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Venezuela Country Report for use in refugee claims based on persecution relating to sexual orientation and HIV+ status Produced: July 30, 2009 Sexual Orientation and Gender Identity research – email@example.com International Human Rights Program University of Toronto This document was prepared by law students and highlights information about publicly-accessible country conditions available at the time it was prepared. It is not exhaustive, nor is it updated on a regular basis. The information provided here is not a substitute for legal advice or legal assistance, and the International Human Rights program at the University of Toronto, Faculty of Law cannot provide such advice or assistance. T able of Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 L egislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C ase L aw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Government Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Non-governmental O rganization Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Scholarship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Media Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Introduction This dossier provides a summary of the case law in Canada regarding refugee claims made on: 1) the basis of the claimant’s HIV status and 2) the basis of the claimant’s sexual orientation. Although the former addresses claims without regard to the claimant’s country of origin, the latter focuses on claims made by Venezuelans. The dossier then provides the human rights situation for HIV+ individuals and LGBT individuals in Venezuela through a summary of governmental reports, reports by Non- Governmental Organizations, scholarly literature and media reports. Case Law: s. 97(1)(b)(iv) and claims related to health care The health care exclusion in the Immigration and Refugee Protection Act requires that the personal risk to the life of the claimant is not caused by their home country’s inability to provide adequate health or medical services. The leading case on the health care exclusion appears to be Covarrubias v. Canada (Minister of Citizenship and Immigration)  3 F.C.R. 169 which distinguishes between a country that is unable to provide care and one which is unwilling to provide health care for an unjustified or persecutory reason. Covarrubias states that while the former is excluded by s. 97(1)(b)(iv), the exclusion will not operate when the latter is the case. A country, for example, which deliberately allocates insufficient resources in a deliberate attempt to persecute or discriminate or for some other “illegitimate” reason, will satisfy this standard. In Contreras v. Canada (Minister of Public Safety and E mergency Preparedness)  F.C.J. No. 648, an HIV+ Guatemalan claimant was obliged to show that treatment was unavailable or denied on grounds of persecution. Gorzsas v. Canada (Minister of Citizenship and Immigration)  F.C.J. No. 561 established that the Board should not focus on the availability of treatment alone but should consider other factors such as: employment, educational, general health care and in-group discrimination. An applicant, Gorzsas states, need not prove a “sustained or systemic denial of core human rights” but instead that his personal circumstances put him at risk. Diaz v. Canada (Minster of Citizenship and Immigration)  75 Imm. L.R. (3d) 225 determined that the Board must address whether the stigmatization of HIV/AIDS impeded delivery of treatment and services by staff and whether systemic barriers as regards HIV testing and employment amount to persecution. Ramirez v. Canada (Minister of Citizenship and Immigration)  F.C.J. 1028 requires the Board to address discrimination from medical personnel and employment discrimination, as well as whether cumulative effect of discrimination amounts to persecution. In Leudjeu v. Canada (Minister of Citizenship and Immigration)  164 A.C.W.S. (3d) 389, when the Board determines that a “less than ideal” situation does not expose individuals to persecution, that decision will not be subject to judicial review. Travers v. Minister of Citizenship and Immigration  53 Imm. L.R. (3d) 400 held that that the correct approach to s. 97(1)(b)(iv) was to determine 1) whether the claimant’s life would be at risk and 2) whether the health care exclusion applies. In Travers, it was also determined that the availability of some treatment did not establish that the claimant’s life would not be at risk. In J.O. v. Canada (Minister of Citizenship and Immigration)  41 Imm. L.R. (3d) 305, the Board was criticized for failing to address issues such as denial of hospital treatment, inadequate treatment and employment discrimination. Case Law: Venezuelan claims made on the basis of sexual orientation Although there is little recent case law on homosexual Venezuelans, some decisions before the Board in the 1990s were positive. In B.W.L. (Re)  C.R.D.D. No. 316, an Argentine citizen who had lived in Venezuela for a time was deemed unable to live openly as a homosexual and unable to avail himself of state protection based on documentary evidence showing a long history of gay bashing and reports of arrests of young, effeminate gay men. The claim in C.L.Q. (Re)  C.R.D.D. No. 145 was also successful on the basis of documentary evidence of extreme physical violence against LGBT persons and police harassment of LGBT persons; the Board rejected the existence of an Internal Flight Alternative. The claimant in J.J.Y. (Re)  D.S.S.R. No. 50 was also successful on the basis of having been interrogated, humiliated, beaten and insulted twice in the span of three years by police. In A.(G.D.) (Re)  C.R.D.D. No. 92, the claimant had a well-founded fear of persecution based on documents establishing poor police treatment of homosexuals and their subjection to harassment and intimidation. The Board granted the claim in N.(O.I.) (Re)  C.R.D.D. No. 112 of a transgender Venezuelan on the basis of documentation attesting to the hostility of society to LGBT persons, the failure of police to treat LGBT victims seriously and the participation of police in rights abuses. The claimant in X.M.U. (Re)  C.R.D.D. No. 146 was successful on the basis of documentary evidence on the persecution of Venezuelan gays; although the claimant was criticized for failing to seek state protection, they accepted that homosexuals might not be assured of protection in Venezuela. Documentary evidence on the human rights situation of LGBT or HIV + Venezuelans Although English-language documentation on the human rights situation of LGBT or HIV+ Venezuelans is scare, a review of governmental and non-governmental organization reports, the academic literature and media reports reveals: Workplace discrimination and refusal of access to government health services for HIV+ individuals is widespread Non-consensual HIV testing is a frequent condition of employment and employers successfully avoid prohibitions on such practices HIV+ Venezuelans experience frequent rights violations or inhumane and degrading treatment at the hands of police officers Government agencies have failed to protect the rights of HIV+ people Despite a pronouncement by the Supreme Court of Venezuela that ARV therapy for HIV+ Venezuelans is a basic human right, responsible government agencies deliver inconsistent and inadequate treatment which seriously affects the quality of life for HIV+ people LGBT Venezuelans face discrimination, occupy a precarious position in Venezuelan society and are, because they fear reprisal, reluctant to report rights abuses LGBT persons are at a substantially higher risk in small towns or cities and rural areas LGBT Venezuelans are frequently assaulted, abused and murdered and suffer employment discrimination Rights abuses against LGBT persons are not vigorously investigated There are gay-friendly venues in Caracas and growing numbers attend Pride parades Certain governmental programs have become open to LGBT issues but government support remains discreet and inconsistent Law enforcement and agencies of justice have little legitimacy in the eyes of Venezuelan LGBT persons Police have engaged in illegal searches, detentions, the extortion of and beating of LGBT persons In 2003 in Caracas, there were 312 complaints related to the violation of human rights of LGBT persons by police lodged with an NGO; only 5% were lodged with authorities due to a fear of reprisal, fear of publicizing sexuality or lack of familiarity with the complaints process Transsexuals are subject to extreme violence at the hands of state actors Transsexual rights activists have been subject to detention and harassment by police I: L egislation: C anada 1. Immigration and Refugee Protection Act , R.S. C . 2001, c. 27, s. 97(1)(b)(iv). 