The rule of law

DO VENEZUELAN COURTS RESPECT CONSTITUTIONAL LAW PRINCIPLES?

Principle of Impartiality

1. In January 2005, on the occasion of the inauguration into office of the new Justices of the Supreme Court, its new President, Omar Mora, confessed his political inclination towards the "revolutionary process", announced the removal of "coup-plotting" magistrates and judges and stated his position in favor of reverting the August 14, 2002, sentence of the Supreme Court absolving four military officers accused of rebellion for participating in the events of April 2002. Among the new judges are some members of the government's party, Congressmen on the government's party ticket and even a former President of the National Electoral Council, Francisco Carrasquero.

Principle of Res-Judicata

2. On March 11, 2005, the Constitutional Chamber, in session with only seven members, including two alternate judges, announced that the final sentence issued by the Supreme Court, acting in Plenary Session, on August 14, 2002, had been annulled by unanimity. Such sentence ruled that there were no grounds to prosecute for military rebellion Generals Efráin Vásquez and Pedro Pereira, Vice Admiral Héctor Ramírez and Rear Admiral Daniel Comisso. The annulment of this sentence not only violates the principle of res-judicata, it so does on the basis of mere formalities and issues of procedure without addressing the substance of the matter.

3. This precedent opens allows for new trials against those same officers, just as it opens the possibility to revise for political reasons and not on legal grounds, any Supreme Court decision that may in the past have favored any individual. As a matter of fact, the Prosecutors' Office has already initiated proceedings of the kind. la Fiscalía general de la Republica anunció que solicitará su extradición y los llevara a juicio .

4. On February 9, 2005 , the Tenth Chamber of the Caracas Circuit Court of Appeals overruled its own sentence of February 1 by which it suspended the prohibition to leave the country to 27 individuals accused of signing the Pedro Carmona-Estanga decree, extant since December 2004

5. By Sentence N° 24 of March 15, 2004, the Electoral Chamber of the Supreme Court admitted that the change of regulations introduced in order to declare invalid the signatures gathered in a petition for a referendum to recall the presidential mandate constituted a violation of the non retroactivity principle. Nevertheless, even though the afore-mentioned sentence was final in nature, the National Electoral Council chose not to abide by it, thereby fostering a squabble among the Chambers of the Supreme Tribunal. The Constitutional Chamber's position eventually prevailed and on March 23, 2004 , the Supreme Court declared null and void Sentence N° 24. It equally asserted the right of the National Electoral Council to regulate procedures in elections and referenda, and instructed the Electoral Chamber to abstain from issuing any annulment or safeguard measure, or adopting any decision whatsoever in relation to electoral processes. The contention between Chambers of the Court, which had given way to a restructuring of the Supreme Court, was thus put to rest. ( For further information on this see Is the Judiciary Career Respected?)

Principles of Competent Judge and Due Process

6. Retired Army General Ovidio Poggioli, former head of Military Intelligence and other officers, among them Army Lieutenant Rafael Farías-Villasmil and National Guard Colonel Jesús Farías-Rodríguez, are being trialed by the Second Military Control Court for the crime of rebellion, for their alleged involvement in "the paramilitaries case" (in May 2004, a group of more than one hundred individuals, a majority of which of Colombian nationality, were arrested under the accusation of plotting to depose and assassinate the President).

7. As a retired officer, General Ovidio Poggioli appealed the military court's detention order issued against him, contesting its competency and upholding his right as a civilian to be trialed by a competent judge. However, the Constitutional Chamber of the Supreme Court denied the writ introduced by General Poggioli's defense council against the September 30, 2004, decision by the Second Military Control Court . The trial is currently underway and the Military Prosecutors Office is asking for a 27 years jail sentence.

8. Retired Colonel Miguel Prieto-Morales, National Guard, is facing a similar situation. He has been accused by the Military Prosecutor's Office of military rebellion for his alleged links with the operation by which more than 140 Colombian paramilitary entered Venezuelan territory.

Principles of Due Process and Right to Defense

9. A majority of those individuals brought to trial by the Prosecutor's Office in several Venezuelan courts have denounced the following violations to their right to due process: absence of information regarding the charges brought against them, denial of access to their files, misrepresentation of legal proceedings such as been called upon to declare as witnesses only to be then indicted, being trialed while in detention even though the Constitution guarantees the right to be trialed in freedom, prohibitions to leave the country issued against them for reasons of a private nature, etc. This has caused great concern among several human rights organizations in Venezuela .

10. Among the most notorious cases is the one pertaining to the present Mayor of Baruta, Henrique Capriles, arrested on May 11, 2004. Notwithstanding the provisions of the law, and the fact that a tribunal had ordered that he should be trialed while in liberty, Henrique Capriles, was imprisoned during several months while his case was decided.

