RECENT HISTORY OF JUDICIAL REFORM IN VENEZUELA

C O N F I D E N T I A L CARACAS 003679 SIPDIS NSC FOR CBARTON USCINCSO ALSO FOR POLAD E.O. 12958: DECL: 05/25/2014 TAGS: PGOV PHUM KJUS VE SUBJECT: RECENT HISTORY OF JUDICIAL REFORM IN VENEZUELA REF: CARACAS 03677 Classified By: POLITICAL COUNSELOR ABELARDO A. ARIAS FOR REASONS 1.4 (d ) -------------- Summary -------------- ¶1. (C) Venezuela's judicial system, according to a variety of experts, suffers a number of structural flaws, including politicization of the courts and the shock waves of the switch to an adversarial court system. Judges, academics, and journalists concur that judicial reform has had mixed results, and that the problem is more complex, judicially and politically, than may appear. Several argued that the justice system is getting worse, not better, under the current Supreme Court leadership, and questioned the wisdom of supporting current reform proposals. This cable looks at the history of Venezuela's judicial reform and the evolution of the judicial system. Reftel examines the present state of the judicial system. End Summary. -------------- Pre-Chavez Justice -------------- ¶2. (C) Venezuelan judges, academics, and NGO's agree that incompetence, long delays and corruption marked Venezuela's judicial system prior to the election of President Hugo Chavez. Maria Gracia Morais, Director of the Center of Juridical Investigations at the Catholic University Andres Bello (UCAB),told PolOff October 12 that incompetence was very common, especially among judges in the criminal courts. Judicial delays meant that 80% of persons in prisons in 1998 were waiting for a final decision on their case, which could take up to eight years. The judicial system was administrative, written, and secret, with the judge responsible for investigating and judging cases. Morais said the closed nature of the system encouraged judicial corruption, since there was no effective watchdog. Most judges, she said, were politically identified with one of the main political parties, for whom judges did favors in return for the parties' help in becoming a judge. -------------- Judicial Council -------------- ¶3. (C) Prior to the 1999 Constitution, the justice system had two heads. One was the Supreme Court, which was the final court of appeal. The other was the Judicial Council, which had responsibility for administering the lower courts, and disciplining judges. The Council was independent of the Supreme Court, though the Court named three of its five members. Supreme Court Administrator Candido Perez told PolOff November 11 that there was no mechanism for the Court to exert control over the members of the Council once they were named. Morais said that the Council was highly politicized, as were the lower courts and the Supreme Court. She said the Council named judges based on quotas for the established political parties, rather than for their competence. ¶4. (C) According to Morais, the division of judicial power among political parties protected the parties from judicial oversight, or legal persecution, as judges had to face the possibility that their party might one day be out of power. Morais said this arrangement did not protect those parties or groups that were not part of the political system, especially left wing groups. She argued that for this reason, many supporters of Chavez do not feel any need to hide the political motive of their decisions today, having experienced politicized and repressive justice in the past. ¶5. (C) Professor Ligia Bolivar, Director of the Human Rights Center at the UCAB, told PolOff October 28 that in 1989 25% of judges were tenured, while 75% were provisional. This meant that 75% of judges could be fired after a an investigation by judicial inspectors, and a decision by the Council, rendering them more susceptible to political pressure. Bolivar argued that the Council had taken steps to correct this situation by instituting exams to tenure judges. She claimed that this process brought the number of tenured judges up to 70% by 1996-7. Appeals Court Judge Jesus Ollarves, and the former head of the Executive Directorate of the Magistrature (DEM) Ricardo Jimenez, however, told PolOff they believe there had never been a significant number of tenured judges in the past. -------------- 1st World Bank Loan -------------- ¶6. (C) In 1992 the Council undertook a Judicial Reform Plan with the World Bank. According to Bolivar, the World Bank pushed the plan, but it never had strong support within the Venezuelan judiciary or the GOV. The project promised $30 million from the World Bank, to be matched by $30 million from the GOV. A 1996 report by human rights groups criticized it as an attempt by then President Carlos Andres Perez to force judicial reform through despite opposition from the legislature. According to Candido Perez, who was responsible for implementing the project, the aim was to improve the organization of the Judicial Council and the courts, to make them more transparent and efficient. Bolivar, who was an advisor to the program until 1999, said the reform was isolated from the rest of the justice system. ¶7. (C) Perez said the project began in 1994, but was practically suspended from 1997 to 2000, as the Judicial Council suffered a crisis which ended when it was replaced by the Executive Directorate of the Magistrature (DEM) in August ¶2000. At that point, $10 million remained from the original loan, and the DEM reactivated the project with an extension from the World Bank. According to Perez and Jimenez, the project, based on the computer program Juris 2000, has allowed centralization of judicial support teams, leading to increased efficiency, uniform practices, and reduced corruption, by rotating judicial assistants. Several new