97(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality, or if they do not have a country of nationality, they country of former habitual residence, would subject them personally . . . (b) to a risk to their life or to a risk of cruel and usual treatment or punishment if . . . (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. I I: C ase L aw: C anada 1. S. 97(1)(b)(iv) and H I V . F ederal Court of Canada (a) Covarrubias v. Canada (Minister of Citizenship and Immigration)  3 F. C .R. 169. Linden J.A. held s. 97(1)(b)(iv) should be “broadly interpreted, so that only in rare cases would the onus on the applicant be met” (31). On a balance of probabilities, claimants must establish there is “personal risk to his or her life” that was not “caused by the inability of his or her country to provide adequate health care” (31). S. 97(1)(b) includes situations where foreign governments allocate “limited public funds in a way that obliges some of its less prosperous citizens to defray part or all of their medical expenses” (38). However, s. 97(1)(b)(iv) “leaves open the possibility for protection where an applicant can show that he faces a personalized risk to life on account of his country's unjustified unwillingness to provide him with adequate medical care, where the financial ability is present. For example, where a country makes a deliberate attempt to persecute or discriminate against a person by deliberately allocating insufficient resources for the treatment and care of that person's illness or disability, as has happened in some countries with patients suffering from HIV/AIDS, that person may qualify under the section, for this would be refusal to provide the care and not inability to do so. However, the applicant would bear the onus of proving this fact.” (39). Linden J.A. concluded that if an individual is denied health care for an “illegitimate” (for example “persecutorial”) reason, the exclusion may not operate (41). (b) Contreras v. Canada (Minister of Public Safety and Emergency Preparedness)  F. C .J. No. 648. The Applicant was an HIV+ Guatemalan citizen. Heneghan J. determined that an applicant must show that medical treatment in his home country is unavailable or denied on grounds of persecution to HIV+ homosexuals. (c) Gorzsas v. Canada (Minister of Citizenship and Immigration)  F. C .J. No. 561. Teitelbaum D.J. held that, in assessing the risks faced by an HIV+ applicant, focusing treatment available alone while ignoring issues related to employment, education, general health care and in-group discrimination is unreasonable (22-26). Moreover, an applicant will not have to prove the inadequacy of an entire health care system just that his personal circumstances put him at risk; nor is “a sustained or systemic denial of core human rights” essential to the establishment of personal risk under the IRPA (27-28). Teitelbaum D.J. also cited the three legal principles relevant to a consideration of cumulative discrimination: 1) persecution is the harassment or affliction of an individual with repeated acts of cruelty or annoyance etc. 2) “in cases where the evidence establishes a series of actions characterized to be discriminatory, and not persecutory, there is a requirement to consider the cumulative nature of that conduct” and 3) “it is an error of law for the RPD not to consider the cumulative nature of the conduct directed against a claimant” (34). An analysis of the cumulative effects of discrimination must go beyond “bare acknowledgement that the individual had these risk factors” and canvass specifically the personal risks faced by an individual baring all these characteristics (36). (d) Aragorn v. Canada (Minister of Citizenship and Immigration)  77 Imm. L .R. (3d) 287. The IRB should not concentrate its analysis on one specific incident alleged by the applicant and his failure to seek state protection from the threat of retaliation (11). A PRAA officer should not assume the IRB has conducted a complete risk assessment (12). (e) Diaz v. Canada (Minister of Citizenship and Immigration)  75 Imm. L .R. (3d) 225. The IRB failed to address whether the stigmatization of HIV+ Mexicans impeded the delivery of treatment and services by medical staff and whether system barriers related to HIV testing and employment amounted to persecution on a balance of probabilities. The Board ought also to consider the applicant’s socio-economic status in relation to his HIV status as well his dearth of family support in a country where many HIV+ individuals rely on their families for care. (f) Ramirez v. Canada (Minister of Citizenship and Immigration)  F. C .J. 1028. Gauthier J. criticized the Board for failing to address allegations that HIV+ patients face discrimination from medical personnel in the provision of care and services and that HIV+ persons would face discrimination in employment (even though evidence was adduced to show Mexican employers conduct texting and will dismiss or refuse to hire infected person). Gauthier J. also criticized the Board for failing to address whether the cumulative effect of the discrimination faced by the applicants could amount to persecution. (g) Leudjeu v. Canada (Minister of Citizenship and Immigration)  164 A . C. W .S. (3d) 389. A PRRA officer will not be patently unreasonable where he or she reviews all the risks of discrimination alleged by the claimant but still determines that the less-than-ideal situation for HIV-infected individuals in Cameroon does not expose them to persecution. (h) Dia v. Canada (Minister of Citizenship and Immigration  160 A . C. W .S. (3d) 325. “The officer did not specifically deal with HIV. However, under section 97 of the Immigration and Refugee Protection Act, a risk caused by an inability of a country to provide adequate health or medical care does not constitute a risk to life or a risk of cruel and unusual treatment or punishment. Furthermore, the record shows that HIV treatment is available in Zambia, particularly in urban areas. She would be returning to Lusaka.” (i) Travers v. Minister of Citizenship and Immigration  53 Imm. L .R. (3d) 300. A claimant from Zimbabwe sought protection as a convention refugee under s. 96 of the IRPA and as a person in need of protection under s. 97 of the IRPA. His convention refugee claim was based upon evidence of stigma, discrimination and mistreatment of persons in Zimbabwe suffering from HIV/AIDS. As a person in need of protection, Mr. Travers claimed that, should he return to Zimbabwe, he would face a risk to life caused by the unwillingness of the government to provide adequate care. According to Barnes J., “the correct approach to the application of section 97 of the IRPA in a context like this one is to first decide if there is sufficient evidence to establish that an applicant's life would be at risk and then to determine if the health care exclusion applies” (18). Barnes J. held that “the fact that some level of health care would not be denied . . . does not establish that his life would not be at risk” (19). Following Covarrubias, Barnes J. was “not satisfied that the section 97(1)(b)(iv) exclusion is so wide that it would preclude from consideration all situations involving a person's inability to access health care in his country of origin. Where access to life-saving treatment would be denied to a person for persecutorial reasons not otherwise caught by section 96 of the IRPA, a good case can be made out for section 97 protection” (27). (j) De-Robles v. Canada (Minister of Citizenship and Immigration)  148 A . C. W .S. (3d) 299. The judge agreed with the Board’s doubt of the credibility of an HIV+ Argentine’s alleged fears of persecution based on his HIV status. (k) Mendez v. Canada (Minister of Citizenship and Immigration )  42 Imm. L R. (3d) 130. Campbell J. determined that a PRRA officer who refused to consider evidence concerning the persecution of HIV+ homosexuals in Mexico was patently unreasonable. (l) J.O. v. Canada (Minister of Citizenship and Immigration)  41 Imm. L .R. (3d) 305. Shore J. criticized the Board’s ignoring of documentary evidence giving examples of HIV+ persons in Nigeria being denied hospital treatment, given inadequate treatment and experiencing employment discrimination. 2. Homosexuals and Venezuela Immigration and Refugee Board of Canada (a) R.M.W.  