NGO leaders never received information on State actions to address population’s access to medicine lead to a violation of art 19

Facts

All authors are Venezuelan nationals and are leaders of several NGOs. They started action following a State report which showed a severe mismanagement in the purchase, storage and distribution of medication in the State party. These irregularities had severe health effects on the entire population including the lack of provision of medicines which corresponded to the needs of the population, a delay of up to 2 years in the delivery of medicines, purchase of pharmaceuticals with an expiry dates of less than legally allowed in the State Party, lack of adequate storage centres which prevented adequate conservation of the medicines, and lack of their distribution. The report made several recommendations for the improvement of medicine purchase transparency and distribution. The NGO leaders filed a “right of petition” towards the Ministry of Health on the measures the State Party took to improve the situation. They also asked for information on the administrative investigation that was started as a result of the report as well as regular updates on State websites and end of year reports on the situation. The Ministry never replied even after the 20 day deadline required by law. The authors brought a domestic legal complaint in 2012 of amparo before the Constitutional Chamber of the Supreme Court of Justice for lack of access to public information, violation of their right to petition and receive a timely and adequate response, as well as their freedom of expression. The authors argued that these alleged violations affected social control over State agencies, defence of the right to health and to ensure proper functioning of public administration. The Court declared the claim inadmissible on the ground that the remedy was not exhausted and that the violations of the authors’ rights did not interfere with their fundamental rights. This decision could not be appealed. The authors later continued to pressure state institutions for information, but nothing was shared.

The authors claimed that their rights to access to information under article 19(2) read in conjunction with article 2(1). Further, that their right to participate in public affairs was violated under article 25 (read with articles 19 and 2(1)) as well as their right to receiving an effective remedy under article 14 read with article 2(3). Lastly, it was claimed that the judiciary violated their obligation to make decisions or find solutions that would protect the authors’ rights under article 2(2) of the Covenant. 

Admissibility

The Committee deemed the authors’ article 2(2) allegation inadmissible as no right to public information is expressed in the Venezuelan constitution. Similarly, the Committee found the article 14 and 2(3) claims inadmissible as the judicial process was clearly not arbitrary. The Committee found the claims under articles 19(2) and 25 of the Covenant sufficiently sustained and deems them admissible.

Merits

The Committee noted the State party's arguments that it has complied with its obligations by establishing mechanisms to place information of public interest in the "public domain"; by establishing clear rules for the exercise of the right of access to public information through article 143 of the Constitution and the jurisprudence of the Supreme Court on this right, indicating that petitioners must demonstrate an interest in the information requested and prove that the extent of the information requested is proportionate to its intended use. The Committee, however, reminded the State party that the right to access information on the work of State institutions is part of the right to freedom of expression, and, citing Toktakunov v. Kirgizstan, para. 6.3, that there is no necessity to prove sufficient interest in the matter: information of relevance such as this should be public. The Committee noted that the authors are members of associations which perform "watchdog" functions in relation to issues of legitimate public concern, with the consequence that their requests for information deserve to be protected under the Covenant. The right of access to information has, in fact, individual and societal dimensions, both of which must be guaranteed by States parties. Hence, there is a right of everyone to seek information held in public archives, and the right of everyone to know information held by the State.

With regards to article 19(3) permitting restrictions on the sharing of State information, justifying the State party’s stance, the Committee recalled that restrictions are permissible only to the extent that they are prescribed by law and are necessary for the respect of the rights or reputations of others, and the protection of national security, public order, public health or morals. The Committee found that information on irregularities relating to the procurement and distribution of medicines cannot be subject to restriction because there is no law providing for it; it is not of a personal nature that could involve an infringement of the reputation of individuals; nor is it information that could affect national security, public order, public health or morals. On the contrary, it is information that should be made public, given society's need to know what measures have been taken with regard to irregularities relating to the purchase and distribution of medicines, given its intimate connection with the right to health and taking into account the context of shortages of medicines in the State party. Citing General Comment 34, para. 35, the State party must demonstrate in a concrete and individualized manner the precise nature of the threat and the necessity and proportionality of the particular measure taken by establishing a direct and immediate connection between the expression and the threat. As the State party did not justify their decision to limit access to this information, article 19(3) restrictions did not apply as similarly found in Pivonos v. Belarus, para. 9.3.

The Committee therefore concluded that by the State party violated the authors’ rights to freedom of expression and access to information under article 19(2) of the Covenant. As a result, the Committee did not find the need to analyse for article 25 violations.

Recommendations

The State party is under an obligation to provide the author with an effective remedy. That includes:

• to take appropriate steps to provide the authors with the answers they have been seeking
• adequate compensation for incurred legal costs
• take all steps necessary to prevent similar violations from occurring in the future.

Implementation

Deadline for follow-up implementation report: 18 September 2021.

 

Author: Laura Cestaro