Appendix E
Provea and the Case of El Hornito

El Hornito is a 200-year-old, small town on the western coast of Venezuela. It had a population of 1,500 families, though this figure has changed throughout the ensuing story. The town is on a lake, and has supported itself through farming and fishing. Many of the town's crops are fruit trees of various sorts.

The national oil company built a petro-chemical plant approximately 500 meters outside of the town. The proximity of the plant has been very problematic. There have been explosions which have spewed petro-chemicals into the air and caused damage within the town. Families have complained of a rise in birth defects and other health problems as well as a decrease in the fruit production of their crops since the plant was built.

People said that they were willing to leave the town, but they wanted compensation from the oil company. The company needed to acknowledge that the plant had caused harm to the community. Provea began to work with El Hornito in 1990.

Provea found quickly that there was also an environmental aspect to the case. There were problems with contamination of the soil, and a decrease in the number of fish in the lake. One of the products of the petrochemical plant is fertilizer. Through emissions and explosions, fertilizer components have been released into the atmosphere. One result has been that the trees are beautiful and green, but don't produce much fruit.

The case

Although Provea initially thought that the case would be argued within a right to health framework, they quickly realized that the case would be stronger if they used the environmental approach, since there is criminal environmental law in Venezuela. They decided to build the health argument into the environmental case.

The question of linking the community health and environmental problems to the location and practices of the petrochemical plant has proved challenging. In the past, the oil companies had commissioned environmental and health studies in the area. The results of the studies had always been positive. It was also the case that the studies were conducted through universities where the research money was coming from the companies. The results of these studies had been inconclusive in regard to birth defects, for instance, posing the question of whether the high incidence of birth defects was actually due to intermarrying.

The judge who presides over the case is very open to and interested in human rights. However, because the oil company considers that his approach to the case is not favorable to it, he is very vulnerable. The oil company generally has a good image in the country, as investing in community and environmental projects as well as supporting social programs. They put considerable resources into upholding their image, and the combination of the company's power and the generally positive public opinion makes the judge's position tenuous.

The lawyer from the Attorney General's office who initially investigated the case had a good environmental record and was a former National Guardsman with a self-image as being incorruptible (i.e. not willing to bend to any pressure which might come from the oil company). He subsequently (after the opening of the case) was assigned to the Ministry of Environment; the area he supervises includes El Hornito. He also has been assigned as a consultant to the Environmental Committee of the Senate.

During the period that the case was being filed (1993/94), there was an explosion at the plant. As a result of the explosion, a huge, thick cloud hung over the town, making it impossible to see the sun. This persuaded the judge to initiate the criminal case.

Because the judge had to prove the case worthy, he requested a number of tests on the health and environmental impact of the plant. However, due to conflicting results and the biased nature of the researchers, Provea requested that the judge appoint an independent team to conduct a comprehensive test. The judge started to work with the Center for Justice and International Law (CEJIL) at this point; CEJIL asked Physicians for Human Rights to send a mission of experts. In 1995 the official team of experts undertook a 2-3 week study of the area.

Subsequently, there was another explosion, following which the judge issued arrest warrants for two top managers of the plant. While they have been out on bail, they have had to ask the judge for permission to travel, which they need to do for work. This has put some pressure on the company.

Relocation of the community

While the case has been pending, the President of Venezuela decided to invoke a national security regulation which has resulted in the relocation of the town. The oil industry is by law a "strategic industry". The National Security laws state that there is a security belt around all strategic industries, and no one is allowed to live within the security belt. Since El Hornito is so close to the plant, the President was able to lawfully issue an expropriation decree forcing the town and its people to move to an alternative site.

The oil company had to come up with compensation. It commissioned architects to design a new town. The houses themselves are very pretty, but there are many problems with the design and layout of the town. These difficulties have added a "right to housing" component to the case, as the homes and village were not suited to the culture of the town. Some of the problems were:

• In the new town, different sized houses were constructed to accommodate different sized families. While this in itself is not problematic, the small and large houses are segregated; in the old town, they were intermingled so that extended families could live together. This layout of the new town has meant the neighborhoods of the old community were divided and destroyed. It has also meant that the new town has a segregated class feel to it.
  
