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REPORT No.63/13

CASE 12.473

FRIENDLY SETTLEMENT

JESÚS MANUEL NARANJO CÁRDENAS ET AL.

[PENSIONERS OF THE VENEZUELAN AVIATION COMPANY - VIASA]

VENEZUELA

July 16, 2013

  1. SUMMARY
  1. On September 21, 2001, the Inter-American Commission on Human Rights (hereinafter "the Commission" or "the IACHR") received a petition lodged by the Venezuelan Program for Education - Action in Human Rights [Programa Venezolano de Educación - Acción en Derechos Humanos] (PROVEA) and the National Association of Retired Workers and Pensioners of the Venezuelan International Aviation Corporation [Asociación Nacional de Trabajadores Jubilados y Pensionados de Venezolana Internacional de Aviación Sociedad Anónima] (ANTJUVIASA) (hereinafter "the petitioners") alleging the responsibility of the Bolivarian Republic of Venezuela (hereinafter “the State” or “the Venezuelan State”) for failure to comply with two rulings issued by the domestic courts protecting the right to social security of the 18 alleged victims.
  1. The petitioners claimed that the State was responsible for violation of the rights to property, judicial protection, and progressive realization of economic, social and cultural rights recognized in Articles 21, 25, and 26 of the American Convention on Human Rights (hereinafter, “the Convention” or “the American Convention”) in conjunction with Articles 1.1 of the Convention; Articles XVI and XVIII of the American Declaration of the Rights and Duties of Man (hereinafter, “the American Declaration”), to the detriment of 18 retired employees of the company and their families; as well as the general obligation to respect and ensure protected rights in Article 1(1) of the American Convention.
  1. This report of friendly settlement, as provided in Article 49 of the Convention and Article 40.5 of the Rules of Procedure of the Commission, gives a summary of the facts alleged by the petitioners and transcribes the friendly settlement agreement, signed on March 2, 2005, by the petitioners and representatives of the VenezuelanState. Furthermore, the Commission approves the agreement signed by the parties and agrees to publish this report in the Commission’s Annual Report to the General Assembly of the Organization of American States.
  1. PROCEEDINGS BEFORE THE COMMISSION
  1. On September 21, 2001, the Commission received a petition lodged by PROVEA and ANTJUVIASA against the BolivarianRepublic of Venezuela. The Commission assigned the petition case number 667/2001 and on February 26, 2002, forwarded the complaint to the State. On October 18, 2002, the State submitted a reply brief on the admissibility and merits of the complaint and requested that the petition be declared inadmissible. The State provided additional information and comments by means of communications dated March 3, 2004; May 10, 2004; December 27, 2004;April 7, 2005; July 18, 2005; October 26, 2005; and September 15, 2005, which were duly forwarded to the petitioners.
  1. On December 10, 2003, PROVEA, ANTJUVIASA, and the Center for Justice and International Law (CEJIL) acting as co-petitioners submitted a brief to the Commission in which they informed it of the death of one of the victims (Jesús Manuel Naranjo) and requested the application of Article 37(3) of the Rules of Procedure of the Inter-American Commission on Human Rights[1]. That communication was forwarded to the State. The same brief contains the names of five of the victims who had already died: Daniel Piñeiro, Jesús Caro, Raúl Rodríguez, Oscar Schemel, and Tulio Pachano. For their part, the petitioners presented additional information in communications dated January 28, 2003; March 9, 2004; April 1, 2004; April 12, 2004; June 15, 2004; June 21, 2004; August 20, 2004; September 24, 2004;December 29, 2004; June 30, 2005; December 21, 2005; March 7, 2008; July 25, 2011; and June 7, 2012, which were duly forwarded to the State.
  1. On October 13, 2004, the IACHR adopted the Report on Admissibility 70/04, by which it declared the petition admissible with respect to the alleged violations of Articles 21, 25, and 26 of the American Convention, in conjunction with Article 1(1) thereof, in accordance with the requirements contained in Articles 46 and 47 of the Convention. That report was transmitted to the parties by a communication dated November 11, 2004, in which, pursuant to Article 48(1)(f) of the American Convention and 37(4) of its Rules of Procedure, the IACHR made itself available the parties in order to reach a friendly settlement. On March 2, 2005, the parties signed a memorandum of commitment with the purpose of working toward a friendly settlement.
  1. The following working meetings were held in the framework of the friendly settlement procedure: on March 3, 2004, in the course of the 119th regular session of the IACHR a working meeting was held to discuss the positions of the parties and explore a possible friendly settlement in the case. In addition, on March 2, 2005, in the context of the 122nd regular session of the IACHR, the parties signed a memorandum of commitment in order to work toward a friendly settlement. On October 20, 2005, at a working meeting held during the 123rd regular session of the IACHR, the parties informed to the state of implementation of the commitments entered into, and established a new implementation timetable. On March 7, 2008, at the Commission's 131st regular session, a working meeting was held for the purpose of advancing the full implementation of the commitments undertaken by the state in order to approve the friendly settlement agreement. On November 4, 2009, in the framework of the 137th regular session of the IACHR, the petitioners, in the presence of representatives of the State, said that the State had met its financial commitments and, therefore, its compliance with its nonfinancial commitments remained pending.
  1. Finally, on February 15, 2003, the petitioners wrote to the Commission asking it to issue a friendly settlement report.
  1. THE FACTS
  1. According to the petition, the state-owned company VIASA was partially privatized in 1992. Through that privatization, the Spanish aviation company Iberia bought 45% of the shares, Banco Provincial de Venezuela purchased 15%, and the VenezuelanState, through the Venezuelan Investment Fund, retained 40% of the company’s stock. The petitioners assert that in the stock transaction, the State agreed with the buyers that all the workers would lose their status as government employees, and that they would therefore also lose the benefits of the Retirement Plan established for them. This clause was agreed to despite the fact that under domestic legislation, labor rights are considered as irrevocable.
  1. When the company was privatized, the alleged victims continued to be dependent on VIASA. That company paid its pension obligation up to 1997, when it unilaterally ceased payment of these benefits. The petition alleges that on September 3, 1998, as part of the judicial proceeding on delinquent debts [proceso de atraso],[2] the company made the 17 workers sign an agreement in which they waived their right to retirement. This agreement was ratified judicially by the Bankruptcy Court, in a proceeding that declared the judicial bankruptcy of VIASA.
  1. On April 27, 1999, the retired workers filed a constitutional petition action, alleging violations of their rights to work, of irrevocability of labor rights, and of social security. This petition was heard by the Seventh Court of First Instance for Labor Matters of the Caracas Metropolitan Area. On May 20, 1999, the Seventh Court declared that the constitutional action had merit, and that the agreement signed between the company and the retired workers was null and void, on the grounds of unconstitutionality. As a result, the Seventh Court ordered “the reinstatement of the right of the retired workers to enjoy the full benefit of their retirement pensions."[3].
  1. The petitioners allege that by virtue of these judgments[4], both the Venezuelan International Aviation Company and the Venezuelan Investment Fund (which was converted into the Economic and Social Development Bank in May 2001) were required to comply with restitution of pensions.They further regard the constitutional organs of the State in charge of guaranteeing enforcement of court rulings as responsible for execution of the judgments.
  1. The petitioners reported that the courts’ decisions had not been complied with. The petitioners also hold that noncompliance with the judicial orders entails the continued and present violation of the labor rights of the retired workers. This situation has resulted in a total lack of protection for the pensioners, who are of advanced ages and are subject to the many physical ailments of the elderly. The living conditions of these persons are highly precarious, since in most cases, they do not have the economic means to provide for their basic needs, which causes their health to deteriorate even further.