C.R.D.D. No. 76. The claimant was a homosexual Venezuelan from Caracas who had lost a job because he did not hide his sexuality and latterly had to maintain secrecy about his sexual identity in order to preserve subsequent positions. He had also experienced beatings, detentions, arbitrary fines and robbery by police; extortion from private actors; and, beatings and blackballing by a former lover who wanted to maintain the secrecy of their relations. The Board doubted the credibility of the claimant’s account of his abuses at the hands of a powerful former lover. The report noted that, with respect to gays and lesbians, “Venezuela’s human rights record is mixed” (30). While homosexuality is more tolerated in Caracas, homosexuals are treated harshly elsewhere in the country and abuses do occur at the hands of security forces (30). The Board doubted, given the incredulity of his description of his former love affair, the veracity of his account of police abuse (30). (b) B.W.L. (Re)  C.R.D.D. No. 316. Here, the claimant was Argentine but had been sent to Venezuela by his father and subsequently returned when family members in Venezuela learned of his sexual identity (7, 10). In Argentina, the claimant had been raped and detained by police and feared the culture of machismo therein. The Board that the claimant would not be able to live openly as a homosexual in Argentina and nor would he be able to avail himself of state protection. Although homosexuality is not illegal per se, documentary evidence shows a long history of gay bashing. Although there are review boards that prevent police from arbitrarily detaining LGBT persons, there was no evidence that such boards had been implemented. The Board was also persuaded by reports of the arrest of young, effeminate, gay men under Article 78 (Offenses Against Public Modesty). (c) C.R.H. (Re)  C.R.D.D. No. 178. The Venezuelan claimant alleged that he had been denied the right to serve in the military and had been verbally harassed and detained by police. He had a relationship with an army colonel who allegedly persecuted and attempted to murder him when the relationship ended. The claimant fled to Caracas without success and then Valencia. In January 1994, he was arrested in a raid on a gay bar. The Board doubted the claimant was homosexual based on his lack of knowledge about homosexuals in Venezuela nor did the Board find his account of the relationship with the colonel plausible. (d) E.N.U. (Re)  C.R.D.D. No. 67. The Board doubted the claimant’s allegation that he was actually gay. “The remainder of his testimony regarding his sexual identity and his subsequent homosexual activities was vague and generalized, e.g., dressing up in his sisters' clothes when he was 10; cruising a park in San Cristobal; a shortterm secret liaison in Nueva Esparta. He knew little about the situation of gays in Venezuela, information which the panel would expect him to know if he was aware of his own sexual orientation since he was a teenager” (13). (e) C.L.Q. (Re)  C.R.D.D. No. 145. The claimant was a lesbian from Venezuela who had been detained by police, threatened with rape and sexually touched. The Board accepted evidence from authoritative sources showing the subjection of homosexuals to police harassment and violence and detention of gays under the Loy Sobre Vagos y Maleantes (Law of Vagrants and Crooks) (16). The Board noted that the dearth of documentary evidence on lesbians in Venezuela could be attributed to the overall invisibility of the group (17). There were accounts of a Caracas couple being held at gunpoint by police, extortion, rape in detention and extreme physical violence against both gay men and women. The Board also determined that there was no viable Internal Flight Alternative in Venezuela. (f) J.J.Y . (Re)  D.S.S.R. No. 50. The claimant was a homosexual with citizenship in Columbia and Venezuela. The Board determined: “La preuve présentée révèle que le revendicateur a été l'objet de persécution de la part des autorités vénézuéliennes à cause de son orientation sexuelle et de son implication au sein du comité exécutif du groupe social "la Fondation Vie pour la vie" et dans le cadre du programme Action Sida combinée à sa participation dans ce contexte, de dénonciations contre la corruption et la fraude perpétrée par des élus municipaux” (6). The claimant had been interrogated, humiliated, beaten and insulted twice in the span of three years by metropolitan police for his activist activities (6). The Board also noted the corruption of municipal officials and the precarious situation of homosexuals in Venezuela (7, 13). It also noted the application of the Law On Vagabonds and Criminals to homosexuals. (g) A. (G.D.) (Re)  C.R.D.D. No. 92. The claimant was from Caracas and a member in a gay activist group. He had been arrested and harassed by police several times and also dismissed from his work position when police revealed his sexual identity to his employer. The Board accepted that the claimant had wellfounded fear of persecution based on documents showing political instability, high levels of corruption, serious human rights abuses by police and failure to punish these abusers as well as victimization of activists. In addition, the Board accepted that the situation of homosexuals was “very poor” and that homosexuals were subject to police harassment and intimidation. They were also detrained under the country’s Vagrants and Criminals Law and, in prison, subject to serious abuses. (h) N. (O.I.) (Re)  C.R.D.D. No. 112 The claimant, a transgender female from Venezuela, was deemed a Convention refugee. The claimant had been detained by police, subject to extortion and shot with a pellet gun. The Board accepted documentary evidence on police abuse (raids, beatings, public humiliation and arbitrary detention) and general threats to the lives of transgendered persons from non-state actors. According to the Board “documentary evidence portrays a society hostile to homosexuals and even more hostile to transvestites and transsexuals. We note that this documentary evidence corroborates the claimant's testimony that police do not take complaints of by transsexuals and homosexuals seriously and do not even attempt to make a genuine effort to provide protection to homosexuals. Indeed, the agents of persecution are often state authorities themselves. We find that the claimant has met the onus of rebutting the presumption of state protection. i) X . M.U. (Re)  C.R.D.D. No. 146. The claim, a homosexual Venezuelan, reported a number of brutal experiences and police abuses (including raids, detention and rape). Reports confirmed the persecution of LGBT persons in Venezuela and the discriminatory use of the Ley Sobre Vagos y Maleantes to detain homosexuals. The Board criticized the claimant’s unwillingness to seek protection (stating that the hostility of some police members to the gay community did not illustrated that the entire law enforcement division would be opposed to offering assistance) but realized that a homosexual “might still not be assured of adequate protection, in a country where ordinary citizens may be generally assured of protection” (3637). There was, moreover, no realistic flight alternative for the claimant. I I I: Government Reports (a) United States (i) Bureau of Democracy, Hum. Rts., and Lab., U.S. Dep’t of State, Venezuela: Country Reports on Human Rights Practices—2008 (25 F ebruary 2009), online: < http://www.state.gov/g/drl/rls/hr rpt/2008/wha/119177.htm>. “There were no reliable statistics on societal violence or discrimination based on sexual orientation. According to the NGO Citizen Action Against AIDS, persons diagnosed with HIV/AIDS frequently were discriminated against at the workplace and often were refused access to government health services.” (b) C anada (i) Immigration and Refugee Board of C anada, Venezuela: Situation and treatment of homosexuals; recourse available to those who have been harassed based on their sexual orientation (2004- F ebruary 2006) (17 M arch 2006) V E N101086. F E online: <http://www2.irb- cisr.gc.ca/en/research/rir/index_e.htm?action=record.viewrec &gotorec=450019>. LGBT Venezuelans face discrimination and occupy a precarious position due to “social rejection”, according to LGBT NGO Union Affirmativa de Venezuela (UNAF). This situation makes them reluctant to report rights abuses and, despite frequent assaults, there are no statistics. Homosexuals often, an activist cited in Green Left Weekly asserts, do not report discrimination due to distrust, bureaucratic complications and fear of reprisal. Discrimination is less common in large cities like Caracas but individuals are at risk in smaller towns, cities and rural areas. A UNAF representative avers, “homosexual couples could move about the streets as they wished and that, in his opinion, a homosexual knowing his or her rights is like having [translation] "an antidote" to violence.” A representative from the Movimiento Gay Revolucionario de Venezuela attributes discrimination to cultural factors and exonerated the State of culpability. He cited official representation of the government at LGBT events; two other activists observed growing numbers attending events and increased private and public support for events (including police protection). Some LGBT persons support Chavez but claim gays need increased participation in government and homosexual legal issues need open discussion. Many gay Venezuelans are rejected by their families and “end up on the street or living in very precarious conditions.” Although there are no legal prohibitions on homosexuality or same-sex acts, a gay rights activist stated LGBT Venezuelans are still assaulted, mistreated and sometimes murdered and no public policies prohibit discrimination based on sexual orientation. Despite Labor laws prohibiting discrimination based on sexual orientation, homosexuals are still under threat of losing jobs, UNAF states. This compels many to hide their sexual identity. Employers disguise the dismissals as “staff cutbacks.” Green Left Weekly states that the AG Venezuela established a division to deal with LGBT needs but the IRB could not find additional information on recourse available to homosexuals