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
)

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Summary
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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.

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Pre-Chavez Justice
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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.

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Judicial Council
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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.

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1st World Bank Loan
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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.

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1999 Constitution
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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.

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Judicial Emergency
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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.

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COPP Reform
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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


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2004CARACA03679 - CONFIDENTIAL