IV.FRIENDLY SETTLEMENT

  1. On March 2, 2005[5], in Washington, D.C., Marino Alvarado and Olga Lucia Pérez, for the petitioners; and María Auxiliadora Monagas, for the State, signed a friendly settlement agreement under the following terms:

MEMORANDUM OF COMMITMENT

Having gathered at the headquarters of the Inter-American Commission on Human Rights on March 2, 2005, for a working meeting convened in order to discuss a possible friendly settlement of the case (Pensioners of the Venezuelan Aviation Company -VIASA), the State's agent for human rights before the inter-American system, María Auxiliadora Monagas, for the State; and Marino Alvarado and Olga Lucia Pérez of Programa Venezolano de Educación Acción en Derechos Humanos (PROVEA) and the Center for Justice and International Law (CEJIL), respectively, for the petitioners, recognizing the express will of the State to work toward a friendly settlement, bearing in mind the situation that dates from 1992, hereby establish that the Venezuelan State commits to taking concrete and effective steps in order to implement the following measures within not more than four months:

  1. To pay the 18 pensioners and their heirs, as appropriate, 100 percent of the pensions owed until the date of settlement.
  1. To adopt a mechanism by which the victims and survivors can collect their retirement pensions going forward, following payment of the sums owed, in accordance with Venezuelan law.
  1. The payment of US$6,000 (six thousand United States dollars) or its equivalent in bolívares in compensation for moral and material damages caused to each of the victims and their families. The State may request an additional two months beyond the above time limit in order to comply with these reparations.
  1. To take steps to provide the petitioners with nonpecuniary satisfaction, ensuring that the State apologizes to the victims and their families. The foregoing shall consist of the following:

a) Acknowledgment by the Venezuelan State of its responsibility under international law for the violation of human rights that occurred in 1992 as a result of the privatization of the company VIASA, which impaired the vested rights of the pensioners, and the recognition by President Hugo Chávez Frías of the need to resolve the situation.

b) Publication of the apology to the pensioners and their families in a nationally circulated daily newspaper.

c) Production of a special television program on the State-owned network with the largest nationwide audience in tribute to the deceased pensioner Jesús Manuel Naranjo, President of the National Association of Retired Workers and Pensioners of VIASA, and in recognition of the perseverance of the pensioners in fighting for their rights.

d) Implementation of an educational campaign to raise awareness about the rights of retired persons in Venezuela and benefits to which they are entitled.

The organizations PROVEA and CEJIL pledge to furnish the Government of Venezuela with all available documents and information that the Government might need to take the necessary steps for payment.