  
• In laying out the new town, the oil company left a large, undeveloped corridor in the middle. This land was designated as prime real estate by the companies and has been reserved for future development by the land owners. The reservation of this corridor has created another physical separation in the community, making it more difficult for families to visit or for people to get to services that were previously near their homes.
  
  
• In the old town, people grew subsistence crops in their back yards. It was a traditional practice. In the new town, the houses do not have back yards. This means that people have to have their gardens in the front of the house, which is a complete cultural break.

Even though the town had no choice but to move, the town's people insist that the oil company must recognize the damage that it has wreaked on their health and the environment.

They are also seeking compensation for the loss in productivity of their crops due to the displacement. Fruit trees take about 5-10 years from the time they are planted until they bear fruit.

International Pressure

With the cooperation of COHRE/HIC, Provea submitted a complaint to the Sub-Commission for the Prevention of Discrimination and Protection of Minorities. Prior to this, Provea had been requesting interviews with the President, relevant government ministries and the oil company. The requests had always been ignored or, if a meeting was granted, it was with a very junior official. Following the submission, Provea was informed that the Minister of Mining wanted to have a meeting. When the Provea delegation arrived, they found the Minister of Mining, three of his most important directors, the President of Petr �leos de Venezuela (the umbrella agency of the Venezuelan oil companies) and one of his directors. All seven officials at the meeting were top-ranking. Provea and representatives of El Hornito were shocked.

The President of Petr�leos de Venezuela rather early into the meeting said, "Why did you have to take this case outside of the country?" This question made it clear that the international exposure created by the UN Submission was embarrassing to the oil company. Provea's response was that they had been trying for four years to have a dialogue. They explained that the town's people were worried that now that they were being moved, the damages done to them would not be acknowledged. Furthermore, Provea explained that the oil company has the power and ability to buy full-page ads in the press (local, regional, national) to help create public opinion. (In fact, people in other parts of the country didn't understand why the people of El Hornito were complaining, given the beautiful new homes they were given.) Provea insisted that they would continue to use international remedies and pressure unless the company ceased its media campaign and talked seriously with the town complainants.

Negotiations

A special negotiator has been appointed to oversee the movement of the town. Provea's principle is that the oil company has to exchange house for house. In addition, it needs to compensate the town's people for the time it will take for the fruit trees to take hold and produce. This compensation should be both money for new trees and short-term production projects in the interim. The question of the crops has been very difficult to negotiate. The oil company requested a cost evaluation. It was done by the Mayor of the town. The oil company didn't like the estimate and so asked for a second evaluation. The second evaluation was higher than the first.

A complicating factor is that the oil company started individual negotiations with residents. As soon as someone moved out of the old town, the company had the house destroyed so in most cases the house-for-house comparison is impossible. To help deal with this problem, Provea asked people to take pictures of their homes.

By December 22, 1995, the entire town was moved. The last thing to be moved was the statue of the town saint. The residents of El Hornito held a beautiful procession from the old town to the new, carrying the saint and stopping at small towns in between. The entire procession took seven hours.

Status of the case, end of February '97

The people are in the new town and the oil company is beginning to compensate the town's people. However, the company still won't acknowledge its contribution to the health problems of the villagers and the results from the Physicians for Human Rights (PHR) team of experts have still not been evaluated. (PHR has submitted the results, but before the court will consider them, they must be translated into Spanish by an official translator, which has not yet been done). The judge has ordered some precautionary measures until such time as the results are evaluated by the court, including:

• resettlement of the town as soon as possible to avoid further damages (from explosions, for example);
• prohibition on the sale of the land reserved in the center of the town;
• prohibition on the sale of any homes;
• the oil company must publish in all the local papers any results of health assessments that are conducted. (This order links the right to health with the right to know.)

The company appealed three of the measures, but the judge declined the appeals. It also has asked for extensions of deadlines to run health assessments, and thus to publish any data. The judge had no grounds to deny these requests.

The judicial review of the right to health argument cannot take place until the results of the PHR study are translated and the case further examined in light of their evidence. Provea has presented the Committee on Economic, Social and Cultural Rights' reporting guidelines and reports from the Special Rapporteur on the Right to Housing to the judge, which he has welcomed and used in the case.

A street in the new El Hornito has been named "Provea".