On 25 June 2014 the National Assembly announced in official gazette No. 40.440 that the Law on Registration and Enlistment for Comprehensive Defence of the Nation (in Spanish, Ley de Registro y Alistamiento para la Defensa Integral de la Nación or LRADIN) came into effect on the same date. This law repealed the one that partially reformed the law of conscription and military enlistment, which was issued by the national executive and published in official gazette No. 39.553 dated 16 November 2010, and in which military registration was renormalized.
The head of the compulsory military record is the President of the Republic, who shall exercise this function through the Ministry of the People’s Power for Defence and other public administration bodies.
The military enlistment process will be carried out 3 times a year (January, May, September) and will be evenly distributed among the regular components of the National Bolivarian Armed Forces: army, navy, national guard, air force, and militia.
Among the most significant aspects of this law we find the following:
- The scope of implementation: The provisions contained in the law are applicable to Venezuelans by birth or naturalization within the age range, legal persons and public and private entities, in addition to the civil or military authorities responsible for registration and enlistment processes in accordance with what is established by this law and its regulations.
- Age range: for the purposes of registration, age range is understood as the ages between 18 and 60 years old. Consequently, Venezuelans included in this age group are subject to registration. In order to comply with the military service requirement, the age range stipulated is now between 18 and 30 years old, which provides for a considerable reduction from that of the repealed amendment which had established a limit of up to 60 years of age.
However, the scope of its applicability is extended to include the registration of natural and legal persons, Venezuelans by birth or naturalization, to contribute to the registry, and with the administrative authorities that are executing it. Furthermore, Article No. 41 establishes that all Venezuelans residing abroad must be registered in the military registry; non-compliance could lead to administrative or financial sanctions.
- Prohibition of forced recruitment: According to Art. 5 of the new law, forced recruitment is prohibited. No Venezuelan shall be subjected to forced recruitment, and the official who orders or executes it shall be punished in accordance with what is established by law. However, once an individual is registered, that person joins the population of Venezuelans who can be called upon to form part of the annual replacement quota set by the President of the Republic and the Strategic Operational Command of the National Bolivarian Armed Forces (CEOFANB).
The new law establishes among its purposes the immediate cooperation between the citizens and CEOFANB. According to Arts. 13, 22, 23 and 36, personal information may be requested, establishing that natural, legal, national or foreign persons as well as civil registries have an obligation to cooperate with and provide assistance to the president, governors, mayors and heads of military zones, setting aside service to the nation. This is combined with the creation of the concept of a ‘replacement quota’ as a contingent of civilians that can replace soldiers in combat.
Article 28 states that the organic code of military justice and other laws and regulations that are part of the special military jurisdiction shall be applied to people who are called to be replacements in the military. They will be assessed and given duties as military personnel, not as civilians.
Venezuelans by birth or naturalization who are of military service age are included in certain situations, including the following:
- Active duty
- On leave
- Reserve duty
The following situations are considered to be evasion of service:
- A natural person within the age range who does not register within the term established by law.
- A natural person within the age range who is registered but, once called, does not report to mandatory military or civilian service.
- A legal person who does not comply with registration within the period established by law.
Mandatory military registration can be avoided on several grounds without being considered evasion. These are:
- Having a certificate of temporary disability
- Having a certificate of permanent disability
- Marriage certificate or domestic partnership certificate
- Evidence of being the only provider in the family
- Remanded into custody with conviction
Article 71 establishes that persons, once registered and called to perform military service, may be considered unfit to perform military duties, but this matter is at the discretion of the evaluating public official.
Adding to these grounds, we have Art. 83, which states that university students may apply to provide civil service instead of military service, and Art. 89, which refers to extemporaneous withdrawals for medical and social reasons that must be determined.
Only temporary or permanent disabilities certified by the Venezuelan Social Security Institute (IVSS) may be considered grounds for not participating in military service. For this reason, legal persons who fall within the affirmative action quota of including 5% of people with disabilities on their payroll are required to register in the military.
Employment, positions or jobs: A worker can not be excused from participating in the fixed replacement quota. Moreover, Art. 33 states that an employer must allow his or her employees to participate in military activities as well as guarantee their jobs and salary. The law establishes that it is the responsibility of the employer to require his or her employees to be registered in the compulsory military register. Otherwise, they can be subject to fines by the public administration and penalised with administrative procedures like employment clearance.
Comprehensive Defence Registry (in Spanish, registro para la defensa integral or RDI): this is a public, permanent, free, automated and obligatory service aimed at registering natural and legal persons within the age range, as well as updating records.