regional court buildings have also been constructed, and many computers purchased. According to Perez, many of the reforms begun with the World Bank funds have been continued with GOV funds, including the spreading of the Juris 2000 system, and the upgrading of facilities throughout the country. The World Bank also funded a similar, though much smaller, reform project at the Supreme Court, from 1997 to 2000. This project reorganized the court, and greatly increased its technological capability, according to Perez and Jimenez. -------------- 1999 Constitution -------------- ¶8. (U) The December 1999 constitution changed the organization of Venezuela's judiciary, creating a single organizational structure, under a new Supreme Tribunal (TSJ). The TSJ is organized into six Chambers; Constitutional, Penal, Civil, Social, Electoral, and Administrative. Under the new constitution, the Constitutional Chamber's interpretation of the constitution has the force of law. The constitution puts the organization responsible for administering the lower courts, the DEM, directly under the control of the TSJ. The judges' disciplinary courts, which have not yet been created, are also under the authority of the TSJ. The constitution also guarantees the judiciary at least 2 percent of the national budget, to be administered by the TSJ, giving it budgetary independence and greatly increased resources. ¶9. (C) Metropolitan University law faulty dean Rodrigo Perez Perdomo told PolOff that the new judicial organization overburdened, and over empowered the TSJ. It has led to the creation of a powerful Judicial Committee, consisting of the vice-presidents of each Chamber and the President of the Plenary Chamber. This Committee supervises the DEM and disciplines judges. According to the constitution, judges are to be trained in a judicial school and tenured after an exam to guarantee their independence, but the TSJ suspended the exams in March 2003 because they were expensive. -------------- Judicial Emergency -------------- ¶10. (C) In August 1999 the Constituent Assembly declared a judicial emergency, and named a Committee to purge corrupt judges. Later that year, the Committee became the Commission on the Functioning and Restructuring of the Judicial System, and under that name it continues to function today, under the authority of the TSJ. Perez Perdomo asserted that 400 tenured judges were fired or forced to resign by the Committee. Elio Gomez Grillo, a member of the committee, said the number of fired judges was 184, with 33 suspended judges by the end of 2001, according to the TSJ Journal. About 200 judges passed exams to be tenured following the purge, before the program was suspended. Bolivar, who quit as an advisor to the modernization process because of the purge, said the Committee reversed the work the Judicial Council had done to increase the number of tenured judges. -------------- COPP Reform -------------- ¶11. (U) In July 1998 the Venezuelan legislature passed a new Penal Procedures Code (COPP),which changed the Venezuelan legal system from an administrative law system to an adversarial system. The COPP came into effect in 1999, after a year to adjust the judicial system. Bolivar asserts the COPP had very little support within the GOV or within the judicial system. The reform introduced the presumption of innocence, forced prosecutors to take suspects before a judge within 24 hours, made pre-trial detention the exception, and called for jury trials in serious cases. Rules against having prisoners in jail for more than two years without trial led to the release of over 10,000 inmates. ¶12. (C) Public reaction to the prisoner release and the perception that the COPP was giving more weight to the rights of the suspect than to the victim led to a reform of the COPP in 2001. The reform eliminated jury trials, made pre-trial detention easier in more serious cases, and lowered the requirements for police to claim to have caught suspects in the act, among other changes. Carlos Ponce, of the judicial NGO Consortium Development and Justice, told PolOff November 8 that the reform "gutted" the COPP, making it much easier for the police and prosecutors to continue to work in their traditional, and secretive way. ¶13. (C) Vicente Mujica, law school professor at the Central University, and an alternate Appeals Court judge, told PolOff November 5 that the Attorney General's Office so opposed the COPP that it did nothing to prepare prosecutors for their new, greatly expanded responsibilities. Carmen Aguindigue, formerly the number three in the A/G's office told PolOff November 4 that the A/G's office had not yet undergone the kind of reorganization that was taking place in the courts, and could not monitor the treatment prosecutors were giving cases, or ensure adequate investigations. Prosecutor Ali Marquina (protect) told PolOff August 30 that each prosecutor has a nominal case load of 8,500. ¶14. (C) The COPP also changed the role of the police in the judicial system. Aguindigue told PolOff that under the administrative law system, only the Technical and Judicial Police had responsibility for obtaining evidence for the judge. Now know as the Cientific and Penal Criminal Investigation Corps, it and the state and municipal police now have responsibility for guarding the crime scene and obtaining evidence. These are responsibilities for which the police forces are totally unprepared, according to Aguindigue. She said this increases impunity as many cases cannot be won in the courts because neither the police nor the prosecutors are capable of completing or supervising a competent investigation. Jimenez also complained that the police do not understand their responsibilities under the COPP. Brownfield NNNN 2004CARACA03679 - CONFIDENTIAL