Identifier
Created
Classification
Origin
09CARACAS987
2009-07-29 21:32:00
CONFIDENTIAL
Embassy Caracas
Cable title:  

BIG BROTHER IS WATCHING: CONTROVERSIAL CRIMINAL

Tags:  PGOV KDEM VE 
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FM AMEMBASSY CARACAS
TO RUEHC/SECSTATE WASHDC PRIORITY 3471
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C O N F I D E N T I A L SECTION 01 OF 02 CARACAS 000987 

SIPDIS

HQSOUTHCOM ALSO FOR POLAD
DEPARTMENT PASS TO AID/OTI (RPORTER)

E.O. 12958: DECL: 07/29/2029
TAGS: PGOV KDEM VE
SUBJECT: BIG BROTHER IS WATCHING: CONTROVERSIAL CRIMINAL
CODE REFORM SET TO PASS

CARACAS 00000987 001.2 OF 002


Classified By: ACTING POLITICAL COUNSELOR DARNALL STEUART,
FOR REASON 1.4(D)

C O N F I D E N T I A L SECTION 01 OF 02 CARACAS 000987

SIPDIS

HQSOUTHCOM ALSO FOR POLAD
DEPARTMENT PASS TO AID/OTI (RPORTER)

E.O. 12958: DECL: 07/29/2029
TAGS: PGOV KDEM VE
SUBJECT: BIG BROTHER IS WATCHING: CONTROVERSIAL CRIMINAL
CODE REFORM SET TO PASS

CARACAS 00000987 001.2 OF 002


Classified By: ACTING POLITICAL COUNSELOR DARNALL STEUART,
FOR REASON 1.4(D)


1. (C) Summary: The Chavista-dominated National Assembly
(AN) is poised to pass yet another reform to Venezuela's
criminal penal code (COPP) which would expand state control
over criminal proceedings and, most controversially, require
banks and telecommunications companies to record and make
available to state officials all phone calls, emails, and
banking transactions in Venezuela. This re-packaging of the
deeply unpopular "snitch law" that President Chavez decreed
and then was forced to repeal in 2008, places the "snitching"
onus on companies rather than individuals. Industry experts
tell us that the reform's requirements are technologically
infeasible -- and that the state will nonetheless be able to
sanction them for non-compliance. With many Venezuelans and
much of the student population on vacation in August, the
Government of the Bolivarian Republic of Venezuela (GBRV) may
hope that passing the COPP in the coming weeks will prevent a
coordinated public backlash. End Summary.


2. (SBU) The AN passed the first reading of the COPP reform
June 25, and the state-run Bolivarian News Agency (ABN)
announced July 20 that the second discussion of the reform --
and presumably the final vote and promulgation -- would
commence the first week of August. United Socialist Party of
Venezuela (PSUV) AN Deputy Tulio Jimenez announced July 20
that the final "public consultation" would occur two days
later, with an event in Guarenas. AN Deputy Saul Ortega, of
PSUV, pledged that the reform is a means of combating
insecurity. AN President Cilia Flores added that the
opposition's criticisms of the reform proposal were another
example of "media terrorism."

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LEY SAPO RETURNS
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3. (C) Perhaps the most controversial aspect of the COPP
reform is the requirement for telecommunications companies to
record all private communications and email exchanges that
take place in Venezuela, and make them available to state
officials upon demand. Similarly, banks must also record and
make available their clients' banking records. According to

the bill's language, banks and companies are required to obey
information requests from the state "for reasons of necessity
or urgency" in the "term required, or in real time." The
bill asserts that the purpose is to "identify and locate"
individuals who are guilty of "punishable acts" and to
protect victims who are in imminent danger.


