VENEZUELA JUDICIAL UPDATE: CASES DISMISSED, NEW

C O N F I D E N T I A L CARACAS 003431

SIPDIS


NSC FOR CBARTON
USCINCSO ALSO FOR POLAD

E.O. 12958: DECL: 11/05/2014
TAGS: PHUM KJUS VE
SUBJECT: VENEZUELA JUDICIAL UPDATE: CASES DISMISSED, NEW
INVESTIGATIONS

REF: CARACAS 03219

Classified By: POLITICAL COUNSELOR ABELARDO A. ARIAS FOR REASONS 1.4 (d
)

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Summary
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1. (C) A Caracas Appeals Court overturned the conviction of
National Guard Gen. Carlos Alfonzo Martinez on November 1 on
grounds that the actions alleged by the prosecutor did not
constitute a crime under Venezuela's Penal Code. The same
court, citing similar grounds, dismissed the charges against
Baruta Mayor Henrique Capriles on October 18. Prosecutor
Danilo Anderson announced November 4 that he would open an
investigation of former Mayor of Greater Caracas Alfredo Pena
and the capital's two highest ranking police officials for
murder in relation to the events of April 11, 2002.
Prosecutors also began investigating corruption allegations
against Pena October 27. Anderson has opened investigations
against 28 persons, alleging civil rebellion in relation to
the Carmona decree issued on April 12, 2002. On November 1 a
military prosecutor suspended his investigation of the
journalist Patricia Poleo for releasing a video allegedly of
Cubans at a military base. End Summary.

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Capriles and Alfonzo Martinez Cases Thrown Out
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2. (U) The Second Appeals Court overturned the conviction
of Gen. Carlos Alfonzo Martinez for violating security zones
on November 1, on the grounds that the act allegedly
committed by the general -- giving a speech to opposition
demonstrators in front of National Guard headquarters -- is
protected by the constitution and international treaties
under freedom of speech. The same Court threw out charges
against Baruta Mayor Henrique Capriles on October 18, ruling
that the events which the prosecution alleged took place were
not criminal acts under the Penal Code. The Court released
Capriles from the restrictions he was under as conditions of
bail. In both cases the prosecution said it would appeal,
but no action has been taken. On November 3 Judicial
Inspectors visited the appeals court to investigate how the
Alfonzo Martinez decision was leaked to the press.


3. (C) Appeals Court Judge Jesus Ollarves, who wrote both
decisions, told PolOff October 23 that the prosecutions were
clearly political. He said they were brought forward by a
group of prosecutors who were willing to follow orders, with
no regard to the facts, or the law. Ollarves said he was
afraid the two cases had been assigned to his Court to
prepare the ground for an attempt to remove him from the
judiciary, though witnesses told him they saw no signs of
tampering in the assignment of the case. Ollarves is a
tenured judge, making it more difficult to remove him.
Ollarves has ruled against prosecutors in allegedly political
cases in the past, including the decision to free opposition
leader Carlos Melo, after he was arrested during the
disturbances in February-March of 2004 Ollarves told PolOff
that he received threats after the Melo decision, and took
several months vacation. In an e-mail communication on
November 5, Ollarves called the judicial inspection an
"intimidatory process."

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Anderson Goes After Pena
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4. (C) On November 4 Prosecutor Danilo Anderson told
reporters he had opened an investigation against Greater
Caracas Mayor Alfredo Pena, the Metropolitan Secretary for
Security Henry Vivas, and the Chief of the Metropolitan
Police, Lazaro Forero, as the intellectual authors of the
violence on April 11, 2002. Vivas was chief of the
Metropolitan Police at the time, and Forero his deputy. The
eight Metropolitan Police officers who have been in custody
for eleven months charged with the deaths that occurred in
April 2002 have begun to negotiate with Anderson, offering to
cooperate in the investigation. Prosecutors also opened an
investigation against Pena on October 27 for corruption,
after he withdrew from mayor's race. Pena is presently in
the U.S.


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While Continuing Carmona Investigation
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5. (U) Anderson has also opened investigations for civil
rebellion against 28 persons of the 400 he expects to
prosecute for their alleged participation in the proclamation
of the Carmona Decree (see reftel),and has announced his
intention to begin calling eight persons a day to be informed
of the investigation to speed up the process. Anderson told
reporters on November 4 that he did not intend to pursue an
investigation against reelected Zulia Gov. Manuel Rosales for
the moment, because it would require special permission from
the Supreme Court and the National Assembly.

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Poleo Investigation Closed
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6. (U) Military Prosecutor General Eladio Aponte Aponte
November 1 suspended the investigation of journalist Patricia
Poleo in relation to her release of a video purporting to
show Cubans in Venezuela's main military base, Fuerte Tiuna.
The action releases Poleo from court-imposed travel
restrictions.

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Comment
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7. (C) The 2nd Chamber of the Caracas Appeals Court is the
only Chamber left which is not dominated by allies of the
GOV. It is by no means certain that the government will not
continue to pursue them by appealing to the Supreme Court, at
least in the case of Gen. Alfonzo given his interest in
participating in politics now that he is free. With the case
against the NGO Sumate also in suspense, the Pena case and
the Carmona investigation, which aim to establish the
Chavista perspective on the April 2002 events and to fix
blame, appear to be the GOV's priority now.
Brownfield


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2004CARACA03431 - CONFIDENTIAL