1. (U) Attorney General Isaias Rodriguez asked Venezuela's
Supreme Court (TSJ) December 2 to overturn its decision which
freed four alleged military leaders of the April 2002 events
and rejected his request to try the officers for military
rebellion. The case is important because it established the
"power vacuum" doctrine to explain the April events, against
the Chavez administration's argument that there was a coup.
The A/G argues that the Constitutional Chamber should review
the decision to correct several "gross errors" committed by
the Court. TSJ President Ivan Rincon promised the Chamber
would accept such a case in a November 25 interview, leading
to speculation about a concerted GOV strategy. Critics have
called the request a threat to the rule of law, which
undermines the basic legal precept of double jeopardy, and
the latest example of the "judicialization" of politics. End
Summary



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A/G Asks TSJ to Overturn Itself


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2. (U) Attorney General Isaias Rodriguez filed a motion
with the Constitutional Chamber of the Supreme Court December
2, asking it to review the August 14, 2002 TSJ decision not
to allow two generals and two admirals to be tried for
military rebellion in relation to the events of April 2002.
(Note: The TSJ in plenary session is responsible for
authorizing prosecutions of high ranking government and
military officials.) The officers were Gen. Efrain Vesquez
Velasco, Gen. Pedro Pereira, Adm. Hector Ramirez Perez, and
Adm. Daniel Comisso Urdaneta. Rodriguez argues that
Venezuela's constitution gives the Constitutional Chamber the
right to review the constitutional decisions of all other
courts, including those taken by the Supreme Court in plenary
session. Franklin Arrieche, author of the decision, and Vice
President of the Supreme Court until his removal by the
National Assembly on June 15, told reporters December 3 that
the Plenary's decision was penal in nature, and thus not
subject to the Constitutional Chamber's constitutional review
powers.



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Plenary Chamber Ruled "No Coup"


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3. (U) Rodriguez himself sought to charge the four officers
in 2002 with military rebellion. On August 14 of that year,
the TSJ refused, arguing: 1) That the specific charge brought
before the court had no penalty in the Military Penal Code;
2) That the facts of April 11 did not back up a charge of
military rebellion, because the officers did not lead armed
troops against the government, but rather refused orders to
lead armed troops against the people; 3) That the officers
acted in good faith believing President Chavez had resigned,
as Gen. Lucas Rincon had declared publicly. The vote was 11
to 9, with two alternate justices, who split their votes,
replacing two hard line Chavista justices. This decision
established the "power vacuum" doctrine to explain what
happened i April 2002, as opposed to the "coup" theory
pused by Rodriguez and other Chavista officials.



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Gross Errors


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4. (U) Rodriguez asserts the points on which the TSJ based
its decision are "gross errors" which the Constitutional
Chamber should review. According to Rodriguez, the Court
should suggested applying another article of the Military
Penal Code to punish rebellion, if the one the prosecutor
cited had no penalty. Arrieche dismissed this argument in
comments to reporters, pointing out it is improper for judges
to do so under an adversarial legal system. The A/G further
argued that it was improper for the Court to examine the
details of the case, as in whether troops were used, to
decide if the case had merit. Rodriguez also attacked the


"Rincon argument", saying Gen. Rincon's announcement did not
absolve all actors of responsibility, especially those who
were with Chavez and knew he had not resigned. Finally,
Rodriguez questioned the basis under which alternates joined
the plenary to tip the balance towards a negative vote.
Rodriguez suggested that if the Constitutional Chamber agreed
with him, the Moral Council (A/G, Controller General, and
Ombudsman) would consider suspending the judges who were
responsible for the errors, and calling on the National
Assembly to remove them. This could effect six sitting
justices.



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Rincon Offers Review


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5. (U) Supreme Court Chief Justice Ivan Rincon seemed to
invite Rodriguez' motion in an interview on VTV November 25.
In the interview, Rincon suggested that he knew Rodriguez was
planning the motion, and said if he presented it, the
Constitutional Chamber would accept the case. Rincon said
that the TSJ decision had created a sensation of impunity in
the country, and may therefor have contributed to the death
of prosecutor Danilo Anderson. He mentioned various times the
fact that the Court had two alternates sitting on it when it
made its decision. (Note: This may be the basis on which the
Constitutional Chamber overrules the decision.)



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Double Jeopardy


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6. (U) Alberto Arteaga, former dean of legal studies at the
UCV and frequent commentator on penal issues, called the
case a grave precedent, in a newspaper interview on December


5. The Constitutional Chamber's authority to review cases for
constitutional reasons is unquestionable, according to
Arteaga. What Rodriguez is challenging, however, is a penal
decision, from the highest court, in favor of the accused.
To overturn the case, and allow a trial to go forward, would
constitute double jeopardy, and undermine the entire
judicial system, according to Arteaga. Penal Chamber Justice
Blanca Rosa Marmol de Leon called the A/G's request very
dangerous, as it would add judicial uncertainty to all the
cases that might be subject to this new level of judicial
review. She also rejected that the decision denied that there
was a coup, saying the decision ruled only on the existence
or not of the crime of military rebellion.



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Justice or Politics?


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7. (U) National Assembly Deputy Nicolas Maduro (Movimiento
Quinto Republica) December 2 said the move was long overdue,
and a fitting tribute to assassinated prosecutor Danilo
Anderson. He called for a trial which would reveal the role
in the April 11 events of economic, political and military
factors, as well as the role of the USG, El Salvador, Spain,
and Colombia. Deputy Carlos Talbante (Movimiento Al
Socialismo) called it a decision which would accentuate
retaliation and vengeance. Deputy Pastor Heydra (Accion
Democratica) said the decision revealed the totalitarian,
authoritarian, and autocratic nature of the regime.



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Who is Left to Decide?


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8. (U) The Constitutional Chamber assigned Justice Carmen
Zuleta de Merchan to decide if the case should be accepted.
She is the only justice in the Chamber who did not rule on
the case on August 14. If the Chamber accepts the case,
alternate justices should make the decision in behalf of the
four other justices who ruled in August 2002.



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Comment


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9. (C) The Attorney General's action is part of a GOV
effort to keep focus on the April 2002 events. The goal is to
buttress the GOV's internal and external revolutionary


legitimacy with a legal history enshrining the concept that a
military coup, backed by imperialist powers, occurred. The
decision in this case, and the trial that will follow are
practically pre-ordained, and will probably lead to further
prosecutions for the events of April 2002. The opportunity to
rewrite history is as important to the GOV in this case as
the opportunity to punish its enemies.
Brownfield


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2004CARACA03805 - CONFIDENTIAL