encountering harassment. The IRB noted that Venezuela Lambda Alliance was a legally based gay NGO providing community services with operations in Caracas and rural areas. The Movimiento Gay Revolucionario de Venezuela is a leftist LGBT organization. The UNAF has never received any threats and distributes educational materials. There are several venues catering to gays in Caracas. (ii) Immigration and Refugee Board of Canada, “Venezuela; Situation and treatment of homosexuals; recourse available to those who have been victimized because of their sexual orientation (2002-2004),” (2 March 2004) VEN42331.E online: <http://www2.irb- cisr.gc.ca/en/research/rir/index_e.htm?action=record.viewrec &gotorec=446504>. The Research Directorate cited a gay travel website describing the “thriving” gay population of Caracas with several venues catering to LGBT persons. Organizations such as Lambda Alliance of Venezuela, based in Caracas operate several LGBT-oriented services including a phone hotline; it following up on complaints to authorities. The 2003 gay pride parade attracted 2,000 attendees and enjoyed police protection and support from the Office of the Mayor of Caracas. “According to the Executive Director of the Lambda Alliance of Venezuela, the country's Protestant and Roman Catholic churches are always strongly critical of the gay pride march, and participants are sometimes insulted or threatened by public officials present at the [yearly] event.” The coordinator of the UNAF has indicated positive developments concerning the human rights of LGBT persons: organizations like the Venezuelan Program of Action-Education in Human Rights, the Justice and Peace Support Network and the Ombudsman have become open to these issues and members of the judiciary (prompted by UNAF) have taken interest in this group. Governmental support, however, remains discreet and inconsistent. While labor laws prohibit discrimination based on sexual identity, these laws are not respected in practice, UNAF and the Lambda Alliance aver. These organizations also complain that abuses go unreported “because [victim employees] are afraid it could lead to difficulties in finding another job.” UNAF also reported that cases of police entering hotels frequented by homosexuals, engaging in illegal searches and detentions, harassment, extortion and beatings. The group noted a “sustained increase” in Human Rights violations against homosexuals in Caracas over the years: in 1998, 85 complaints; in 1999, 92; in 2000, 121; in 2001, 152; in 2002, 200; in 2003, 312. In 2003, 46 cases related to use of verbal aggression by state security, 29 to verbal aggression by private security, 31 to illegal detention by state security, 38 to illegal detention by private security, 24 to coerced sexual activity, 51 to harassment, 2 to assassination, 16 to assault causing bodily harm, 17 to refusal of hospital treatment, 17 to expulsion from homes by family and 29 to miscellaneous violations. Of these complaints, only 5% were eventually lodged with authorities; those who did not report stated they were afraid of reprisal (45%), 22% were afraid of publicizing their sexuality, 20% were not familiar with the complaints process and 13% feared their parents would discover their orientation. Of the agencies to which a complaint may be lodged, the ombudsmen showed greater receptivity than the Attorney General. The UNAF also indicated a reluctance to report mistreatment by state actors due to a fear of repercussions “and that the bodies charged with responding to victims' allegations are in any case incapable of providing them with protection.” The UNAF Coordinator stated that he himself had been told homosexuals have no rights when he attempted to file a complaint. Lambda Alliance concurred that the police treat homosexuals poorly when they attempt to file a complaint. Homosexuals living outside Caracas are also at risk. Those in Valencia, for example are, according to a 2002 Amnesty International report, in constant fear of harassment, ill treatment and arbitrary detention by police and cannot move freely. I V : Non-Government O rganizations (a) Acción Ciudadana Contra el SI D A (i) E dgar C ar rasco, V ictor C astillo, G abrielle G uerón, Informe sobre Homofobia, Violencia e Impunidad contra la Conunidad Lesbiana, Gay, Transexual y Bisexual en the República Bolivariana de Venezuela (2008). Spanish language report being translated by Carlos. (ii) A cción C iudadana Contra el SI D A , Informe F inal del Estudio Diagnostico Situacional de las Personas Viviendo con VI H/SI D A en Venezuela (February 2007). Spanish language report being translated by Carlos. (iii) A cción C iudadana Contra el SI D A , Informe Final del Proyecto “Discrimination y E xclusión Social por VI H/SI D A (A pril 2004). Spanish language report being translated by Carlos. (vi) E dgar C ar rasco and M arcia O choa, Informe Sobre Impunidad en Violacion de los Decrechos H umanos Comunidad G L B T (31 M ay 2003). Spanish language report being translated by Carlos. (ii) E dgar C ar rasco M ilena L iani, W alver V illegas, Report on Human Rights and H I V/A I DS: Venezuela online: <http://www.laccaso.org/pdfs/venezuela_andean.pdf>. The report begins highlighting major advances with respect to human rights in Venezuela’s Constitution of 1999: 1) a principle of progressiveness of human rights “as well as the aspects related to non-renouncability, indivisibility and interdependence”(6); 2) treaties and international agreements as sources for human rights that may be favored over internal regulations (6); 3) the right to access data about oneself (7); 4) Access to justice and the establishment of “collective and extended rights [that] increase human rights protection for people sharing the same situation, but unable to attend court” (7); and (5) State responsibility “to investigate and punish human rights violations and to indemnify victims when necessary” (7). These constitutional protections, however, are compromised by “a different reality that comprises serious problems such as: impunity, corruption of judicial entities, excessive abuse of power, poverty, lack of personal security, etc.” (8). Civil and political rights, moreover, have “deteriorated ever since 1999” and many reports from the Human Rights Commission reflect “the ongoing increase of cases that transgress the right to life, to personal integrity, to citizen safety, likewise, cases that involve people disappearance, and freedom of expression restraint” (9). Economic, social and cultural rights have received uneven protection (9). Persons living with HIV/AIDS come within the scope of the Constitution’s protection of human rights by virtue of a principle of equality and nondiscrimination designed to achieve broad human dignity (11). Under Article 21 of the Venezuelan Constitution (the right to equality and non discrimination), the State is obliged to adopt “positive measures favoring groups or peoples that might be discriminated, neglected or prejudiced” and entitles people with special needs, including those living with HIV/AIDS, to “use their capacities fully and autonomously and to integrate themselves into family and community” (11). Under Article 46 (the right to physical, psychological and moral integrity), preserves Venezuelans from torture, inhuman or degrading treatment and nonconsensual scientific and medical testing (12). The authors note that “interpretation problems have arisen when dealing with medical tests consent since most employers request these tests to be run before getting a job or for keeping one, without implying that the subject has consented them” (12). Articles 43 and 83 establish health as a “basic social right” which the State must guarantee and thus confirms national jurisprudence on the treatment of people living with HIV/AIDS (12). The health system must be, according to a constitutional system, free, universal, integral, equal, socially integrated and cooperative (13). Article 86 entitles everyone, including the financially disadvantages, to social security (13). Articles 102 and 103 guarantee principles of equality and non-discrimination in relations to education and, by implication, precludes lack of access to HIV-infected Venezuelans (13). The right to work, under Article 86, is constitutionally protected and the following principles are preserved: “intangibility and progressiveness of rights and benefits; non- renounceability to them; application of the best regulations favoring workers, invalidity of any employer’s act which is opposite to constitutional dispositions; non-discrimination and protection from economical and social abuse, especially of teenagers” (14). The authors, with this in mind, state that a “request for an HIV test as a requirement for getting a job would be considered an action out of the constitutional framework since it violates the principle and right to equality and non-discrimination thus any action involved would be considered ineffective” (14). The report also made note of regulations by the Ministry of Health and Social Development requiring pregnant women to take HIV tests, providing