization, operation and direction. Their governing organs and candidates for offices filled by popular vote, shall be selected by internal elections with participation of their members. No financing of associations for political purposes with State funds shall be permitted. Matters relating to the financing of and private contributions to associations for political purposes shall be regulated by law, as shall the oversight mechanisms to guarantee propriety as to the sources and handling of such funds.

    Law shall regulate as well, political and election campaigns, the duration thereof and spending limits with a view pursuing its democratization.

    Citizens, on their own initiative, and associations for political purposes, shall be entitled to participate in the electoral process, putting forward candidates. The financing of political advertising and election campaigns shall be regulated by law. The authorities of associations for political purposes shall not enter into contracts with organs in the public sector.

  3. 3. Constitution, Article 57.

    Everyone has the right to express freely his or her thoughts, ideas or opinions orally, in writing or by any other form of expression, and to use for such purpose any means of communication and diffusion, and no censorship shall be established. Anyone making use of this right assumes full responsibility for everything expressed.

    Anonymity, war propaganda, discriminatory messages or those promoting religious intolerance are not permitted. Censorship restricting the ability of public officials to report on matters for which they are responsible is prohibited.

  4. 4. International Bar Association Human Rights Institute (IBAHRI), The Criminal Trial of Venezuelan Lawyer Jose Amalio Graterol (2013).
  5. 5. Organic Code of Criminal Procedure (2001 version), Article 125(12), before the reforms of June 2012.
  6. 6. Compare Organic Code of Criminal Procedure, Article 125 (before amendment) and Article 127 (after the amendment pursuant to the Decreto No. 9.042, mediante el cual se dicta el Decreto con Rango, Valor y Fuerza de Ley del Código Orgánico Procesal Penal, 12 June 2012).
  7. 7. International Bar Association Human Rights Institute (IBAHRI), The Criminal Trial of Venezuelan Lawyer Jose Amalio Graterol (2013), p. 17.
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