4. (C) Criminal law expert Magaly Vasquez opined to Poloffs
July 10 that this part of the COPP is a re-packaged version
of the "snitch law" ("ley sapo") that Chavez promulgated and
then revoked in 2008 after a fierce public backlash. The
2008 law placed the spying onus on individuals, according to
Vasquez, while the COPP places the responsibility on banking
and telecommunications companies -- thus making this version
less likely to draw public ire. Furthermore, she noted that
the 1991 Law for the Protection of Private Communication
allows the state to access this same information in cases
related to drug trafficking, kidnappings, and so on, but
stipulates that a judge must be notified. Essentially,
Vasquez argued, the reform cannot really be considered a
counter-crime measure because it is simply reaffirming
legislation that has been in effect for the past 18 years.
The major change is granting state officials unprecedented
freedom to demand the information on what amounts to a whim.
She cautioned that the reform bill does not stipulate the
involvement of a judge. Companies could be fined or even
closed for failing to comply.


5. (C) Vice President of Netuno telecommunications company
Alberto Schaffenorth told Econcouns July 20 that COPP's
requirements are confusing and technologically infeasible.
He noted that the storage alone for every phone call and
email message sent throughout Venezuela would be impossibly
large for any company to hold. Schaffenorth argued that the
GBRV knows that the bill's stipulations are impossible to
comply with, and that it gives the state a threat to hold
over the telecommunications industry's head -- at any moment,
the state can sanction companies for failing to comply with
impossible requirements. He said he had spoken with AN
deputies who were receptive to his complaints, but he seemed
pessimistic that the legislation's substance would change
significantly before its final passage. Schaffenorth noted

CARACAS 00000987 002.2 OF 002


that the spirit of the law itself is deeply troubling,
because it opens the door to just about any government
official to claim access to private information without even
a judge's order. Schaffenorth predicted that this could
create chaotic witchhunts as "anyone with a badge" can demand
banking information, phone calls, or email messages sent or
received by a particular target.

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A RETURN TO THE FOURTH REPUBLIC
--------------


6. (C) Vasquez related that the COPP reform is the fifth
reform in the ten years the code has been in effect. She
noted that the current code was first introduced in 1999,
dramatically changing criminal procedures which hitherto had
placed the burden of proof on the accused -- resulting in
long pre-trial detention periods before the accused were
given a chance to plead their case in court. Vasquez said,
however, that the recent reforms were trending the criminal
code back to its pre-1999 status probably to combat a
perception that the criminal system is too lenient towards
criminals. For example, Vasquez noted that the new reform
would allow 45 days of pre-trial detention, versus the 15 and
then 30 days that the code had previously allowed. It would
also reduce what benefits prisoners enjoy, including
conditional liberty and work programs outside of prisons.
Vasquez cautioned that curtailing these programs would worsen
the already tense and violence-prone conditions inside of
penitentiaries.


7. (C) Vasquez noted that the new COPP would shift
considerable power to state officials, and particularly the
attorney general's office, in a number of subtle ways. For
example, there would be no consequences if a state prosecutor
fails to make a court appearance, and would also likely
result in the defendant remaining in jail for additional
months before a new court date is set. Public defenders,
however, would face sanctions for failing to appear. Vasquez
said this will be damaging to what has become a strong,
well-educated young corps of public defenders, many of whom
started the job in the wake of the mass retirement that
followed the new code's passage in 1999. The Public
Defender's office (Defensoria del Pueblo) is empowered under
the reform law to request the revision of a court sentence
for public officials in cases where they claim there is a
violation of human rights. The bill also allows the TSJ to
issue direct sentencing in cases where they detect an
"erroneous application of a legal precept" without initiating
a new trial.

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COMMENT
--------------


8. (C) The COPP reform represents yet another piece of
legislation that further centralizes GBRV authority and chips
away at Venezuelans' right to privacy in their personal
communications and banking transactions. It also opens these
private companies to state sanctions or even takeover for
failing to comply with what appears to be impossible
requirements. Observers often note that the government
violates existing legislation with impunity, but implementing
new laws that permit outrageous state intrusion into the
private sphere creates a veil of legal legitimacy for the
Chavez administration's increasingly authoritarian tack. End
Comment.
CAULFIELD