ARV treatment to positive pregnant women before, during and after birth, consolidating HIV/AIDS programs into one program, the rendering of testing services regardless of any distinction, consensual HIV testing, the notification of HIV/AIDS cases by health institutions “in order to apply the corresponding medical treatment” (14-16). The report also noted that, on November 29 2002, “the Juridical Consulting of the Ministry of Labor issued Decision No. 71 that, for the first time in Venezuela, officially states recommendations for dealing with HIV/AIDS in the workplace” (17). The report summarized the HIV/AIDS National Program of Venezuela and its aims to prevent HIV transmission through informational programs, to increase the scope of integral assistant (including free medical treatment), improved epidemiological information, preventing mother to child transmission and designing “effective instruments for reporting human rights violation of the people living with AIDS and of other vulnerable populations” (20). The budget for this Program in 2002 was 50 thousand million bolivars of which 20 thousand million ($26, 160, 889.47) were intended for the purchase of ARVs (21). Increased spending on ARVs reflects an increased demand over the years 2000, 2001, 2002 (21). SUMED SEFAR, through AIDS Regional Coordination officers, implemented processes for the distribution of medicines (22). In response to space limitations for patients and drug distribution and insufficient staff at an HIV/AIDS treatment hospital in Caracas, the IVSS Centro de Immunología Clínica opened October 2000 (26). This clinic experienced some “administrative chaos” in 2002 with the effect of “causing certain instability” (26). In June 2002, a shortage in ARVs presented itself in Caracas which “serious affect[ed]” the quality of life by creating an opportunity for resistance to drugs and absence from work (28). The delay was dues to a problem with purchase orders (28). This situation, and another involving viral load testing, “show that IVSS is not complying with its obligations” stated in a regulation obliging the provision of HIV permanent HIV treatment as well as the administration of relevant testing for infected individuals (29). Budgetary, staffing and space limitations have also impeded the provisions of “integral health service[s]” (30). The report also stated that the Citizen Branch of The Office of the Public Defender issued a memo, on October 27, 2000, urging the Venezuelan state to curb discrimination and rights violations of HIV+ citizens (32-34). This Office has assisted in achieving a judicial decision prohibiting educational institutions from requiring HIV tests and “cooperating in providing solutions for homeless [persons] living with HIV in Caracas” (34). However, despite these “great efforts carried out in relation to human rights, desired advances related to HIV/AIDS have not been achieved yet, specially in relation to case solution, since most of the cases have not received proper treatment” (34). Some officers are disinterested in finding solutions for human rights violations of infected persons and flawed investigations occur (34). Many suits accepted the offender’s plea for innocence leading the Public Defender to state that no rights violation had occurred. The Ministry of Education, Culture and Sports has developed programs related to HIV/AIDS including amendments to educational curricula (35). More than 50% of a Human Rights Program carried out by ACCSI (a Venezuelan HIV/AIDS NGO) involved work disputes ranging from firing, testing required to obtain or keep positions, unjustified incapability, profit share payment, accidents at work and access to social security (40). In 2000, a Ministry of Law Juridical Counseling issued Decision No. 71 which deemed discrimination based on HIV/AIDS a prohibited discriminatory activity and called requests for HIV testing “for getting or keeping a job” discriminatory and unconstitutional (41-42). According to the report, there are three shelters in the Metropolitan area of Caracas which “face serious difficulties due to the lack of granting of financial resources and the absence of good living conditions for the people living with HIV therein inhabiting” (45). Moreover, “it has been difficult for HIV+ cases to get admitted in these centers” (45). When ACCSI has had to negotiate for the admission of infected individuals, admission “has been granted upon conditions and agreements that place responsibilities on the NGO for the admitted people behavior and actions” (45). There are “no clear policies at [the] municipal level” regarding how “indigent HIV cases are managed” (45). Centres managed by nuns, moreover, have a negative HIV test requirement which authorities have not attempted to alter (45). The report also noted “a wide range of foundations and associations intended to work towards AIDS” existing in Caracas and other regions (48). These NGOs provide “emotional support, medical and laboratory assistance, juridical and human rights counseling, general advice, information centers, prevention programs, support group and medicine supply” (48). They have also filled in gaps in state support for infected persons and NGOs have received approval from the Ministry of Health and Social Development to carry out several projects (48) A document prepared by the Fundación Mexicana para la Salud and SIDALAC found that found that Venezuela had the “lowest percentage within national response shares for preventing and assisting HIV/AIDS (49). According to the authors, employment is one of the most frequent spheres in which HIV+ persons encounter rights abuses (59). Private and public corporations conduct non consensual testing on both prospective and current employees with the result of non hiring or dismissal (59). The report noted several human rights violations between the years 2000 and 2002. A worker, for example, at the Pandería Crocante was dismissed after the submission of an HIV test (51). An employee, after Instituto Venezolano de los Seguros Sociales (IVSS) disclosed his HIV status to his employer Unibanca, was dismissed (51). At FOSPUCA, a chief threatened to fire and humiliated an HIV+ employee (51). An HIV+ teacher was compelled to quit due to treatment by school’s administration and his colleagues (51). The Hotel Meliá Caracas, moreover requires HIV tests to obtain and retain positions; a party have been dismissed based on his stated (51). An HIV+ employee at PepsiCola has also been dismissed (51). HIV+ employees have also been dismissed, refused positions, experienced nonconsensual testing, experienced suspensions to their salary, beatings, noncoverage by their employer’s insurance policy at the Nuevo País Newspaper, Ultra Optica, The Metropolitan Ministry of Education, the TCG Consulting Group, the Banco Federal, Condominio Santiago de Leónin Caracas, Nino Carbonne, the Unión de Conductores La Responsable and PDVSA (5256). An officer with the Liberator Major was required was obliged to take an HIV test by her supervisor because coworkers claimed she was positive (5354). A soccer player with the Deportivo Italacao was tested, without consent, for HIV and dismissed (54). At the Ministry of Defence, test results of a sergeant were circulated amongst his troop (55). An educational institute, the FAN School of Communications and Electronics, Instituto Universitario Militar, had HIV testing as a requirement to preregistration (54). The Universidad Pedagógica Experimental Liberator (UPEL), Liceo Aplicación (Caracas), Instituto de la Policía Metrolpolitana and the Institutor Cecilio Acosta (Los Teques) also imposed HIV/AIDS testing as an admission requirement (60). There were also reports of abuses within the health care system. A homeless person living with AIDS was denied entry to the Hospital Algodonal and the emergency services of Hospital Vargas (53). At the MHSD Regional Hospital in Valle La Pascua, Edo. Guárico, doctors were accused of discriminatory and poor medical practices; there, patient privacy was compromised through the spread of flyers in the streets (54). The Instituto de los Seguros Social (IVSS) was responsible for irregularities in ARV treatment supplies (54). At the Hospital Clinico Univeritario de Caracas, hand surgery was delayed to an HIV+ patient who required immediate assistance (55). Staff at the Hospital Gurí Ormesa/Edelca spread an HIV+ person’s diagnosis around the community, destroying his business (56). The Acción Ciudadana Contra el SIDA (ACCSI) was successful in a court case against IVSS requesting regular ARV treatment and use of new technologies for HIV treatment (5657). In 1998, IVSS issued “an administrative order that acknowledged the right to access to treatment for HIV+ persons” (57). It was also successful in a court case, in December 2002, involving an HIV+ soccer player who had been dismissed on the grounds of his HIV status (58). The report also stated that police frequently violate the rights to freedom and personal security of HIV+ persons (58). Especially affected were homosexuals and transsexuals who are “insulted and . . . physically