Category Archive: Publicaciones

Nov 04

DECLARATION OF THE NATIONAL COLLECTIVE OF HUMAN RIGHTS DEFENDERS REGARDING THE PLURINATIONAL CONSTITUTIONAL JUDGMENT NO. 106/2015 RESTRICTIONS TO THE FREEDOM OF ASSOCIATION

1. The National Collective of Human Rights Defenders is a petition that brings together at a national level organizations and persons of Civil Society that actively promote and defend the human rights of different social groups; in the quest to contribute to the participation and interaction of Human Rights organizations in Bolivia, and the demand for the effective exercise of fundamental freedoms and rights of Bolivian civil society, with respect to the democracy and plurality of actors.

 

2. The National Collective of Human Rights Defenders presents their observations and conclusions against the declaration of the constitutionality of Article 7.II of Law 351 ‘of the formation legal entities’ from March 19 2013 and Article 19 Section (g) of Supreme Decree (DS) No. 1597 “partial regulation of the Law of the formation of legal entities’ of June 5 2013, through the Constitutional Judgment No. 106/2015 of December 16 2015 dictated in Sala Plena of the Plurinational Constitutional Court of Bolivia.

3. It strikes the Collective that, in May 2016, the Constitutional Judgment No. 106/2016 was published on the official webpage of the Plurinational Constitutional Court, in spite of what the Judgment said dating from December 16 2015, there was no knowledge of the date of notification of the Judgment by the Defensoría del Pueblo, and one can question that the notice was not made except after the change of management of the Defensor del Pueblo in May 2016.

 

I. PRECEDENTS

4. On November 26 2014 the Defensoría del Pueblo presented to the Plurinational Constitutional Court (TCP) the abstract of an Action of Unconstitutionality insisting upon the unconstitutionality of the articles mentioned in (2). The Action was accepted December 4 2014, and the defense of the Presidency and Vice-Presidency were presented April 9 and 10 of 2015 respectively. In May two Amicus Curiae were presented before the TCP, one delivered by the Special Rapporteur of the UN on the right to freedom of association and peaceful assembly (Maina Kiai), the other presented by Dr. José Miguel Vivanco, Executive Director for the Americas for Human Rights Watch. June 11 2015, the TCP sent out a Constitutional Decree preparing the suspension of the deadline for the purpose of collecting supplementary documents, in spite of the fact that the abstract of the Action of Unconstitutionality was legally founded, and therefore does not in any way deal with facts that need verification. On December 26 2015 the TCP passed the Constitutional Judgment of this declaration.

 

II. THE MANDATE OF THE PLURINATIONAL CONSTITUTIONAL COURT (TCP)

5. The Political Constitution of the State (CPE) established that the TCP needs to safeguard the supremacy of the Constitution, to exercise control of constitutionality, and preserve the respect and validity of rights and constitutional guarantees[1],

6. The constitutional supremacy is understood as respect for the hierarchy that the Constitution enjoys above all other norms in the Bolivian legal system and which means to implement in practice the constitutional law established by the Constitution[2], the same that is integrated by the International Treaties and Conventions on the subject of Human Rights, and the norms of Community Law ratified by the state. The TCP is the supreme guardian of the CPE and should work under the principle of conservation of the norms, implying the adoption of an interpretation consistent with the constitutional text.[3]

7. The law establishes that the TCP should implement constitutional law in concordance with the following principles: of plurinationalism, judicial pluralism, multiculturalism, complimentarity, social harmony, independence, impartiality, legal security, transparency, efficacy, speed, generosity, culture of Peace.[4] This document refers to three of these: the principle of independence, meaning that constitutional law is not suppressed by any other public entity; the principle of impartiality, meaning that constitutional justice should follow the Constitution and the Law, those matters known by the TCP will be resolved without interference of any nature, without prejudice, discrimination or differential treatment that would interfere with its objectivity and sense of justice; the principle of legal security, understood as the objective application of the law, so that people know their rights, guarantees and obligations, and have confidence and foreknowledge of all actions of state bodies.

 

III. THE ARTICLES DECLARED CONSTITUTIONAL

8. The Defensoría del Pueblo demanded from the TCP that they guarantee the right of equality and the prohibition of discrimination, in reference to the unconstitutionality of Article 7 (II) of Law 351 in the phrase ‘the statutes of non-governmental organizations and foundations should mention in their content, in addition to the requirements of the previous paragraph’

Law 351 establishes that only NGOs and foundations should include an additional condition in their statues, creating an inequality that not even the TCP itself can justify in an objective manner, as it places in different legal positions associations of the same nature, that present similar conditions, conjunctions and circumstances, also recalling the principle of material equality, by which “one should treat the equal as equal and the unequal as unequal”.

