CHAVISTAS GET TOUGH: VENEZUELA'S PENAL CODE

C O N F I D E N T I A L SECTION 01 OF 02 CARACAS 000168

SIPDIS

NSC FOR CBARTON
USCINCSO ALSO FOR POLAD

E.O. 12958: DECL: 05/25/2014
TAGS: PGOV PHUM KJUS VE
SUBJECT: CHAVISTAS GET TOUGH: VENEZUELA'S PENAL CODE
AMENDMENTS

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

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Summary
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1. (C) The Venezuelan National Assembly approved amendments
to the Penal Code January 6, which a prominent Venezuelan
lawyers criticized as repressive, and unconstitutional, while
a Chavez supporter called them "fascist". The amendments
criminalize popular forms of protest such as banging pots and
blocking streets, and the transmission through any media of
messages which might "upset" the public. They also
dramatically raise the jail time for rape, murder, defamation
and libel. One of the most controversial features of the
amendments is the elimination for many crimes of procedural
"benefits" such as bail and alternative sentences. The bill
now awaits President Chavez's signature. End Summary.

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Partial Reform Passed
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2. (U) The Venezuelan National Assembly approved a Partial
Reform of the Penal Code January 6, modifying 37 existing
articles. One of the controversial aspects of the amendments
is the modification of Article 508, concerning the punishment
for those who engage in noisy protests. The change
suppresses the old reference to "unauthorized", and now
punishes any demonstration which uses shouts or other noisy
instruments to disrupt public meetings, or the public's rest.
It also introduces a two-month prison sentence, increased to
four months if the victim is a public official. Prior to the
change, the punishment was a fine. This amendment is widely
interpreted as aimed at the "cazerolazo" pot-banging protests
which have been a major feature of opposition demonstrations.
The National Assembly also modified Article 358, which is
aimed at those who block streets or roads, to punish such
activity with four to eight years in prison.

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Media Law Gets Teeth
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3. (U) Several speakers at a symposium on the penal code in
December pointed to the modification of Article 297 as the
most dangerous aspect of the law. This article outlaws
granting material support for, or engaging in terrorist acts
using explosive devices or firearms. In a new paragraph, the
article stipulates prison terms of two to five years for
those who use any media (printed, radio, television,
telephone, e-mail, pamphlets) to disseminate false
information to cause public panic, or anxiety. Legal expert
Juan Martin Echevarria Price called this clause part of a
pincer movement with the Media Law. While the Media Law
regulates and threatens the financial viability of sanctioned
media, this clause allows for criminal action against those
deemed responsible for dangerous reports. Legal expert
Alberto Arteaga noted that, given the two to five year
sentence, a judge could order preventive pre-trial detention,
which would give any reporter pause given Venezuela's long
trial delays and sub-human prison conditions.

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How Dare You!
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4. (U) Martin and Arteaga criticized the failure to remove
Articles 148 and 149, on offending the president and other
high ranking government officials. Legislators added new
officials instead, and increased the penalties. Legislators
also changed Article 216, which punishes those who threaten
public officials, to include their family members and homes,
and Articles 444 and 446, on defamation and libel
respectively, to increase the penalties, and to make the
crime easier to prove by stipulating that the written or
transmitted act can constitute proof of the crime. In the
opinion of Martin, all of these crimes should have been
suppressed, to modernize the penal code, rather than being
strengthened.

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Get Tough on Crime
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5. (U) Many of the modifications concern serious felonies,
such as rape, murder, kidnapping and robbery. In these
crimes, the National Assembly significantly increased
penalties and made the penal code more specific. Fifth
Republic Movement Deputies Iris Varela and Cilia Flores
defended the amendments as a law and order measure. The
penalty for rape, which is given a much broader definition,
is raised from five to ten years to fifteen to twenty.
Kidnapping is defined more specifically and punishments also
increased. The Legislators specifically criminalized land
invasions in the modification of Article 473, with a five to
ten year sentence.

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Benefits or Rights?
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6. (C) Many of the modified articles contain a special
paragraph which states that those implicated in the crimes
will not enjoy the procedural "benefits", or be able to take
advantage of alternative means of completing the sentence.
While the exact meaning of this language is not clear, Judge
Monica Fernandez told PolOff that the intention is to force
the courts to order pre-trial detention. Fernandez and
Arteaga argued that this was unconstitutional, since the
Organic Law of Penal Procedures makes trial in freedom a
basic principal of the Venezuelan legal system, which cannot
be overruled by the penal code.

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Harsh Criticism on Both Sides
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7. (C) Fernando Avila, Assistant to National Assembly
Deputy Luis Tascon (Movimiento Quinta Republica - MVR),told
PolOff December 15 that the law was not passed prior to
Christmas, as expected, due to opposition among some
pro-Chavez deputies to certain aspects of the law. Avila
said the bill was "fascist" because it criminalized dissent.
He said this was grave because road cutting protests, and
noisy demonstrations could also be used by Chavistas to call
attention to broken promises and corruption. He said he and
others were worried about the direction the government was
moving in. According to press reports Deputy Jose Ernesto
Rodriguez (MVR) complained on the floor of the Assembly
December 9 that he would not vote for an article that,
"crushes the constitution of 1999." Avila mentioned Deputy
Calixto Ortega (MVR),Jose Ricardo Sanguino (MVR),and Luis
Tascon (MVR) as being among the pro-GOV deputies that opposed
the law. For the opposition, Deputy Gerardo Blyde (Primero
Justicia) called the law the "legislation of revenge", in an
magazine interview. He noted that the law illegalizes "all
the acts that the opposition has been doing, protests,
demonstrations, (guarimba),speaking ill of public officials,
pot banging, that is each of the forms of the political
dissidence has been classified as a crime in this reform of
the Code."

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Comment
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8. (C) These amendments to Venezuela's Penal Code are
designed to give the GOV tools to confront the types of
protests which have been used by the opposition for the last
three years. The exact effect will depend upon how the GOV
implements the law, but clearly the GOV has a significant
tool with which to dissuade public protest - - and if that
fails, to put protesters in jail. Most of the changes are
modifications of existing laws, which make them more
repressive and easier to use. The media terrorism clause is
an exception, which should be looked at closely from a
freedom of the press standpoint, and seen as a key aspect of
the media control strategy. The toughening of other criminal
sanctions, and the tightening of the right to be tried in
freedom will generate little opposition in Venezuelan
society, where police executions of criminal suspects draws
little reproach from either side, though legal experts may be
appalled.
McFarland