and verbally attacked by police agents and mall security guards” (58). Police, the report states elsewhere, “have been involved in criminal actions and inhuman and degrading treatment towards” homosexuals and bisexuals (67). Hospitals and health centers were also agents of discrimination who provided non-continuous ARV treatment, rejected HIV patients and subjected patients to discrimination (59). According to the report, the Office of the Public Defender has not, due to its complex bureaucracy, been efficient in the enforcement of its objective to protect the rights of HIV+ people (73). (b) World Policy (i) A ndrew Reding, Sexual Orientation and H uman Rights in the Americas (December 2003) online: < http://www.worldpolicy.org/projects/globalrights/sexorient/2003-L G B T- A mericas.pdf>. According to Reding, “Brazil, Argentina, Mexico, and Venezuela all show strong regional contrasts in treatment of sexual minorities. LGBT individuals remain very much at risk in smaller towns and cities and rural areas” (2). In Latin America, macho and sexually dominant men are less likely to be considered homosexual and “suffer little if any social stigma” (3). By contrast, effeminate men “are subject to constant taunting, verbal and physical abuse and discrimination” (3). Reding also observed a “close correlation” in Latin America between’ patterns of discrimination against sexual minorities and patterns of neglect of HIV/AIDS” (3). He assert that: In some countries in Latin America and the Caribbean, it is not uncommon, and sometimes not illegal, for businesses to screen prospective employees for HIV. In those countries where free access to advanced antiretroviral therapy is contingent on employment-based national health insurance coverage, being denied such employment can be tantamount to a death sentence for anyone who cannot otherwise afford treatment. (3) Although the coordinator of LGBT unit of Venezuela’s Amnesty International chapter described the social attitude of “general tolerance” with “incomprehension and ignorance prevail[ing]” and the violence is not widespread, gays fear losing their jobs and abuses are not vigorous investigated (42). Employers often fire gay employees, citing other reasons (42). Transsexuals and transvestites have been illegally detained by police and subject to illegal searches (42-43). Transvestites have been subject to extreme violence, sometimes resulting in murder (43-44). (c) H uman Rights Watch (i) H uman Rights W atch, Together, Apart: Organization around Sexual Orientation and Gender Identity Worldwide (New Yor k : H uman Rights W atch, 2009). The report noted that Venezuela has “national protections against sexual-orientation- based discrimination—though none for gender identity” (34). However, the report notes that “progress has had an uneven reach. Brazil, a transgender activist pointed out, “has the largest Pride parade in the world, but also some of the highest levels of hate crimes against LGBT people.” Laws used to arrest transgender people in public places—along with sex workers, gay men, and lesbians—are still on the books across [South America]” (34). The report also found that transgender people encountered, in the health care system “discrimination, abuse, lack of access to services, and comprehensive refusal to acknowledge their identities” (35). One Venezuelan activist stated, “Nine out of ten trans people do not consult doctors even in case of serious illness, because of the mistreatment they know they will face in health services” (35). Discussion of sexuality was lamentably minimal in Venezuelan schools and, when it is addressed, heterosexual models are put forth (36). Religion, and a politicized version of the family it put forth, was cited as a persuasive force in Latin America (36). Finally, Venezuelan activists lamented the fact that the gay rights movement in Venezuela lagged behind movements in neighboring Latin American countries; these neighbours were not providing sufficient assistance to less fortunate countries (37). (ii) H uman Rights W atch, A Decade Under Chávez: Political Intolerance and Lost Opportunities for Advancing H uman Rights in Venezuela (New Yor k : H uman Rights W atch, 2008). “This book examines the current state of Venezuelan democracy from a human rights perspective. It does not address all the pressing human rights issues [facing the country today, many of which pre-date the Chávez presidency. Rather, it focuses on the impact that the Chávez government’s policies have had on institutions that play key roles in ensuring that human rights are respected: the courts, the media, organized labor, and civil society” (2). No direct discussion of HIV/AIDS and sexual orientation human rights issues. (d) International Gay and Lesbian H uman Rights Commission (i) International Gay and Lesbian Human Rights Commission, “Venezuela: Protest the Murder of a Transwoman in Caracas,” (10 June 2009) online: <http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/globalactionalerts/921.html>. In May 2009, a transwoman was shot by an unknown individual in Caracas and died of injuries. According to the article, “[t]his is the fourth murder to affect the Caracas transgender community in the last six months.” (ii) International Gay and Lesbian Human Rights Commission, “Venezuela: Trans A ctivist H ad to L eave the Country Due to Police H arassment and Is Asking for Protection,” (22 May 2006) online: <http://www.iglhrc.org/cgi- bin/iowa/article/takeaction/globalactionalerts/268.html>. An activist for transsexual rights witnessed the murder of her friend in Valencia and underwent severe harassment by police (including a shooting which temporarily paralyzed her). She had been followed to Barquisimeto and Caracas. (iii) International Gay and Lesbian Human Rights Commission, “Venezuela: Transgender Activist In Hiding After Threat From Police,” (2 December 2002) online: <http://www.iglhrc.org/cgi- bin/iowa/article/takeaction/globalactionalerts/646.html>. A transgender activist leading called for justice after the murders of transsexuals, allegedly by police in Carabobo, is facing threat of arrest and violent police retaliation. (iv) International Gay and Lesbian Human Rights Commission, “Venezuela: New Violence Against Transgender People,” (22 January 2002) online: <http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/globalactionalerts/641.html>. On January 11, 2002, a transgender woman was shot dead in Valencia and police involvement is considered highly possible. Police were accused on involvement in the murder of a transgender woman in July 2000. A uniformed officer shot at another trans woman on January 13. On January 16, two transgender activists were placed in incommunicado detention without information on the charges laid against them. (v) International Gay and Lesbian Human Rights Commission, “Venezuela: Harassment of Transvestites,” (4 April 2001) online: < http://www.iglhrc.org/cgi- bin/iowa/article/takeaction/globalactionalerts/703.html>. Commander of Police in Carabobo has stated that “homosexuals and prostitutes are to be ruled by a police code. The cannot move freely in the streets.” [emphasis mine]. Trans activists claim that the Commander “has also begun taking direct revenge on activists who have publicized police abuse to the international community.” (e) International L abor O rganization (i) International L abour O rganization/Joint United Nations Programme on H I V/A I DS, People at Work: Addressing Stigma and Discrimination (2006). “Venezuela: A professional football player was fired because he tested HIVpositive. The test was done by his employer without his consent and the positive test results were communicated to other players and others involved in the sport. On 6 February 2003, the tribunal ordered his reinstatement with full employment entitlements and benefits. Establishing an important precedent, the tribunal ruled void the “agreement” he had signed, under employer pressure, waiving his rights . . .” (7). (f) Pan American H ealth Organization (i) Pan America Health Organization, “Toward Universal Access to Prevention, Care, and Treatment,” (2006). According to this report, over 90% of Venezuela’s health districts were providing ARV treatment (21). The report also stated that “Venezuela’s surveillance of HIV care and treatment was improved with 3 by 5 funding as well. In 2005, the country’s National AIDS Program implemented a new information system to monitor care and improve patient follow-up. Using data from the system, a centralized team will be able to track cases, monitor therapies, and assist physicians with treatment” (35). (ii) Pan-America Health Organization, “Understanding and responding to H I V/A I DS-related stigma and discrimination in the health sector,” (Pan A merican H ealth O rganization, 2003). “A 1996 study of322 health workers revealed higher consistent negative attitudes among dentists (36% rejection; 45% discrimination) and nurses (26% rejection; 46% discrimination) than among doctors (27% rejection; 42% discrimination) and students (23% rejection; 42% discrimination). This was “[p]robably