Registration and updating information: natural and legal persons in the age range must register and update their information in the RDI through the military district or municipal or parochial registration office closest to their residence or municipality. The documentation required for registration or updating will be determined in the law’s regulations.
The sanctions that could be incurred for not registering as a natural person are:
- Non-registration of natural persons: 5 to 15 tax units (Art. 100), between 885 and 2655 Bs.
- Fine for natural persons for not updating their information: 5 to 10 tax units (Art. 102), between 885 and 1770 Bs.
- Failure of a natural person to serve once registered: 50 to 100 tax units (Art. 105), between 8,850 and 17,700 Bs.
- Offending civil servant: 300 to 500 tax units (Art. 108), between 53,100 and 88,500 Bs. in addition to the opening of an administrative procedure
There is no deprivation of liberty as a proposed sanction for natural persons in this law.
Registration of legal persons: legal persons must register and update their information within sixty days following the date of enrolment in their respective registry. Within the framework of co-responsibility, legal persons shall be categorised within the regulations provided by the law for the purposes of their participation in the security and comprehensive defence of the nation.
Duty of legal persons: to process the attainment of employment clearances required by applicable law, legal persons must present their registration certificate at the RDI.
Regarding the penalties that can be incurred for not registering as a legal person:
- Documentation requirement: public and private administration agencies or entities, owners of businesses subject to public or private law, representatives of cooperatives or community councils that do not require documentation certifying the registration or updating of information in the permanent registry or provision of military service prior to signing an employment contract will be sanctioned with a fine of between 30 and 40 tax units (Art. 99), between 5,310 and 7,080 Bs., without limiting other corresponding administrative sanctions.
- Legal person’s failure to update: legal persons who do not report a change in tax address, branch openings, company name modifications, change of economic activity or any other circumstance that can change their initial status in the RDI, will be sanctioned with a fine of between 50 and 100 tax units without limiting other corresponding administrative sanctions
- Legal person’s failure to register: legal persons who do not comply with registration in the RDI within the periods established by law will be sanctioned with a fine of between 50 and 150 tax units (Art. 101), between 8,850 and 26,550 Bs. without limiting other corresponding administrative sanctions.
It is important to emphasize that the fine opens the possibility of administrative sanctions that are not made clear in the law and are at the discretion of the sanctioning authority.
Asset-based penalties for engaging in refusal to register, failing to serve, refusing to update or any of the other grounds established in the law are minimal. However, the possibility of administrative sanctions, such as employment clearance for legal persons, among others, should be thoroughly evaluated.
Recidivism: legal persons who are repeat offenders in violating the rules for updating information in the RDI will be sanctioned with fines of between 150 and 250 tax units, which must be paid off within the first 30 consecutive days from the date of imposition of the sanction. The penalty will be between 250 and 350 tax units (Art. 104), from 44,250 to 61,950 Bs. without limiting other corresponding administrative sanctions.
The imposition of economic and administrative penalties for natural and legal persons who do not participate in the registry or who fail to comply with the provisions established, or who decide not to participate in the updating of information in the RDI, represents a means of coercion to all citizens, since they are required to register in a military registry to be able to exercise their civilian and employment capabilities.
Regarding conscientious objection and Human Rights
The major difference between the old law and the new one lies in the punitive character of the new registration law, where a person committing evasion is clearly defined as a natural person who does not register, does not appear when called to serve or does not update their information in the military register. Conscientious objection (CO) is thereby laid down as a constitutional precept in Arts. 61 and 134—in which alternative civil service is permitted—which are displaced by a lower ranking regulation.
This definition of the evader as a subject on the fringes of the law, whether he or she is a natural or legal person. He or she is sanctioned with fines and administrative penalties imposed by the State, meaning that the demilitarization and CO are paid for with assets.
LRADIN establishes an obligatory nature for enrolment in the military register for natural and legal persons, violating Arts. 20, 21, 52, 61, 87, 102 and 134 of the Constitution of the Bolivarian Republic of Venezuela (CRBV); Arts. 18 and 22 of the International Covenant on Civil and Political Rights; Arts. 18 and 20 of the Universal Declaration of Human Rights; and Art. 22 of the American Declaration of the Rights and Duties of Man.
Article 132 of the CRBV stipulates that promoting and defending human rights is a duty of all persons.
The Law establishes budgets contrary to the right to free development of personality in its Arts. 31.1 [sic], 38, 39, 41, 42 and 50 because it stipulates registering as a duty of natural persons.
Articles 31.1 [sic] and 35 establish a mandatory nature for registration, otherwise the individual in question would be considered ‘EVADING’, while Arts. 38, 39, 40, 41 and 42 allude to the duty of both legal and natural persons to register in the RDI and, if already registered, update their information.
