Aldemaro Romero et al v. Venezuela, Case 11.720, Report No. 68/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 476 (2000).
ALDEMARO ROMERO DÍAZ AND AISUR AGUDO PADRÓN
REPUBLIC OF VENEZUELA
October 3, 2000
On December 18, 1996, the Inter-American Commission on Human Rights
(hereinafter the Commission or the Inter-American Commission)
received a petition dated December 16 of that year lodged against the Republic
of Venezuela (hereinafter the State or Venezuela)
by Rights International, The Center for International Human Rights Law, Inc.
(hereinafter the petitioner), based on Article 44 of the American
Convention on Human Rights (hereinafter the Convention or the
American Convention) and the American Declaration of the Rights and
Duties of Man.
The petition claims that the State violated the following articles
of the American Convention: 5(1) (Right to Humane Treatment); 7(6) (Right
to Personal Liberty); 8 (Right to a Fair Trial); 11(1) (Right to Privacy);
13 (Freedom of Thought and Expression); 24 (Right to Equal Protection); and
25 (Right to Judicial Protection) in connection with Article 1(1) (Obligation
to Respect Rights), as a result of alleged measures taken against Messrs.
Aldemaro Romero and Aisur Ignacio Agudo, two marine biologists who witnessed
the killing of dolphins and denounced it as common practice among Venezuelan
fishermen. According to the petitioners brief, the above denunciation
made to the Venezuelan press and authorities, as well as to the international
press, prompted the State to take revenge by indicting them and convicting
them of the very crime that they had denounced.
This indictment and conviction on the part of the State caused both
to flee the country with their families. They are currently living abroad.
From its examination of the admissibility requirements, the Commission
finds the petition to be inadmissible in accordance with Article 46(1)(a)
of the American Convention and Article 37 of the Regulations of the Commission.
II. PROCESSING BY
4. On January 27,
1997, the Commission began to process the case and requested the State for
information on the facts alleged by the petitioner.
On April 2 and May 15, 1997, the State made applications for extensions
of the period for presenting its reply in the instant case.
On July 7 and October 22, 1997, the Commission reiterated to the State
its request for such information as it deemed pertinent, advising it of the
possibility of application of Article 42 of the Commissions Regulations.
On October 29, 1997, the State presented its reply (dated October 23
of that year), arguing that it was inadmissible in accordance with Article
46 of the American Convention. The
petitioner submitted comments on the States reply and information was
subsequently received from both parties.
The Commission received the petitioners comments and supplementary
information on December 8, 1997 and July 27, 1998, respectively. The State presented its reply to the petitioners comments
on April 22, 1998.
6. On March 2, 1999,
in accordance with Article 48(1) of the Convention and Article 45 of its Regulations,
the Commission placed itself at the disposal of the parties with a view to
reaching a friendly settlement of the matter. On April 26, 1999 the petitioner
presented its acceptance of the Commissions offer, together with a proposed
arrangement which it would be willing to accept.
To date the State has presented no comments or reply in that respect.
POSITIONS OF THE PARTIES
According to the petition, in February 1993, Dr. Aldemaro Romero Díaz
and Professor Aisur Ignacio Agudo Padrón, two prominent marine biologists,
filmed and photographed Venezuelan fishermen harpooning a dolphin/porpoise
in waters off the state of Sucre. In
the same video the fishermen said it was common practice among Venezuelan
fishermen to use it as shark bait, which led Dr. Romero to denounce the killing
in a press conference on May 6, 1993, where he used the video as a key piece
of evidence to support his claim.
According to the petitioner, on May 11, 1993, the two biologists sent
a letter, together with the video and photographs, to the Attorney General
complaining about the killing of porpoises and suggesting corrective measures
designed to encourage their conservation.
The petitioner adds that in this letter they did not request punitive
measures for the fishermen who appear in the video and that their efforts
provoked scant reaction from the Venezuelan government.
The petitioner says that in October 1993, Messrs. Romero and Agudo
testified before the Environment Commission (Comisión del Ambiente)
of the Venezuelan Congress and presented the video and proposed conservation
measures that they had prepared. On February 2, 1994 the biologists testified
in a court of Carúpano and submitted documents and evidence regarding the
killing of dolphins in Venezuela.
The videotape was later released in the United States and, according
to the petitioner, the Venezuelan Government, embarrassed by the negative
publicity, accused Dr. Romero and Professor Agudo of having bribed the fishermen
and directed them to kill the dolphin, which they themselves filmed.