11. Retired General Carlos Alfonso Martínez was arrested on December 30, 2002. General Martínez had declared himself in opposition to the President of the Republic following the April 11, 2002, events during which 19 individuals lost their life. On October 22, 2002 , he and other military officers, gathered at the Altamira Square in Caracas , declared themselves in a state of rebellion, and on December 30, 2002 , took part in a gathering in front of the National Guard Command Headquarters, located in El Paraiso neighborhood in Caracas . General Martínez was arrested and detained for several months within military compounds without ever being charged. This was a grave violation of the rights to personal freedom and to due process in matters of a penal nature, having been subjected to a prolonged arbitrary detention as well as to a denial of his right to a grounds of claim hearing, a procedure guaranteed by the Constitution to, among others, high-ranking military officers, in cases of a penal nature.

12. Another emblematic case of due process violations is that of Attorney Tulio Álvarez, who was acting as legal council of a group of retired employees of the National Assembly. The latter had initiated legal proceedings against William Lara, former President of the National Assembly and a member of the government's party Fifth-Republic Movement (MVR). Congressman Lara accused Mr. Álvarez of defamation because he had made available to the press a non reserved report drafted by the Assembly's own Comptroller's Office which detailed all the irregularities committed under Mr. Lara's chairmanship. Tulio Álvarez's right to leave the country was suspended, notwithstanding the fact that such a precautionary measure is restricted to cases of crimes against the public interest and does not apply in cases of a private nature. The following are some of the irregularities committed in this case: one of Mr. Álvarez's clients, accused of defamation, was arrested while rendering testimony in court, none of the witnesses brought forth by the defense was allowed to give testimony, they were not allowed, either, to substantiate their case, and even though the judge was formally objected to, he ignored the objection and ruled on it himself. Finally, before all of Mr. Alvárez's witnesses had had a chance to give testimony, a provisional verdict was issued by which he was sentenced to over two years of imprisonment. Mr. Alvarez is also being arraigned for other alleged charges.

13. Equally significant is the case of the Civil Association SÚMATE, whose leadership is accused of "conspiracy" by the Government for having accepted financial support from the National Endowment for Democracy for a citizens' education program. After several months of citations, during which judicial principles and procedures were violated, the Judge, Norma Sandoval, admitted as valid the arguments put forth by the Public Prosecutor's Office and ruled that the members of SÚMATE's Board of Directors be charged with and brought to trial for "conspiracy to destroy the Republican form of government the Nation has chosen for itself". The SÚMATE case has been followed with attention by the international community which made its opinion heard when the decision to bring to trial its Directors became public. Such decision was rejected , by, among others, the U.S. State Department and the NGO, Human Rights Watch. The Venezuelan Government and the Office of the Public Prosecutor were quick to condemn such solidarity and support for SÚMATE.

Principle of Non Retroactivity and Transfer of the Burden of Proof

14. The enactment of retroactive regulations, in violation of the principle of non retroactivity, was exemplified by the case of the collection of signatures to request a Presidential Recall Referendum. The National Electoral Council, in its "Rules to regulate processes to revoke the mandate of elected officials", established the rules and procedures to be followed for the collection of signatures and for these to be considered valid, as well as a number of other regulations in relation to the process as such. Nevertheless, once the signatures were collected and formally presented to the Council, the latter pretended, by way of a Resolution dated March 2, 2004, to annul 876.017 signatures. This Resolution challenged the results of the process and introduced changes to the original rules and regulations.

15. This case made evident how the good faith of those who had signed was put in doubt by a transfer of the burden of proof. All those who had signed the petition were forced to take part in a procedure to confirm or validate their signatures. This prompted the OAS and the Carter Center to issue a joint communiqué , objecting the CNE's interpretation regarding the validity of the signatures. By Sentence N° 24, dated March 15, 2004, the Electoral Chamber of the Supreme Court admitted that the changes introduced in the applicable rules and regulations in order to declare invalid the collected signatures were in violation of the principle of non retroactivity enshrined in Articles 69 and 70 of the Constitution. Finally, the Court ordered that the signatures be accepted.

16. Nevertheless, and even though this was a final sentence issued by the Supreme Court of Justice, the National Electoral Council decided to ignore it, unleashing a squabble between the Supreme Court's Chambers. Finally, on March 23, 2005 , the Constitutional Chamber of the Supreme Court annulled Sentence No. 24 issued on March 15, 2004 by the Acting Electoral Chamber, ratified the CNE's right to establish rules to regulate electoral and referenda processes and ordered the Electoral Chamber to abstain from adopting any annulment or relief measure or any decision regarding electoral processes. Thus ended a squabble that had led to a restructuring of the Supreme Court of Justice.