It is important to examine Art. 50, which goes beyond the obligation to register in the RDI, indicating that the duty falls upon the educational authorities of public and private institutions, parents, guardians, legal representatives, teachers, tutors and employers who have under their responsibility the care, guidance and supervision of Venezuelans, by birth or naturalization and of legal age, to urge them to register, which is a legislative excess because the age of majority according to national legislation is 18 years, which is the age to register. Perhaps this provision will pave the way for the militarization of youth through proposals such as Guideline No. 001-16, which provides for the formation of the ‘brave Bolivarian soldier 2016’ thus opening the floodgates for the training and militarization of children and adolescents to perpetuate the status quo.
The legal system, through the CRBV, welcomes, recognizes and guarantees the right of all persons to the free development of their personality, which is by nature a subjective, private right with a non-pecuniary character that every human being possesses by the mere fact of being a person. That is to say, it possesses an internal character and process of reflection whereby the individual establishes the guidelines of behaviours to follow during his life, without any coercion, but of their own free will.
Therefore, within the faculties that derive from the free development of personality and freedom of conscience, both the natural and legal person can declare his conscientious objection, which is a right we possess to reject, refuse or not accept mandates that contradict our beliefs, ethical principles and values and are contrary to our conscience.
As a foundation, we can cite the contents of Art. 18 of the Universal Declaration of Human Rights, as well as Art. 18 of the International Covenant on Civil and Political Rights, of which the Venezuelan State has been a party since 1978, and Art. 12 of the American Convention [on Human Rights]. In addition, the United Nations Commission on Human Rights, in Resolution 1995/83 of 8 March 1995 recognized the right of everyone to invoke conscientious objection to compulsory military service as a legitimate exercise of the right to freedom of thought, conscience, and religion.
Therefore, every citizen has the right to oppose official orders that violate his or her beliefs or convictions. The CRBV allows for non-participation in military activities; therefore, the military registration that becomes mandatory with the enactment of this law, the object of analysis, is a violation of rights. Registration must be considered only for those who voluntarily wish join together with the armed forces or provide military service on an optional basis.
It is clear that the mandatory nature of registration causes the law to limit the right of both citizens and legal persons to object to being part of a military structure that is contrary to their conscience, conviction and religion.
The State, in accordance with Art. 2.2 of the International Covenant on Civil and Political Rights, is obliged to take the necessary measures to recognize the rights in said covenant. Since freedom of thought, conscience and religion is a right recognized by it, it is the duty of the Venezuelan State to constitutionally recognize the right to freedom of conscience, as well as to adopt legislative, administrative and judicial measures to protect and guarantee the full enjoyment of that right.
In the present case, the violation of the right to freedom of conscience is alleged, since the Law establishes measures that undermine the legitimate exercise of that right. The mandatory nature of the registration described in the Law and the established sanctions give it a coercive nature which makes it a violation of recognized human rights.
The right to equality before the law (Art. 21 of the CRBV).
LRADIN establishes budgets contrary to the right to equality before the law in Arts. 44, 45, 46 and 47 because they make hiring or contracting (Art. 44), granting a driver's licence (Art. 45) and attaining an academic degree (Art. 47) conditional on the presentation of the certificate of registration of the natural person in the RDI or proof that he/she performed military service in the case of having served. Additionally, for its part, Art. 47 conditions the granting of employment clearance to legal persons on their enrolment in the RDI.
This constitutes a setback with respect to the repealed law because, although it established the mandatory registration of natural persons, it did not constitute a prerequisite for administrative procedures such as obtaining a driver's licence or accessing to the right to be hired or contracted, thus demonstrating the State's malicious intent in giving importance or precedence to military conscription over any academic degree that a Venezuelan could obtain.
Article 21 of the CRBV establishes the constitutional principle of the right to equality, which guarantees that every person must be equal before the law, without distinction. The CRBV and the international human rights treaties signed and ratified by the Venezuelan State stipulate and recognize the principle of equality before the law. Thus, people can not be subject to any kind of discrimination, given the understanding that the law must enforce such equality and not violate this principle, and keeping in mind that the matter of international human rights law is fundamental.
In fact, Arts. 44, 45, 46 and 47 undermine the right to equality provided for in the Constitution, since they establish limitations for natural persons on access to work, obtaining a university degree and obtaining a driver's licence, and for legal persons on obtaining employment clearance, conditioning the granting of the same on appearance in the registry. Therefore, we can conclude that a situation of inequality is created between people who do not agree with the military and who, by virtue of their conscience, would not be willing to register or enlist to perform military service, with those who would be willing to provide military service and consequently comply with the law, meaning registration in the RDI.
