APRIL 11 REVISITED: VENEZUELAN SUPREME COURT

C O N F I D E N T I A L CARACAS 000813

SIPDIS


NSC FOR CBARTON
USCINCSO ALSO FOR POLAD

E.O. 12958: DECL: 02/25/2014
TAGS: PGOV KJUS VE
SUBJECT: APRIL 11 REVISITED: VENEZUELAN SUPREME COURT
OVERRIDES ITSELF

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

--------------
Summary
--------------


1. (C) The Constitutional Chamber of the Venezuelan Supreme
Court March 11 annulled the 2002 decision which ruled that
the events of April 2002 constituted a power vacuum and not a
coup. The decision now allows the Attorney General to bring
four high ranking military officers to trial on charges of
military rebellion in connection with the events.
Independent judicial experts said the ruling undermines the
integrity of the justice system, while Vice President Jose
Vicente Rangel said the decision defended the historical
truth. Attorney General Isaias Rodriguez said that a new
investigation would now begin, possibly extending to other
officers. End Summary.

--------------
Constitutional Chamber Trumps Plenary
--------------


2. (U) The Constitutional Chamber of Venezuela's Supreme
Court (TSJ) March 11 annulled the TSJ's 2002 decision which
prevented the prosecution of four high ranking military
officers accused of military rebellion in 2002. In 2002
Attorney General Isaias Rodriguez had tried to open an
investigation for military rebellion against the commanders
of the four service branches for their role in the events of
April 2002. The Attorney General requested the TSJ
permission to open the investigation, as required by the
constitution (ante-juicio de merito). On August 14 2002, the
TSJ denied permission, ruling that the prosecution did not

SIPDIS
have evidence to support the charge of military rebellion.
In its decision, the TSJ pointed out that the officers had
ordered their soldiers not to leave their barracks, and so no
military coup had taken place. This decision effectively
protected all the military officers involved in the April
events from being prosecuted.


3. (U) Following an invitation from then TSJ President Ivan
Rincon, Rodriguez filed a request for revision of the
decision with the Constitutional Chamber of the TSJ on
December 2, 2004. The Constitutional Chamber, in a decision
written by former Electoral Council President Francisco
Carrasquero, has now ruled that the decision was invalid
because Justice Antonio Garcia Garcia recused Justices Omar
Mora and Juan Rafael Perdomo. According to the
Constitutional Chamber, Garcia should have allowed then TSJ
President Ivan Rincon to decide on the recusal. The
Constitutional Chamber ruled that this error was a "gross"
violation of the rights of the accused to be tried by their
"natural judges." The Court also ordered any future
prosecution requests be heard in the lower courts, arguing
that the officers were now retired and so had no special
privileges The Constitutional Chamber did not take a
position on whether the events of April 2002 constituted a
coup.

--------------
Political, not Judicial
--------------


4. (C) Jesus Maria Casal Dean of the Andres Bello
Catholic University law school calls the ruling political
rather than juridical. He told poloff March 14 it was absurd
to annul a ruling which benefited the accused, using the
argument that the rights of the accused had been violated.
He said that juridically there is no way to argue that the
decision would have been different if Mora and Perdomo had
heard the case, since they are assumed to be impartial.
Politically, he said, it is known that Mora and Perdomo are
loyal to President Chavez and would have ruled in favor of
the prosecution (one of their alternates ruled against the
prosecution). This was in fact decisive in changing the sense
of the decision.


5. (C) Casal said it is possible that Garcia did violate
the regulations, but noted that Mora and Perdomo's objections
at the time were rejected by the TSJ itself. According to
Casal the damage to the concept of double jeopardy, and the
dangerous precedent of a single chamber of the Court
overruling a decision of the entire body were far more


serious than the alleged infraction. Casal questioned
whether any court could now grant the accused a fair trial,
citing the recent suspension or a tenured judge without pay
by the TSJ Judicial Commission, which Casal asserted had sent
a clear message to the lower courts that the political lines
of the revolution must not be crossed.


6. (C) Jose Luis Tamayo, defense lawyer for one of the four
officers, told poloff March 15 that the Constitutional
Chamber had used an absurd technical issue to overturn the
case. He asserted that the passing of the Organic Law of the
TSJ, which explicitly gave the Constitutional Chamber the

SIPDIS
right to review plenary Court decisions now seemed to have
been designed specifically to reverse the 2002 decision. He
said that the 2002 decision had taught Chavez that the Court
was a source of real power, and that he did not control it.
Now, according to Tamayo, Chavez controls the judicial system
completely, counting at least 25 of the justices as
unconditional supporters.

--------------
Crass Ignorance
--------------


7. (C) Opposition leaders and defense lawyers criticized the
decision in the press. Penal expert Alberto Arteaga said in
El Universal March 14 the decision revealed a "crass
ignorance of the law", saying judges cannot use defendants
rights against the interests of the accused. He said the
decision was not juridical, but rather about the defense of
the official truth about April 11. Opposition leaders were
quoted in the press March 15 saying the decision undermined
the rule of law in Venezuela. Leopoldo Puchi, Secretary
General of the Movement Toward Socialism party, Eduardo
Fernandez, President of the COPEI party, and Jesus Mendez
Quijada, a leader of the Democratic Action party, all
condemned the decision and the exposure of the defendants to
double jeopardy. They all stressed that any case could now
be subject to review, even if the parts involved believed the
case was definitively resolved by the Supreme Court.

--------------
Historical Truth
--------------


8. (U) President Chavez told reporters on March 13 that the
decision showed the "deepening of democracy and the
consolidation of the institutions." Vice President Jose
Vicente Rangel released a statement March 11, saying the
Constitutional Chamber's decision "vindicated the historical
truth, and the rule of law." Rangel called the original
decision an insult to the Venezuelan people, democracy and
liberty. TSJ President Omar Mora said the protection against
revising definitive sentences was relative, if the sentences
were marked by errors from the beginning. Attorney General
Rodriguez told reporters the decision was justified, because
the Court had exceeded its authority in 2002, and argued that
since the officers had not been tried, it was not now double
jeopardy to try them.

--------------
Next Steps
--------------


9. (U) Rodriguez also told reporters that prosecutors would
now start their investigation over from the beginning. He
did not rule out the possibility that the officers could be
charged with new crimes or that other officers could now be
included in the case. Rodriguez said that the Moral Council
(Attorney General, Ombudsman, Comptroller General) would
consider whether to suspend, and request the National
Assembly to remove, any of the justices who voted in favor of
the now annulled decision, citing particularly Justice
Antonio Garcia. Defense lawyers for the four officers told
reporters their clients were now considering whether to
present themselves to the prosecutor's office, request asylum
in some embassy, or to go into hiding.

--------------
Comment
--------------


10. (C) This decision is the ultimate example of the
subservience of the judicial system to political concerns.
The juridically weak argument used by the Constitutional


Chamber reveal the lack of interest on the Court in saving
appearances, and the political importance of the decision.
The 2002 decision had not only prevented a series of trials
against the military officers involved in the April events,
but had challenged the Chavista narrative about what had
happened on April 11, 12 and 13. We expect there will now be
more prosecutions of military officers linked to the April
events. The government will take advantage of the
opportunity to lay out the Bolivarian historical narrative of
April 2002, which will also, no doubt, feature accusations
against the USG.
Brownfield


NNNN
2005CARACA00813 - CONFIDENTIAL