The parties expressly agree that, once the concrete acts of compliance are done, they shall sign a friendly settlement agreement within the framework established by the American Convention. In addition, they pledge to report regularly to the Commission on the progress in the friendly settlement process.

The parties promise to meet in Caracas at least once a month to follow up on the process and resolve any obstacle to the implementation of the commitments undertaken herein.

V.DETERMINATION OF COMPATIBILITY AND COMPLIANCE

  1. Pursuant to Article 48.1.f of the Convention, the purpose of this proceeding is “to reach a friendly settlement of the matter on the basis of respect for the human rights recognized in this Convention.” The acceptance to carry out this proceeding expresses the good faith of the State to comply with the purposes and objectives of the Convention, by virtue of the pacta sunt servanda principle. Concerning this, IACHR wishes to reiterate that the friendly settlement procedure provided in the Convention allows for individual cases to be resolved in a non-litigious fashion, and in cases related to various countries has demonstrated itself to be an important and effective vehicle for solutions, which can be utilized by both parties.
  1. Basedon available information, the Commission understands that both the State and the petitioners consider that the memorandum of commitment and the measures of compliance adopted constitute the agreement between the parties.
  1. Regarding implementation of the commitments adopted by the State, in communications dated July 25, 2011 and June 7, 2012, the petitioners informed that the State of Venezuela had complied with the fundamental aspects of the agreement[6]. In particular, regarding the financial commitments, they said that the beneficiaries of the retirement and pension payments had been receiving the agreed payments monthly, which are being deposited in a specific bank account in the Banco de Venezuela (Bank of Venezuela). They reported that those payments have been made regularly and punctually ever since the first monthly payment was received. They also noted that the beneficiaries of those measures were granted a number of benefits enjoyed by retirees of the Ministry of Finance, the organ to which they were attached by mutual consent.

18.As regards the nonpecuniary commitments (acknowledgment of responsibility of the Venezuelan State under international law, publication of an apology, and two television programs), the petitioners reported that as of June 7, 2012, they have not been met. The Commission has received no information from the State in that regard.

  1. CONCLUSIONS

19. Based on the foregoing considerations and by virtue of the procedures provided in Articles 48.1.f and 49 of the American Convention, the Commission wishes to reiterate its deepest appreciation for the efforts engaged by the parties, and its satisfaction with the achievement of a friendly settlement agreement in this case, based on the object and purpose of the American Convention.

20.In relation to the pending commitments, the IACHR will continue to follow up on the measures adopted by the State toward their full implementation.

21.Based on the considerations and conclusions set forth in this report,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

DECIDES:

1.To approve the terms of the friendly settlement agreement signed by the parties on March 2, 2005.

2.To continue the monitoring and supervision of the friendly settlement agreement and, in this context, remind the parties of their commitment to periodically report to IACHR on compliance with that agreement.

3.To make this report public and to include it in the Commission’s Annual Report to the OAS General Assembly.

Done and signed in the city of Washington, D.C., on the 16th day of July 2013. (Signed): José de Jesús Orozco Henríquez, President; Tracy Robinson, First Vice-President; Felipe González, Dinah Shelton (en contra), Rodrigo Escobar Gil, y Rose-Marie Antoine, Members of the Commission.

[1] IACHR, Rules of Procedure of the Inter-American Commission on Human Rights, Tiitle II, Chapter II. Petitions Referring to the American Convention on Human Rights and Other Applicable Instruments Art. 37 Procedure on the Merits 3) In serious and urgent cases, or when it is believed that the life or personal integrity of a person is in real and imminent danger, and once the case has been opened, the Commission shall request that the State forward its additional observations on the merits within a reasonable time period, established by the Commission taking into account the circumstances of each case.

[2] Article 898 of the Venezuelan Commercial Code provides that: “Businesses whose assets are greater than their liabilities and which, because of a cash deficit due to unforeseen events or any other type of excusable cause, find that they need to delay or defer payments, shall be considered in default and may request the competent Commercial Court to authorize them to proceed with the friendly settlement or liquidation of their operations, within a period of time not to exceed twelve months. They shall pledge not to engage in any operations other than simple retail transactions until their request is settled.”

[3] Seventh Trial Court for Labor Matters of the Caracas Metropolitan Area, judgment of May 20, 1999, operative paragraph 1.

[4] Constitutional protection action claiming violation of their rights to work, the irrevocability of labor rights, and the right to social security. This petition was heard by the Seventh Court of First Instance for Labor Matters of the Caracas Metropolitan Area. (April 27, 1999). On May 20, 1999, the Seventh Tribunal admitted the amparo petition and declared null and void the agreement signed by the company and the retired workers. In a judgment of August 13, 1999, this Tribunal upheld the decision of the Seventh Court. The decision upheld the ruling at first instance in full.

[5] Ratified on October 20, 2005.

[6] Financial compensation agreed upon by the parties: 1. 100 percent of the pensions owed until the date of settlement. 2. Collection of retirement pensions following payment of the sums owed, in accordance with Venezuelan law. 3. The payment of US$6,000 (six thousand United States dollars) or its equivalent in bolívares in compensation for moral and material damages caused to each of the victims and their families.