The principle of material equality seeks to correct inequalities, in order to promote conditions by which equality will be true and effective. In this sense, one should adopt measures in favour of groups that are discriminated against or marginalized, and to protect especially those people who because of their economic, physical or mental situation find themselves in manifestly inferior circumstances. Thus the right to equality imposes the duty to not impose a legal egalitarianism among those who have found themselves in a diversity of situations, that is to say, the State has an obligation to create a different legal system for those that find themselves disadvantaged in the vast and complex fields of political, economic, social and cultural life.

From that interpretation, one cannot understand how the regulatory contexts established by Law 351 could affect its actual scope; the TCP did not provide the reasoning for the different treatment between subjects of this law. The TCP failed to demonstrate the necessity for that inequality; the measure does not follow a legitimate objective (because it was not demonstrated), and much less guarantees a proportional and effective measure to secure equality.

9. Likewise, the Defensoría del Pueblo brought legal action for the unconstitutionality of Article 7(II) in the ruling: “The statutes of non-governmental organizations and foundations should mention in their content, in addition to the requirements of the previous paragraph: “ The contribution to social and economic development; (…)”

The condition refers to the completion of the social and economic development of the country, which will be difficult to assess, when dealing with organizations promoting and defending Human Rights. In this sense, the Inter-American Commission of Human Rights (CIDH) has understood in their “Second Report on the situation of Human Rights defenders in the Americas”[5] that “the States need to promote the exercise of freedom of association and therefore ensure that the registration of Human Rights organizations in public records des not impede their work, facilitating in turn that the organizations obtain recognition as legal entities. The registration of an association for the defense and promotion of human rights should result in a declarative and not constitutive effect, aimed at facilitating their development in accordance with the objective set out by their members, as well as internal regulations and procedures.

Failure to comply with the principles of independence, impartiality and judicial security by the TCP (cited in point 6), is manifested in what the TCP as executive body has undertaken, the body that determines public policies of development, moving away in this manner from their duty of objectivity and sense of justice, fostering doubt and lack of foresight of the rights constituted by organizations subjected to Law No. 351.

Freedom of association protects the right to form non-profit associations and organizations, but not the right to form for-profit societies, according to a decision by the Committee of Human Rights.[6] This ruling we raise as the main point of discussion, and it is this that brings into question the decision of the TCP for three reasons: 1. The freedom of association protected in Article 21 Section 4 (Civil Rights) of the Constitution, has been widely recognized as a substantial civil right that provides protection against arbitrary interference by the State. 2. The subject of the application of Law No. 351 and Supreme Decree 1597 are in all cases non-profit entities. 3. Article 308 (i) refers to other ways of economic organization that affect businesses, and therefore affects subjects seeking profit and those recognized by the State, respecting and protecting (as a private initiative) to “contribute to the social economic development and strengthen the economic independence of the state”. Thus the same article in section (II) guarantees freedom of enterprise and the fill exercise of business activities, an issue that is distant and alien to all social organisations, NGOs, foundations, non-profit organizations and religious and spiritual entities subject to Law 351, today declared constitutional by a biased TCP, far from independent, and incapable of assuring the judicial security to which Bolivians have the right.

The Committee observes that the mere existence of reasonable justifications and objectives to limit the right of freedom of association is necessary to avoid a real danger, not just hypothetical, for national security or democratic order and that the adoption of less intrusive methods would not be sufficient to achieve the same aim.[7]

10. Finally, the abstract of the Action of Unconstitutionality demands the unconstitutionality of Article 19 (g) from Supreme Decree 1597, Article 19 (Revocation of legal personhood), which in its text states: “Legal personhood will be revoked for the following causes: (…) (g) for the failure to comply to the sectoral policies and/or regulations, previously reported by the Minister of the area”.

The revocation of legal personhood is a very serious measure, and makes the right to freedom of association null and void. In consequence it must be used with great care and requires strong motives and justifications in a concrete case. However, Article 19 (g) of Supreme Decree 1957 prescribes a consequence that is general, dangerous and debilitating for associations, without motive or justification.

One cannot consider how to meet these criteria of proportionality, and still more, one cannot really even consider the proportionality and the legitimate objective which one should serve, as it is not detailed or clarified. Decisions that have such a great impact should be sanctioned by an independent and impartial court rather than coming from a simple prior notification from an executive authority as is stipulated in Article 19 (g) of Supreme Decree 1597.

 

IV. THE NEGLECT BY THE TCP OF INTERNATIONAL TREATIES

11. The TCP, through Judgment 105/2015, expressed that it would not develop a constitutional countermeasure regarding the regulations described in international documents “because the arguments raised by the plaintiff were not referring to them, and although they were alluded to in the action, they were not duly founded”.