The petitioner claims that the government altered the original videotape
and took images and dialogue out of context in order to support
trumped up criminal charges alleging that Dr. Romero and Professor Agudo
violated a Venezuelan law that prohibited the killing of dolphins.
The petitioner says that the alleged victims in this case had been
unable to obtain a copy of the indictment against them until March 22, 1996,
when the Embassy of Venezuela in Brazil issued a press release saying that
the alleged victims had violated Article 59 of the Venezuelan Criminal Statute
on the Environment (Ley Criminal sobre el Ambiente).
According to the petition, the Government launched a defamatory press
campaign attacking the activities and scientific reputation of the two biologists,
while the Venezuelan Consulate in Miami, in response to the huge outpouring
of criticism it received, sent out letters saying that the Venezuelan Government
had found evidence that proved beyond a shadow of doubt that the
video had been fabricated and premeditated.
The Venezuelan Minister of Foreign Affairs and the Governor of the
State of Sucre supported this position and the Governor later called for the
biologists to be tried for treason.
The petitioner says that the press in Venezuela, taking their cue from
the Government, have pursued the theory that Dr. Romero conspired with the
United States and Europe, as well as with tuna fishing companies, to prevent
the lifting of the embargo imposed in 1991 by the United States on Venezuelan
tuna. The petitioner also considers that the States persecution violated
the freedom of expression of Dr. Romero and Professor Agudo.
As a result of the foregoing, Dr. Romero and his family started to
receive death threats in Venezuela against them and, on February 19, 1994,
he fled with his family to the United States.
In April 1994 a judge of the State of Sucre issued a warrant for the
arrest of Dr. Romero and Professor Agudo.
On April 12 and 13, 1994, the Venezuelan police visited the home of
Professor Agudo, as well as that of his parents and sisters and made threats.
These threats prompted Mr. Aisur Ignacio Agudo to go into hiding and, according
to the petition, led Professor Agudos father to commit suicide on May
14, 1994. Subsequently, Professor
Agudos wife, who suffered from a chronic heart complaint, died on April
12, 1995, as a result of a decline in her health.
Professor Agudos mother and sisters continued to receive threats
until April 1996.
The petitioner also says that the father of Dr. Romero made a series
of attempts to resolve the case against his son and to obtain legal representation
for him in Venezuela; however, these efforts have not yielded any positive
results. The matter is made worse
by the fact that the Venezuelan courts are beset with serious problems
that stem from corruption and political interference in the affairs of the
judicial system and cause the system to be ineffective as well as corrupt
The petitioner claims that prison conditions in Venezuela are dangerous
and the Venezuelan police frequently kill and torture people in suspicious
and inexcusable circumstances, sometimes to obtain information.
Nevertheless, such abuses committed by State officials enjoy impunity
in Venezuela. The petitioner argues that this situation, along with the threats
and partiality of Venezuelan officials, have made it impossible for the two
biologists to defend themselves against the charges against them.
According to the petition, the State has, to the detriment of the alleged
victims violated Articles 5(1) and 11(1) as a result of the false charges,
the official international campaign of defamation, and the threats against
Messrs. Romero and Agudo. The petition also claims that the State violated
Articles 7(6), 8, 24 and 25 by not permitting the alleged victims equal access
to a remedy under domestic law and denying them their rights of representation,
to an impartial and independent tribunal, and to be presumed innocent; and,
finally, Article 13, with respect to the freedom of expression of the biologists.
As to the exhaustion of domestic remedies, the petitioner says that
the exceptions set forth in Article 46(2) of the Convention are applicable
in this case, since the domestic remedies are ineffective and inadequate and
do not afford due process of law for the alleged victims petition in
Venezuela. The reason for the
foregoing is that the petitioner regards it as a proven fact that the State
presumed the guilt of Messrs. Romero and Agudo, refused to notify them of
the charges against them, and denied them the right of defense.
The petitioner adds that if a remedy in a given case is not effective
then it is not necessary to exhaust it and mentions that in the instant case
the impossibility to overcome the obstacles and procedures that the State
used to hamper Dr. Romero render the Venezuelan remedies insufficient for
the case in hand. Even if Dr.