due to the higher risk of contagion present in the clinical activities of these professionals”. (Prieto Belisario 1996) Segurado et al 2003) In 2002, the government launched a national campaign intended to promote diversity and to reduce discrimination against homosexual men” (34). (g) Latin American and Caribbean Council of AI DS Service Organizations (i) L atin A merican and C aribbean Council of A I DS Service O rganizations, “Report on access to comprehensive care, anti-retroviral treatment and human rights of people living with HIV/AIDS in Latin American and the Caribbean,” (October 2002). Despite recognition by the Venezuelan Supreme Court of the right of IVSS (Institute of Social Security) members to regular and continuous delivery of ARVs in 1997 and, in 1999, access to ARVs as a basic human right (5), the country has “recently faced serious interruptions in ARV treatment supply [and] NGO organizations and persons living with HIV have filed claims and judicial resources aimed at improving and regulating supply and services” (11). Inefficient “bureaucracy and public programs” have caused shortages in medication, lack of inventory control, expiry of medications, lack of planning and organization for the delivery of medicine, lack of capable personnel, lack of counseling for HIV+ persons, lack of pharmacy monitoring and other deficiencies and irregularities (26-27). According to the report, a “[l]ack of programmed purchase by the sectors involved has made interruption in ARV access treatment a constant problem to be faced by people living with HIV/AIDS. Sometimes, “cocktails” are partially delivered and in some cases, people living with HIV/AIDS must request donations from NGOs or get financial aid for acquiring or completing indicated therapies. Likewise, ARV treatment access budget depends on the results of public bond sales outside the country (26-27) (h) U N A I DS (i) U N A I DS, H I V – Related Stigma, Discrimination and H uman Rights Violations: Case Studies of Successful Programmes (Geneva: U N A I DS, 2005). “[I] in July 1999, the Supreme Court ordered the Ministry of Health to provide, free of charge, antiretroviral medications, treatments for opportunistic infections and diagnostic testing to all Venezuelan citizens and foreigners resident in Venezuela who are living with HIV. This was the ﬁrst time the Court had ruled in the collective interest. The Supreme Court said that the right to health and the right to life were closely linked in this case to the right to access the beneﬁts from science and technology. It cited recent developments in antiretroviral therapy as examples of the achievements of science and technology; and it said that these developments allow people living with HIV to prolong their lives and to improve their quality of life. To guarantee the implementation of court rulings, ACCSI established committees of people living with HIV who volunteered to observe and facilitate the process between Ministries, people living with HIV, and the pharmaceutical industry, and to help ensure adequate supplies. Despite challenges relating to insufficient budgets and supply failures, the programme is assisting approximately 15 000 people living with HIV” (58-59). V : A cademic Scholarship 1. HIV and refugee claims (Non-Venezuelan) (a) “Federal Court orders judicial review of decision on Mexican refugee application”, (2009) 14:1 H I V/A I DS Policy & Law Review. This article reports on Diaz v. Canada , a Federal Court order for judicial review of a negative refugee claim. This claimant was a homosexual HIV+ Mexican. The court held the Board did not adequately address question of whether stigma directed at HIV+ Mexicans “affected the delivery of treatment and medication by medical staff in Mexico” and whether “systemic barriers” linked to HIV testing and employment “amounted to persecution.” The Board also overlooked links between the claimant’s socio-economic status and HIV status and the claimant’s family would not care for him even though, in Mexico, families are usually the primary caregivers for infected persons. (b) “HIV-positive man from DRC deemed a ‘person in need of protection,’” (2008) 13:2 H I V/A I DS Policy & Law Review. The IRB accepted that the manner in which the Congolese government treated the HIV epidemic posed a risk to the life of an HIV+ refugee claimant. The Board accepted that a government which is unwilling to pay for ARV treatment despite resources and military expenditures and whose health care system stigmatizes infected individuals and which tolerates rape and military and police leading to HIV transmission “willfully neglects people with HIV and is willfully indifferent to the spread of HIV infection.” (c) “Federal Court of A ppeal examines for first time refugee protection on the basis of inadequate health care,” (2007) 12:1 H I V/A I DS Policy & Law Review . The decision in Covarrubias v Canada (2006) “provides an opening for a failed HIV- positive claimant to legally remains in Canada where the country to which she is to be deported has in bad faith failed to provide adequate health or medical care to people living with HIV/AIDS.” (d) “Federal Court overturns negative Pre-Removal Risk Assessment of H I V- positive failed refugee claimant,” (2005) 10:2 H I V/A I DS Policy & Law Review . The Federal Court founds that a PRRA Officers erred in disregarding new evidence from a friend of the claimant describing his own “humiliation and suffers as he attempted for five years to obtain adequate HIV treatment in Mexico.” (e) “Court orders Immigration and Refugee Board to take into account evidence of H I V-related discrimination,” (2004) 9:3 H I V/A I DS Policy & Law Review . This article recounts a Federal Court’s grant of an application for judicial review of a negative decision by the IRB with respect to an HIV+ Nigerian woman’s claim. The Court held that the IRB “ignored salient documentary evidence” concerning discrimination that the claimant would face from family and community, in employment “and other systemic discrimination.” It also “found that the IRB contradicted itself by citing evidence of widespread discrimination against HIVpositive Nigerians, but then ruling out the possibility of systemic discrimination.” (f) “Federal Court orders redetermination of HIVpositive Zimbabwean’s refugee claim,” (2006) 11:2/3 HIV/AIDS Policy & Law Review. The Federal Court determined that the s. 97(1)(b) “analysis involved two steps. First, the IRB should decide whether there is a risk to life. Second, if there is such a risk, the IRB must determine if the health care exclusion is applicable. The Court found that the IRB made an error when it ‘expressly declined to qualitatively assess the treatment programs that would be available’ to the applicant, instead finding that ‘some level of health care would not be denied’ him. In doing so, the IRB ‘wrongly conflated the two parts of the test.’” Moreover, “The Court rejected the distinction between "unable" and "unwilling." The Court found that the health care exclusion would exclude from refugee protection persons who could not access health care because they do not have the resources to pay for it.” 2. LGBT in Venezuela Elisabeth Jay Friedman, “Gender, Sexuality and the Latin American Left: Testing the Transformation,” (2009) 30:2 Third World Quarterly 415. According to this study of Brazil, Bolivia, Chile and Venezuela, “the transformation of gender and sexual power relations is impeded by entrenched opposition, institutional roadblocks and inconsistent commitment on the part of leftwing executives” (415). Friedman noted that in “Venezuela’s ﬁrst constitutional reform in 1999, the Catholic Church blocked the addition of a clause stipulating non-discrimination on the basis of sexual orientation (along with abortion). Eight years later the clause was included in the unsuccessful 2007 constitutional reform” (428). Friedman noted that “today’s leftwing governments show a mixed commitment to women’s and LGBT rights” (430). Friedman concluded on Venezuela: The Bolivian and Venezuelan experiences conﬁrm the ﬁnding that constitutional reform processes can offer an opportunity for activists to promote women’s and LGBT rights. However, such mobilisation does not always lead to state action, particularly when church-led opposition is strong; in any case, the current reforms have either failed or face signiﬁcant opposition. (430) Tod W. Burke et al., “A CrossNational Comparison of Gay and Lesbian Domestic Violence,” (2002) 18:3 Journal of Contemporary Criminal Justice 231. According to the study, the negative light that is cast on homosexuality has led Venezuelan police to “ignore gay and lesbian victims” (237). Scholars, the media and the legal system have also “ignored the plight of gays and lesbian” (237). The research revealed that “Venezuelans overwhelmingly expressed a distrust of law enforcement” (249). A number of Venezuelan respondents thought that their local police department was biased against homosexuality (251). 