CUBA-VENEZUELA MLAT: REPRESSIVE INTEGRATION?

C O N F I D E N T I A L SECTION 01 OF 02 CARACAS 000671

SIPDIS

NSC FOR CBARTON
USCINCSO ALSO FOR POLAD

E.O. 12958: DECL: 02/25/2014
TAGS: PHUM PREL PGOV KJUS VE
SUBJECT: CUBA-VENEZUELA MLAT: REPRESSIVE INTEGRATION?


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

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Summary
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1. (C) The Venezuela-Cuba Mutual Legal Assistance Treaty
(MLAT) came into effect on December 22, 2004. Beyond
standard provisions, the Treaty allows cooperation in
investigating political crimes and offenses which are
considered illegal in only one of the two countries. Some
Venezuelan legal experts have criticized the Treaty as a
threat to Venezuelan sovereignty, alleging it unduly extends
the reach of Cuban authorities. The President of the
National Assembly's International Relations Commission,
Movimiento Quinta Republica Deputy Saul Ortega, defended the
treaty, asserting it is the same as ones Venezuela has with
other countries, and that it will not allow Cuban officials
to act on Venezuelan territory. End Summary.

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Mutual Legal Assistance Treaty
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2. (U) The Venezuela-Cuba Mutual Legal Assistance Treaty
(MLAT),signed by the two countries in 1999, came into effect
on December 22, 2004, when it was approved by the Venezuelan
National Assembly. The treaty establishes the legal
framework for cooperation between Cuban and Venezuelan
authorities investigating criminal matters, and includes many
standard MLAT provisions: gathering sworn statements;
facilitating documents and physical evidence; localization
and identification of persons; transfer of detained persons
to the other country to present testimony or other motives
(only with the consent of the detainee); execution of search
warrants; freezing of assets; collecting fines,
indemnizations, and seizures of property; and any other kind
of assistance consistent with the laws of the two countries.
The treaty states that either country can refuse cooperation
with political or military cases, but allows the government
to propose conditions under which it will cooperate in such
cases.


3. (U) In the MLAT, Venezuela has agreed to act in cases in
which the crime in question is not a crime in Venezuela, a
provision not included, for example, in Venezuela's MLAT
treaties with Mexico or the U.S. Venezuela also agreed to
the transfer of detainees for undefined "other motives"
besides giving testimony. The treaty specifies that the
transfer of detainees and other persons to either country to
give testimony requires the consent of the person in
question. Additionally, the MLAT with Cuba designates as the
Central Authority the Justice Ministry. (Note: The Justice
Ministry, as it existed when the MLAT was negotiated, no
longer operates. The Ministry of Interior and Justice
inherited only a few marginal competencies of the Justice
Ministry.)

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Repressive Integration
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4. (U) Constitutional lawyer Tulio Alvarez asserted
publicly in January that the treaty violated Venezuelan
sovereignty. He highlighted the possibility that Cuban
officials would be able to act directly in Venezuela, without
judicial supervision, to investigate people and property for
trials in Cuba. He further argued that they would be able to
investigate Venezuelans to charge them in Cuban courts.
Jesus Quintero, professor of criminal law at the Catholic
University Andres Bello, also noted that the Treaty would
allow cooperation on political and military cases. He argued
that this would put the Venezuelan judicial system, which he
described as "still democratic", at the service of a
totalitarian justice system. He warned that the MLAT would
allow the Cuban government to persecute people in Venezuela
and that Venezuelan citizens could be tried in Cuba for
criticizing the Cuban regime.


5. (C) Criminal law expert Alberto Arteaga called the MLAT
"delicate" in an interview with El Universal on January 14.
He criticized the provision for cooperation related to crimes
which are not recognized in both countries. He argued that
the fundamental problem was that Venezuela has a democratic
system based on due process and constitutional rights, while
Cuban justice is based on political factors, and questioned
what benefit the treaty gave to Venezuela. Comparing the
Venezuela-Cuba MLAT with the one signed with the U.S., former
Supreme Court lawyer Maria Soledad Sarria noted the Cuban
treaty makes written follow up to oral requests for
assistance in emergencies, discretionary. She also pointed
out that the treaty allows cooperation to be confidential,
which allegedly violates Venezuela's constitution.

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Much Ado About Nothing
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6. (C) Movimiento Quinta Republica (MVR) Deputy Saul
Ortega, President of the National Assembly International
Relations Commission, told poloff March 2 that the criticism
of the treaty was unfounded. He claimed that the treaty with
Cuba was the same as ones signed with Mexico and Paraguay.
Maria Faria, professional staffer for the committee, said she
had read the treaty line by line to compare it with other
treaties, and found no significant difference. An
examination of that document revealed that the
Venezuela-Mexico MLAT: forbids cooperation on political
crimes which are not also common crimes; forbids cooperation
on any crime which is not illegal in both countries; does not
include the provision for oral requests for assistance; does
not include a provision for confidentiality; and does not
contemplate the action of foreign authorities in each
country, all of which are allowed under the Venezuela-Cuba
MLAT. Ortega disputed that the treaty would allow Cubans to
act in Venezuela, and asserted that all requests for
assistance would be carried out by Venezuelan police.

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Comment
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7. (C) There are serious problems with the Venezuelan-Cuban
MLAT. Venezuela has signed a more liberal treaty with the
repressive Cuban government than the one it signed with us
and Mexico. The signing of a treaty with a dictatorship
which promises cooperation in criminal investigations for
actions which are not crimes in Venezuela, and the liberal
treatment of political crimes open the door to investigations
of Cuban dissidents in Venezuela. Given the extraordinarily
close ties between the two countries, we can only presume
that Cuban officials investigating in Venezuela will have a
broad mandate and extensive cooperation. The treaty relies
on the good faith and independence of Venezuela's police and
judicial officials to prevent abuse by Cuban officials. We
have little faith in either.
Brownfield