Romero and Professor Agudo were to return to Venezuela, the petition says,
there is a reasonable likelihood that the remedies under Venezuelan law would
be ineffective for protection of the alleged victims rights in this
case. The petition further clarifies that the two are not fugitives but refugees
The petitioner holds that in the event of a clear lack of judicial
guarantees and of effective remedies, the Commission, on taking up an objection
asserting non-exhaustion of domestic remedies, may also decide on the merits
at the same time, a situation the petitioner considers analogous to the instant
As for the deadline for presentation of the petition, the petitioner
says that Articles 34(2) and 38(2) of the Commission Regulations apply because
it is not possible to determine a reasonable period from the date on which
the human rights of Messrs. Romero and Agudo were violated; and there is no
court decision from which to measure such a period.
The petitioner adds that the instant petition is not pending in another
international proceeding for settlement.
The State requests that the petition be found inadmissible because
the facts stated by the petitioners do not tend to establish a
violation of the rights guaranteed by the Convention inasmuch as they
are not true; and for failure on the part of Messrs. Romero and Agudo to exhaust
the remedies under domestic law.
The State says that on January 7, 1994 the Coastguard of the City of
Cumaná, Sucre State, informed the Second Court of First Instance for Criminal
Matters of Sucre Judicial District and the Attorney Generals Office
that a preliminary inquiry had been opened, in pursuance of Article 75(c)
of the Venezuelan Code of Criminal Procedure, into an offense categorized
in the Criminal Statute on the Environment (Ley Penal sobre el Ambiente)
in accordance with the Law on Protection of Wild Animals (Ley de Protección
de la Fauna Silvestre), as a result of the screening of a video made by
the Fundación Bioma on the killing of dolphins on the eastern coast
of Venezuela, which was broadcast in the United States by the television network
The State says it went on to conduct all the necessary proceedings
in accordance with Article 90 of the Venezuelan Code of Criminal Procedure
in order to prepare a record of the perpetration of the punishable acts.
In the course of the aforesaid enquiry, the fishermen who were filmed
in the abovementioned video gave statements, two of them saying that the biologists
told them they were carrying out a research project and as part thereof they
asked them to harpoon a dolphin for research that was going to be conducted
Based on the testimony of the fishermen who accompanied Messrs. Romero
and Agudo, the latter were summoned to give statements on February 2, 1994.
On March 16, 1994, further testimony was received that incriminated
the alleged victims in the killing of a dolphin for research. As part of the enquiry, the State says that an expert was called,
who stated that examination of the video showed that the way that the dolphin
was harpooned was not the most suitable and that it could not be said to be
a routine practice of the fishermen.
Based on the foregoing, on April 11, 1994, a warrant was issued for
the arrest of Messrs. Romero and Agudo for incitement to the crime of hunting
and killing a dolphin under Article 59 of the Criminal Statute on the Environment
in connection with Articles 83 of the Criminal Code, and with Article 287
of said instrument for those who acted in name and as representatives of the
non-governmental organizations Bioma and Fundacetácea.
By the same token two members of the public were prosecuted for aiding
and abetting in the crime of hunting and killing a dolphin.
According to the State, it is demonstrated that the Venezuelan
biologists hired the fishermen in order to go out to the sea to take
photographs and film video footage, and later ordered them to harpoon a dolphin
for scientific purposes. The State claims that the petitioners chose an easy and convenient
way of avoiding the charges brought against them and, instead, opted to discredit
the Venezuelan State with false accusations by pretending to be victims.
The State adds that Messrs. Romero and Agudo lodged the petition with
the Commission without having exhausted the remedies under domestic law in
accordance with Article 46 of the Convention, given that they have not made
use either of the ordinary remedies of criminal procedure, or of the extraordinary
remedies provided by domestic law. Further, since they intend to evade Venezuelan
justice, they have not placed themselves at the disposal of the authorities
for the case against them to be heard and thereby enable them to pursue the
remedies they deem appropriate in order to uphold their claims.
The State claims that the allegation of threats against the biologists
is utterly false and is intended to justify evasion of justice and to avoid
compliance with the rule of exhaustion of domestic remedies required in order
to appeal to take ones case before the inter-American system.
The State adds that under the Venezuelan system of laws there is freedom
of expression, autonomy and separation of powers, and the right to be presumed
innocent, on which basis the biologists cannot claim prejudgment of the case
against them by the Courts.
Furthermore, the State rejects the argument that detainees in Venezuelan
jails are subjected to abuses that violate their physical integrity and says
that defendants in Venezuela are equal before the law and enjoy the procedural
benefits to which they are legally entitled. Furthermore, the State says that
if Messrs. Romero and Agudo should decide to face justice they may enjoy the
procedural benefits provided by Venezuelan law, as did the other accused in
the instant case.