12. The TCP only can demand formalities that are strictly necessary to achieve the aims of the process, in this case the TCP through their Commission of Admission considered that the Action complied with the requirements established in the Law[8], after which the TCP corresponded to declare themselves in support of a legally reasonable verdict, assuring furthermore that their arguments would effectively provide pressure for parts of the process, as well as the population in general.[9]

13. The TCP did not argue or justify their decision, the right to association was not interpreted in accordance with international treaties of Human Rights, such as is established in the Constitution.[10]

 

 

For all the above, social organizations, NGOs, non-profit foundations and civil entities, face the unfounded and disproportional restriction of the freedom of association, established in the Law and confirmed by the Constitutional Plurinational Court, through this declaration:

WE CLARIFY that, the signatories of Organizations of Civil Society, do not look to defend particular interests, on the contrary, we speak for the respect and guaranty of fundamental rights, the defense of Human Rights overall and of the right to freedom of association in particular.

WE DEMAND that, the right to free association be understood not only as the right to form an organization, but also the full exercise of this right, with the possibility to put in place an internal structure, programs and activities, specified and guaranteed by the Constitution, which establish as the only limit the right to associate with a lawful purpose.

WE DEMAND from the Constitutional Plurinational Court its full submission to the Constitution in the completion of its functions and responsibilities to guarantee, promote and reinstitute fundamental rights and liberties, with special emphasis on the freedom of association.

WE DEMAND the impartiality and institutionality of the Constitutional Plurinational Court, since independent courts and conclusive judgments can provide support to activists, defenders of Human Rights, to stop abuses and promote social change.

For respect for democracy, independence of public bodies and the guarantee of Human Rights

 

National Collective of Human Rights Defenders – Bolivia

 

 

 

[1] Article 196, Political Constitution of the Plurinational State of Bolivia

[2] Article 410, Political Constitution of the State. Agreement with Article 256 (I), which establishes that international treaties and instruments regarding the DDHH that have been signed, ratified or to which the state has adhered, those rights that they declare more favorable than those contained the Constitution will be applied in a preferential manner. The same article in point (II) establishes that the rights recognized in the Constitution will be interpreted in accordance with international treaties of the DDHH when they anticipate these to be more favorable norms.

[3] Article 4 (Constitutional Supremacy) Law No. 027 “Law of the Constitutional Plurinational Court” of July 6 2010

[4] Article 3 (Principles of Constitutional Justice) Law No. 027 “Law of the Constitutional Plurinational Court” of July 6 2010

[5] OEA/Ser.L/V/II.Doc 66, December 31 2011

[6] Committee of Human Rights, M.G.B. case and other c. Trinidad and Tobago par. 2.1 (1989)

[7] Committee of Human Rights, Aleksander Belyatsky and others case c. Belarus (2007); Viktor Korneenko and others case c. Belarus (2006)

 

[8] Article 24, Procedural Constitutional Code

[9] Article 3, Procedural Constitutional Code

[10] Article 256, State Political Constitution

Sep 10

Prisoner spends nine months unable to see a doctor

Página Siete 10/09/16

Apolo Case

Juan Bascopé, a prisoner in San Pedro and accused for the Apolo case, reported that he has spent over nine months asking for permission to the judges to receive specialist medical treatment, but until now has received no reply.

“The judges reject my petition every time, and in the same courts they deny it, they say that the judge isn’t here, and my situation is unsustainable, I feel strong pains in my head, thorax and hands, I need specialist medical attention”, he expressed from behind bars.

Bascopé was detained by the police on the 17th of July 2014. On multiple occasions he has said the names of those uniformed persons who tortured him. The lesions were corroborated by the Institution of Prevention against Torture (ITEI).

The leading beekeeper faces charges for the murder of two soldiers, a police officer and a doctor in October 2013 in Apolo (La Paz), during a raid to eradicate illegal coca. Bascopé is the only one detained for this case, the rest were freed.

The last time he saw a doctor was in November 2015 when he received treatment to survive the tortures that they submitted him to.

The beekeeper is undertaking a case of torture against the state that “has obstructed by the action of the prosecution and the police that threatened my witness not to testify”

 

Amnesty International already has addressed a note to the General District Attorney, Ramiro Guerrero, in order to know what actions have been taken to address Bascopé’s complaint of torture.

Source: http://www.paginasiete.bo/

Sep 08

(Español) Llegaron expertos en peritajes médicos y psicológicos a personas torturadas

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May 31

(Español) Informe Los Sin Techo Oruro 2006

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May 01

(Español) Tortura y malos tratos, segunda vulneración de derechos más denunciada en Bolivia

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Mar 27

(Español) Denuncian que fiscal interfiere en avance sobre tortura en caso Apolo

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Mar 26

(Español) Denuncian que un fiscal interfiere en el avance de la investigación sobre tortura en el caso Apolo

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Mar 18

(Español) Amnistía Internacional pide informe a Bolivia por “gravísimos hechos de tortura” en caso Apolo

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Oct 04

(Español) Campesinos piden libertad de implicado en caso Apolo

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Oct 03

(Español) Federación de campesinos pide la liberación de un implicado en el caso Apolo

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