61.11% of the Venezuelan participants in the study stated a distrust of the courts (251). The authors thus concluded “agencies of justice are accorded much less legitimacy in Venezuela than in the United States” (251). In Venezuela, “law enforcement has little legitimacy” for gays and lesbians (253). VI: Media Reports “Protesta de pacientes VIH positivo culminó en trifulca,” El Universal (16 July 2009) online: < http://www.eluniversal.com/2009/07/16/pol_art_protestade paciente_1474592.shtml>. [Spanish Language report] A peaceful protest in Carabobo state in front of the headquarters of the health ministry resulted in a violent clash between demonstrator and security personnel. The protestors were complaining about inadequacies of treatment (late delivery of ARVs and lack of equipment). Claudio Lomnitz and Rafael Sánchez, “United by Hate: The Uses of antiSemitism in Chávez’s Venezuela,” Boston Review (July 2009) online: <http://bostonreview.net/BR34.4/lomnitz_sanchez.php>. Although this article primarily addresses the flagrant antiSemitism in current Venezuela, it makes some pertinent remarks on homophobia in the country: Chávez thus refers to his opponents as “escuálidos” (squalids), a Spanish term that connotes not only dirtiness and abjection, but also flimsiness, wimpiness, and scrawniness. Not surprisingly, figures conventionally associated with degradation are important in the imagery. Homophobia is a key element in that repertoire; although unlike Cuba (Castro is Chávez’s admired “father”), which bans homosexuality and persecutes homosexuals, Chavismo relies on homophobia as invective rather than state policy. Will Grant, “Venezuela ‘silent’ on hate crimes,” B B C News (2 June 2009) online: < http://news.bbc.co.uk/2/hi/americas/8076379.stm>. In the course of a weekend four transsexual prostitutes are murdered in Caracas in conditions that suggest robbery was not the motive. Over 20 transsexuals have been murdered since 2009 began. Police are not interested in investigating murders of transsexuals. According to Prof. Tamara Adrian, a law professor in Venezuela, “"Hate crimes become absorbed into the more generic violence in this country and often are not identified as anti-gay hate crimes as such." Transsexuals are regularly humiliated and insulted in the streets; groups film themselves abusing transsexuals and post the videos on youtube. According to Prof. Adrian, “The important thing to understand about the LGBT community in Venezuela is that they are given no legal protection whatsoever . . . There are huge prejudices still in place among the legal actors themselves - inside the state prosecutor's office, the police, the judiciary and the national assembly.” “La homofobia lleva unifome policial” E ntornointeligente.com (22 M arch 2009) online: <http://www.asylumlaw.org/docs/sexualminorities/V enezuela T ransg.032209.pdf>. A Metropolitan Police officer harasses and intimidates a transsexual and a gay man. According to a recent report, “Homofobia, violencia e impunidad contra la comunidad lésbica, gay, bisexual y transgénero (LGBT) en Venezuela,” 50% of the study’s participants had negative experiences with state law enforcement officials Lyndon Barnett, “Venezuela Lagging On Reform,” Sydney Star Observer (18 February 2009) online: <http://www.starobserver.com.au/community/2009/02/18/venezuela-lagging-on- reform/4318>. “Caracas-raised Cesar, 41, believes Hugo Chávez’s pro-gay statements and actions are nothing more than political stunts to garner support from Venezuela’s gay and lesbian community.” “A year after his election victory, Chávez redrafted the Venezuelan constitution, increasing the presidential term from five to six years. Three years later he expressed regret on his weekly television program, Aló Presidente, that an anti-discrimination clause on the basis of sexuality was omitted from the new constitution.” “Culturally Venezuelan society has yet to embrace homosexuality completely. However, Caracas does have a gay infrastructure with gay bars and a keen activist movement. [The interviewee stated,]‘Nobody ever acknowledges being gay in Venezuela. Nobody would admit to it.’” “Exigen prueba para ingresar o mantener un tabajo,” E ntornointeligente.com (1 December 2008) online: < http://www.asylumlaw.org/docs/sexualminorities/V enezuela H I V120108.pdf>. There are several cases in Venezuela (including in Caracas) of non-consensual HIV testing being performed by employers as a condition of obtaining or maintaining employment. Bertrand Rosenthal, “Slow Progress Against HIV stigma in Latin America,” A E G IS (30 July 2008) online: < >. “Most countries in Latin America -- where some 1.7 million are HIV-positive according to the latest UNAIDS figures -- have anti-discrimination laws, but they rarely sanction those who fail to respect them. From Chile to Mexico, accounts of HIV discrimination abound.” “In Venezuela and El Salvador, NGOs have reported cases of companies carrying out AIDS tests without the individual's consent, leading to lay offs for those tested positive.” Rex Wockner, “Venezuela moves to protect gays,” International News (22 O ctober 2007) online: <http://www.asylumlaw.org/docs/sexualminorities/V enezuela102207.pdf>. A constitutional amendment to ban discrimination based on sexual orientation has passed a Venezuelan legislative committee and moved to the full National Assembly. Should the measure and other proposed changes pass the assembly, they would advance to a national referendum in December. Federico Fuentes & Kiraz Janicke, “Struggling for Gay and Lesbian Rights in Venezuela,” Green Left Weekly (December 2005) online: <http://www.venezuelanalysis.com/analysis/1512>. Interference of Catholic Church in Constituent Assembly, LGBT activists allege, have previously blocked LGBT rights resolutions. One activist attributed discrimination to the cultural factors rather than the state. Rex Wockner, “GLBTs march in Venezuela” International News (11 July 2005) online: <http://www.asylumlaw.org/docs/sexualminorities/V enezuela %20Rex %20071105.p df>. More than 3,000 GLBTs marched in the largestever pride parade in Caracas, Venezuela, July 3 from Plaza Brión to Plaza de los Museos. They demanded legal recognition of samesex relationships and an end to police abuse. "We're in the streets to obtain equality and the respect of society," Jesús Medina, president of Lambda Alliance, told the newspaper Últimas Noticias. "This is a cause similar to ones in the past to end racial discrimination and for women's rights to work and vote." “The Mayor’s Office in Caracas opens an office to service the LGBT community,” www.paginasboletinas.com (20 June 2005) online: <http://www.asylumlaw.org/docs/sexualminorities/C aracasM ayor L G B Toffice.pdf>. “Division para el Desarollo de las Personas Gays Lesbians, Bisexuales, Transexuales y Transgeneros”, operating under the Mayor office in Caracas, works to support NGOs addressing LGBT issues. Humberto Marquez, “Venezuela: NGOs Successfully Press for Replacement of Dubious AIDS Drugs,” Inter Press Service (19 July 2004) online: <http://www.aegis.com/news/ips/2004/ip040746.html>. The Venezuelan government agreed to supply alternative ARVs after versions of the drugs were removed from WHO prequalification list. Of the 4,970 Venezuelans who received the de-listed drugs, several suffered from skin rashes, stomach acidity, gastritis and swelling. Terry Kirby, “Societies Polarized by rising profile of homosexuals,” The Independent (5 July 2004) online: < http://www.independent.co.uk/news/uk/this- britain/societies-polarised-by-rising-profile-of-homosexuals-552098.html>. “The book, Sex, Love and Homophobia , by Vanessa Baird and published by Amnesty International, is an overview of the history of gays and lesbians and their current status around the world.” “The targeting and killing of transgender people, says the book, has become an "epidemic" on the streets of some South American countries - Argentina, Brazil and Venezuela - despite the progressive attitude towards gay rights of some local authorities in the first two countries.” Diana Cariboni, “Access to Anti-AIDS Drugs Varies Widely in Latin America,” A E G IS (1 December 2003) online: <http://www.aegis.com/news/ips/2003/IP031206.html>. In Venezuela, just over 10,000 people receive treatment with ARVs in the public health system, less than 20 percent of the 70,000 people living with the disease, according to NGOs. In 2001, the Supreme Court ordered that the cocktail therapy be provided to all patients free of charge.” “ “About 200 HIV-Positive V enezuelans Protest at Social Security O ffices O ver Access to HIV/AIDS Medicines,” The Body: The Complete H I V/A I DS Resource (8 A ugust 2003) online: <http://www.thebody.com/content/world/art11915.html>. 200 individuals in Caracas protested and the Social Security Institution (IVSS) to use donations to import and domestically produce ARVs. Due to a shortage, 3,500 HIV+ Venezuelans were forced to register with groups which donate medicines. One organization leader stated having to turn away patients due to insufficient supplies. The Venezuelan Supreme Court had obligated IVSS to cover costs in 2002.
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