The State also says that in Venezuela prompt and effective remedies
are recognized for the protection of human rights and that the petitioners
have not pursued these remedies because their intention is to evade justice.
Instead, they appeal to the inter-American system seeking to excuse their
domestic obligation when the international law of human rights reinforces
or complements the domestic law, which is why the obligation of prior exhaustion
of domestic remedies exists.
The State holds that in the instant case no human rights have been
violated and that respect has been shown for freedom of expression; for the
moral integrity, personal liberty, honor and dignity of the petitioners; and
for the existence of judicial guarantees, due process, equality before the
law, and the principle of innocence. The State adds that the petitioners have
access to the Venezuelan courts and may pursue any judicial remedy or measure
that they consider necessary. However,
Messrs. Romero and Agudo fled Venezuela of their own free will and accuse
the State of violations that do not exist.
Competence of the Commission
The petitioner claim that the State has violated his rights under Articles
5(1), 7(6), 8, 11(1), 13, 24 and 25 (Judicial Protection) of the American
Convention in connection with Article 1(1) thereof. The State ratified the
American Convention on Human Rights on August 9, 1977.
The events alleged in the petition lodged with the Commission occurred
after the State ratified the American Convention.
The petition was lodged with the Commission by Rights International, The Center
for International Human Rights Law, Inc, which has the legal capacity to do
so in accordance with Article 44 of the American Convention. Accordingly,
the Commission is competent to take up this petition in accordance with Article
44 of the American Convention and Articles 18 and 19 of its Statute.
Requirements for the admissibility of the petition
Exhaustion of domestic remedies
Article 46(1) (a) of the American Convention provides the following:
Admission by the Commission of a petition or communication lodged in
accordance with Articles 44 or 45 shall be subject to the following requirements:
that the remedies under domestic law have been pursued and exhausted
in accordance with generally recognized principles of international law;
the same token, the Convention provides possible exceptions to this rule in
Article 46(2), which states:
The provisions of paragraphs 1.a and 1.b of this article shall not
be applicable when:
the domestic legislation of the state concerned does not afford due
process of law for the protection of the right or rights that have allegedly
the party alleging violation of his rights has been denied access to
the remedies under domestic law or has been prevented from exhausting them;
there has been unwarranted delay in rendering a final judgment under
the aforementioned remedies.
The Commission observes that in the instant case the petitioner says
that Venezuelan law does not provide due process of law and denies Dr. Romero
and Professor Agudo access to an effective domestic remedy to contest the
charges against them, and that, accordingly, domestic remedies have effectively
The State for its part, rejects these arguments and maintains that
all the remedies needed to resolve this dispute in the domestic sphere are
in place and that the petitioners did not pursue them but, rather, straightaway
instituted an international proceeding.
In that connection, the Commission stresses that it has held previously
that the international protection afforded by the supervisory bodies of the
Convention is of a subsidiary, reinforcing, and complementary nature designed
as a mechanism to strengthen protection of human rights; and that this nature
has been provided for by the domestic
law of the American states. It cannot be assumed that the Commission
is an instance that may take up and decide petitions regarding alleged violations
that have not been taken up and exhausted by the domestic courts or, by the
same token, which are pending a decision in the respective State.
In the instant case, from the positions of the parties it can be seen
that the alleged victims have not even attempted to pursue the domestic remedies
offered by Venezuelan law. The Commission considers that the petitioner has
not provided sufficient grounds to show that the exceptions contained in Article
46(2) of the Convention should apply to it, since in Venezuela there are suitable
remedies to protect the rights that are deemed violated. It has not been demonstrated
that the alleged victims have been denied access to such a remedy or been
prevented from exhausting it, given that they have not attempted to do so.
Nor is it possible to allege unwarranted delay in rendering of a judgment
under a remedy that has yet to be sought.
The Commission recalls that, as it itself has noted in reference to
the European Court, the decisive point is not the subjective fear of the interested
party regarding the impartiality of the court that is to hear the case, but
rather whether the circumstances indicate that his fears can be objectively
justified, given that, in principle, the personal impartiality of the members
of the tribunal must be presumed until there is proof to the contrary and,
in this case, the Commission cannot conclude that the courts decisions
will be made in a way that is biased and violates due process. 
For the foregoing reasons, in
casu, the Inter-American Commission accepts the objection of failure to
exhaust domestic remedies presented by the State.