Violation of the right to freedom of association (Art. 52 of the CRBV).
The LRADIN, in Arts. 31.3 [sic], 38, 40, 44, 46, 97, 99, 101, 103 and 104, violates the right to freedom of association provided for in Art. 52 of the CRBV by not respecting everyone's autonomy as referred to in the law, by subjecting to a compulsory register the possibility of hiring personnel or obtaining employment clearance, and by establishing pecuniary fines in the absence of compliance with the law.
The combination of the obligatory nature of the requirement of legal persons to register and update their information (LRADIN, Arts. 38 and 40) together with non-fulfilment of this obligation leads to a legal person being qualified as committing ‘EVASION’ (LRADIN, Art. 31.3 [sic]) and consequently being financially sanctioned (Arts. 97, 99, 101, 103 and 104 of the LRAM). In addition, it affects the possibility of contracting natural persons who have not registered in the RDI or presented evidence of having completed military service (LRADIN, Art. 44) by legal entities. It also limits the development of joint projects between legal persons and the State, subjecting their approval to enrolment in the RDI.
These provisions directly affect the right to freedom of association, a right referred to and recognized by Article 52 of the CRBV and international human rights treaties, specifically Art. 22 of the International Covenant on Civil and Political Rights, Art. 20 of the Universal Declaration of Human Rights and Art. 22 of the American Declaration of the Rights and Duties of Man.
The CRBV and international human rights treaties ratified by Venezuela recognize and preserve the right of natural persons to associate freely according to their interests, without any greater restrictions imposed by law, except those necessary for the development of a democratic society. Therefore, it is understood that legal measures that affect the right to association can not be adopted.
The LRADIN is a rule with very general language that leaves room for authorities to use arbitrariness or their discretion to act against the free exercise of the rights of associations since it conditions important aspects of an association or legal person, like structure and operation. On the one hand, it conditions its structure in the sense that it forces them to be participants in a military register that is contrary to the spirit and purpose of their goals. And on the other hand, it conditions their operations in that they are forced to demand that their workers, upon being hired, provide the certificate of enrolment in the RDI, and the granting of ‘employment clearance’ is dependent on the person’s registration in the RDI, thereby limiting access of associations with legal personality to the processing of other administrative actions that are of great relevance to their operation.
The compulsory registration of associations with legal status in the RDI as well as the conditions established in the law affecting civil society organizations are incompatible with international obligations in which the Venezuelan State has undertaken the responsibility to provide adequate, prioritized and effective protection for citizens in the defence of human rights, which, in accordance with the Constitution and international human rights treaties, constitutes a right in itself and a duty to be promoted and facilitated by the State. In the context of these responsibilities, a compulsory military registration not only constitutes an undue restriction that severely compromises the independence and autonomy of citizens and associations to exercise the defence of human rights, but it can be considered internationally a ‘direct attack on the defence of human rights’ because a hierarchical obedience to a military or state authority can prevent—or represent a clear interference and obstruction to—the possibility of protection and justice against acts of violation by officials.
Among the rights granted to human rights defenders in Art. 5, Section B of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms it is provided that defenders may form non-governmental associations. Therefore, the State has the duty to guarantee and respect said right, and under no circumstances should it impede the effective development thereof. Consequently, the Venezuelan State must take this consideration into account, given that the LRADIN is regarded as a threat to human rights activists and advocates in the country by requiring registration as a means of control, which, besides being of a military nature, does not specify its purpose.
The uncertainty in terms of the manner and reasons according to which the classification will be carried out can result in rights violations because no criteria are set regarding registration, and it has only been generically referred to a regulation that has not been created, thus violating the legal reserve that governs this matter.
This law represents a warning for associations with legal status of any kind, organizations in general and defenders of human rights because they jeopardize its operation and performance: if they refuse to register, as some have already expressed in their contempt of the enacted Law, the exercise of the right to associate and the protection of any legitimate interests they may have could be affected.
On the impairment of the right to work (Art. 87 of the CRBV).
Articles 44, 46 and 47 of the LRADIN are unconstitutional because they infringe on a person’s right to work. On the one hand, in Arts. 44 and 46 of the LRADIN require the employer to request the military registration before a person is hired or contracted. On the other hand, Art. 47 of the LRADIN limits the possibility of a professional attaining a position related to their goals, as they are not awarded an academic title, which is subject to enrolment in the RDI.
