At the time of writing this article, it is unclear if the Environmental Criminal Bill (the "Bill") had been published in the Venezuelan Official Gazette. However, everyone should know some of its implications and impact on human rights.

Foremost, it is a superfluous initiative. A Criminal Law of the Environment has been in force since 1992. It has been regarded by the best experts as an excellent legal instrument. It is clear, very well written, with proportionate penalties and legal safeguards against error, arbitrariness and abuse. However, it has seldom been used to repress in the event of flagrant environmental damages. I wonder if the legislature made a serious and objective assessment of the reasons for its apparent ineffectiveness.

Human rights are integrated, indivisible, interdependent and inviolable legal rights inherent to human beings as a whole. They have been recognized by the doctrine and legal instruments such as the Universal Declaration of Human Rights and UN treaties, conventions and International Covenants, as transcendent, transgenerational and essential values of humanity.

Article 19 of the 1999 Constitution puts it categorical and forcefully: "The State shall guarantee every person, in accordance with the progressive principle without discrimination, the inalienable, indivisible and interdependent enjoyment and exercise of human rights. Respect for and assurances thereof are binding upon public bodies in accordance with the Constitution, human rights treaties signed and ratified by the Republic and enforcing laws." No comment.

The novelty of the legal instruments on human rights, more and more complete and detailed, misleads many people in calling them and trying to advocate them. A widespread mistake is the belief that some human rights are more important than others are. In fact, all of them have the same weight and value: they are equal and, as such, should be treated, construed, observed, ensured and fulfilled. This was envisaged in the 1993 Vienna Declaration and Programme of Action.

An obvious example of the error is to believe that any human right is superior to another. This can be seen in the Bill that establishes objective criminal liability of natural persons and legal entities. In this bill, objective liability supersedes the substance of the Criminal Law on the subjective liability, that is, one that depends on the intention (mens rea) or not of the accused of a crime. Thus, whether the defendant is guilty or not does not matter. Confirming that there was a violation of any environmental administrative standard suffices to convict him/her.

Here is why: the former Article 182 of the abrogated Code of the Criminal Procedure stated that two signs were enough to order the arrest of the "suspect." Under the Bill, a mere demonstration of the "violation of a rule" suffices to sentence the defendant up to 10 years in any of the inhumane prisons in the country or, in case of legal entities, to enact their "dissolution," i.e. the civil death penalty.

Objective liability under the Bill violates constitutional, fundamental and human rights on presumption of innocence, due process, equality before the law, categorization of crimes, non-transcendence of penalties, adversarial principle and fair trial, to which everybody are equally entrusted. All of them form part of civil rights. Environmental rights have the same value as civil rights, both are universal, indivisible, interdependent, transgenerational, progressive and inviolable.

The International Law of Human Rights binds States to implement each legal instrument the best way possible. This requires a constitutional reform, which was made in 1999, in which Venezuela was updated in an exemplary manner. However, criminal law is still lagging behind. The worst thing is violating human rights in the false belief of ensuring them.

fernando.fernandez@bakermckenzie.com