Based on the foregoing, the Commission abstains, since the matter is
rendered moot, from examining the other admissibility requirements provided
in the Convention.
41. The Commission has found that the petition does not meet the requirement provided in Article 46(1)(a) of the American Convention. In consequence, the Commission concludes that the petition is inadmissible in accordance with Article 47(a) of the Convention.
Based on the above factual and legal arguments,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare the instant
2. To notify the petitioner
and the State of this decision; and
To publish this decision and to include it in its Annual Report to
the OAS General Assembly.
Done and signed in Washington, D.C., on the 3rd day of the month of October, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman, Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo, Commissioners.
According to the petition, the story regarding this matter was carried
by the television network CNN and newspapers the Wall Street Journal and
the American Journal and that, in consequence, the Venezuelan Embassy
in Washington and the Consulate in Miami received over 20,000 letters
from the American public protesting against such actions. Petition of
December 16, 1996, p. 2.
The aforementioned Article 59 provides:
in and destruction of special areas and natural ecosystems.
Any person who hunts wild animals or destroys or causes damage
to resources that provide food or shelter thereto in national parks, natural
monuments, animal refuges or sanctuaries, or natural ecosystems, shall
be sentenced to three (3) to nine (9) months imprisonment (arresto)
in a local detention facility and a fine of three hundred (300) to nine
hundred (900) days pay at the minimum wage.
sentence shall be doubled and the arresto
changed to imprisonment (prisión)
in a national detention facility when such offenses are committed by means
of fires, chemical substances, unauthorized hunting weapons, or any other
method or instrument that increases the suffering of the prey; or against
animals protected by a hunting ban, populations of endangered species,
or populations that, without being endangered, become endangered as a
result of the offense, regardless of where it was perpetrated.
person who, for commercial gain, hunts wild animals or collects natural
products obtained therefrom without the necessary license, exceeds the
permitted hunting quota, or hunts during a close season, shall be sentenced
to nine (9) to fifteen (15) months imprisonment (prisión)
in a national detention facility and a fine of nine hundred (900) to fifteen
hundred (1500) days pay at the minimum wage.
The petitioner says that, furthermore, in Miami, USA, he met Mr. Eduardo
Betancourt, who, as representative of the Venezuelan Consulate in Miami,
asked him to surrender himself to the authorities in Venezuela and informed
him of a plan that the State had to kidnap him and return him to the country
In light of this information he says he reported the incident to
Some months after that meeting, he met a person who identified
himself as a Venezuelan journalist; however, his enquiries showed that
no journalist with such a name existed, whereupon Doctor Romero again
went to the FBI to report the incident.
Dr. Romero believes the Venezuelan authorities took illegal measures
with the aim of taking him back to Venezuela where his rights would not
In that regard, pages 7 and 8 of the petition of December 16, 1996 mention
that evidence of this situation has been disseminated by the United States
Department of State, Americas Watch, and the World Bank on various occasions.
In that respect, the petitioner mentions that the Commission has found
that if the domestic agency that investigates the petition is, rather,
the body responsible for the alleged violations, an exception to the exhaustion
rule would apply. Petition of December 16, 1996, p.13.
The petitioner mentions the Godínez Cruz Case against Honduras and refers
to the UN Human Rights Committee, to different reports of the Inter-American
Commission, and to case law of the European Court of Human Rights.
this connection, the petition mentions the Velásquez Rodríguez Case against
Honduras. Petition of December 16, 1996, p.16.
On December 5, 1995, the Second Court of First Instance for Criminal Matters
of the Judicial District of the State of Sucre sentenced the fishermen
who accompanied the biologists to six months imprisonment in a national
detention facility for their part in the crime and ordered the execution
of the sentence. They were later released on parole.
In respect of this point it should be emphasized that at the time of ratifying
the American Convention Venezuela made a reservation as regards Article
8(1), insofar as Article 60(5) of the Constitution of the Republic of
Venezuela establishes that persons accused of an offense against the res
publica may be tried in absentia,
with the guarantees and in the manner prescribed by law. Such a possibility
is not provided for in the aforementioned Article 8.
See paragraphs 21, 22 and 23 of the instant report.
paragraphs 30-34 of the instant report.
See: Resolution 29/88, Case No. 9260, Jamaica, September 14, 1988; Report
No. 11.673, Argentina, October 15, 1996; and Report No. 88/99, Case No.
12.013, Paraguay, September 27, 1999.
See Report 82/98,
Case 11.703, Gustavo Gómez López against Venezuela, September 28, 1998,