Article 87 of the CRBV alludes to the premise that the purpose of the State is to promote employment, given that the law, in Article 44, requires as an indispensable requirement ‘for inclusion in payroll or recruitment the certificate of registration in the RDI or proof of having completed military service’. Likewise, it asserts in Article 46 that ‘legal persons must present their certificate of registration to obtain labour claims’.
As can be seen, the LRADIN limits access to work because it establishes a prior condition limiting the provisions established in the ‘Decree with Status, Validity, and Force of the Organic Law for Employment and Male and Female Workers’ (in Spanish, Decreto con Rango, Valor y Fuerza de Ley Orgánica del Trabajo, los Trabajadores y las Trabajadoras).
On the violation of the right to education (Art. 102 of the CRBV).
Article 47 of the LRADIN establishes as a requirement for obtaining an academic degree the presentation of the certificate of registration in the RDI, thus violating the right to education.
It is the right of all students to be acknowledged for their effort and the completion of a stage in their educational careers through the issuance of a corresponding diploma. This right is fundamental whenever such a document is a legal requirement to continue studies in another establishment or move on to the next academic cycle, which means that its achievement is essential for the effectiveness of the right to educational access. It also acquires a fundamental nature when degree or diploma is required to accredit the suitability of a person to practice a certain profession.
Access to education, to any degree, should not be made conditional on legal requirements beyond what is necessary, much less should there be a requirement to complete a military process in order to carry out a civil one.
On priority being given to military service (Art. 134 of the CRBV).
The Constitution establishes, from Arts. 130 to 135, the different duties that fall on the population as a whole. Article 134, meanwhile, characterises the ways to fulfil these duties, which can be of civil or military nature. Likewise, it specifies the aims that guide both military and civilian service, which are the defence, preservation, and development of the country, or to deal with public emergency situations.
As regards the civil service, several areas of action are inferred from the constitutional rule. We see an example of this in Art. 130 of the LRADIN which establishes the duties of honouring the homeland, its symbols and its cultural values, and safeguarding and protecting nationality, self-determination and the interests of the nation. For its part, Article 132 establishes the duty to fulfil social responsibilities and participate jointly in the political, civic and community life of the country, and promoting and defending human rights as a basis for democratic coexistence and social peace.
Nevertheless, through the Law, the military option is prioritised over the civil one, in this case by making the registration of all Venezuelans within the age range mandatory.
In the LRADIN, civil service is subject to refusal to provide military service as is clear from Art. 76 of the aforementioned law where it states: ‘Venezuelans by birth or naturalization who do not perform military service must comply with the corresponding civil service’. Likewise, in Art. 83, in the case of Venezuelans by birth or naturalization who are studying at a university and express their desire not to enlist, they must comply with the nation’s comprehensive defence through civil service. Finally, Art. 105 of the law punishes those who have opted for military service and subsequently do not comply without justification once they have reached the age of thirty-one (31). In these cases, the penalty results in a fine of between fifty and one hundred tax units, and the person is mandated to comply with the civil service.
The LRADIN is therefore unconstitutional. It precludes the person from fulfilling his or her duty by voluntarily choosing between civil and military service, and establishes the mandatory nature of military registration.
The UN Commission on Human Rights, in its resolution 1998/77, has clearly established that the alternative service must be civil in nature, outside the military sphere.
It also strongly draws attention to the welfare blackmail the State commits regarding military registration, when Art. 66 guarantees medical care, dental care, permanence in social missions, clothing, food, housing and a minimum wage. This suggests that the strategic command of the armed forces seeks to interfere with social benefits for their convenience.
Article 52 establishes that persons who are in prison or going through judicial proceedings must be entered into the compulsory military register, which makes them prone to being part of the replacement quota.
However, in Section F of Article 57 concerning the grounds for not being eligible to perform military service and forming part of the fixed replacement quota are natural persons with a custodial sentence or criminal conviction as a final judgment.
Therefore, it can be deduced that persons with alternative measures to prison, first instance convictions or detentions without judicial proceedings, are subject to being registered in the compulsory military registry and therefore subject to serving in the military.
It should be noted that the goal of the 1999 constitutional assembly was to give people, in their interest and obligation, an opportunity to serve the country by choosing between mandatory military service or civil service, with the understanding that the provision of this service has the same value, but also as a recognition of personal vocation because some will feel motivated by vocation to serve the homeland via the military and others from their position as civilians and their conscience as citizens. In addition, the spirit of the constitutional assembly was to ensure that, along with vocation, a person could serve the country according to their abilities, skills, and tastes, understanding that any contribution adds to the economic, political and social development of the country.
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