US embassy cable - 04CARACAS2441

C O N F I D E N T I A L  CARACAS 002441 
 
SIPDIS 
 
 
NSC FOR CBARTON 
HQ USSOUTHCOM ALSO FOR POLAD 
USAID DCHA/OTI FOR RPORTER 
 
E.O. 12958: DECL: 05/25/2014 
TAGS: PHUM, PGOV, KJUS, VE 
SUBJECT: VENEZUELAN TRIAL PROCEDURES AND POLITICAL JUSTICE 
 
 
Classified By: A/DCM ABELARDO A. ARIAS FOR REASONS 1.5 (d) 
 
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Summary 
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1.  (U) Court cases against various opponents of President 
Hugo Chavez are at different stages in the judicial process. 
The case of Baruta Mayor Henrique Capriles, though he has 
been in custody for more than two months, is in its initial 
stages, while the case of National Guard Gen. Carlos Alfonzo 
Martinez is at trial. This cable gives a basic overview of 
Venezuela's trial system, highlighted with the status of 
several political cases now before the courts. End Summary. 
 
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Adversarial System 
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2.  (U) The Venezuelan penal system changed radically in 1998 
when the Organic Penal Procedures Code (COPP) came into 
effect. It changed Venezuela's justice system from an 
accusatorial to an adversarial system. This required the 
creation of a new system of public prosecutors and changed 
the role of the judge as well. Under the COPP, the judge 
handles procedural issues and, alone or with the 
participation of lay judges, decides the case. Trials are 
public, and defendants are protected by the presumption of 
innocence and the right to be free while on trial, under most 
circumstances. 
 
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Prosecutors 
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3.  (C) In Venezuela's justice system prosecutors begin 
investigations primarily based on complaints submitted by 
citizens. For complaints submitted during regular hours, the 
prosecutor to handle the case is chosen by lot. Complaints 
entered after hours are taken by the duty prosecutor (The 
lottery system was implemented with the COPP to avoid venue 
shopping and is similarly used in the assignment of cases to 
control and trial judges.) According to Juan Martin 
Echeverria, defense lawyer in the Capriles and SUMATE cases, 
there is a group of seven prosecutors  given all the 
political cases in which the GoV had an interest, in 
violation of the case distribution system which is supposed 
to operate in the prosecutors office, as in the courts. They 
included Danilo Anderson, prosecutor in the Capriles case, 
Luisa Ortega, prosecutor in the SUMATE case, and Jose Benigno 
Rojas, responsible for the accusation of bribery in the 
Tachira 9 case. Martin argued that these prosecutors act 
under strict orders from Attorney General Isaias Rodriguez, 
and not with the independence required by the COPP to search 
for evidence of innocence as well as guilt, and make a good 
faith effort to uncover the truth. 
 
 
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Imputado 
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4.  (U) The first stage in a trial in Venezuela is the public 
prosecutor's investigation of the alleged crime. During the 
preliminary investigation of a crime, the prosecutor's office 
acts without judicial supervision. When the prosecutor 
decides to begin a formal investigation of criminal 
responsibility against an individual, that individual is 
advised that he or she is the subject of an investigation 
(imputado). At this time, the prosecutor may request that a 
judge order the suspect be detained if all three of the 
following conditions are met: 1) there is sufficient evidence 
that a serious crime has been committed; 2) there is 
sufficient evidence that the suspect may have committed the 
crime; 3) there is sufficient reason to believe the suspect 
may flee, or try to interfere with the investigation. The 
prosecutor in Baruta Mayor Henrique Capriles' case has 
successfully argued these points to keep him in custody since 
 
May 11. 
 
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Pre-trial Detention 
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5.  (C) The COPP states that pre-trial detention should be an 
exception, but one half of all Venezuelan prisoners have not 
yet been convicted of any crime. According to Caracas Appeals 
Court Judge Cesar Sanchez, there is resistance among many 
control judges to accept this aspect of the COPP (NOTE: 
Control judges oversee procedures in cases prior to the trial 
itself. End note.) Sanchez told PolOff April 26 that many 
control judges ignore the rules in the COPP, and their 
decisions must be contested in Appeals Court to be 
overturned. 
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Assignment of Cases 
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6.  (C) The COPP states that when the prosecutor's office 
brings a case forth, the selection of the control judge is by 
lot. If the prosecutor brings his case forth between 7 p.m. 
and 7 a.m., however, the case goes to the control judge on 
duty. Important political cases such as the case, against 
Baruta Mayor Capriles and the case of nine opposition leaders 
in Tachira state, being tried for civil rebellion for alleged 
deeds in April 2002, have been brought to the courts after 
regular hours, according to Appeals Court Judge Jesus 
Ollarves, whose court twice ruled the practice of after hours 
assignment was improper. (Note: The Supreme Court overruled 
Ollarves' court on both occasions.) Ollarves told PolOff June 
21, that prosecutors have taken advantage of this system to 
make sure high profile political cases go to judges who are 
allies of the GOV. 
 
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Long Detentions 
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7.  (U) Once a prosecutor has opened an investigation against 
an individual he has 45 days, if the suspect is jailed, to 
decide whether to make a formal accusation before a judge (if 
the suspect is not jailed the period is ten months). Once the 
formal accusation is filed with the court, a trial judge is 
selected in the same manner as the control judge. If the 
suspect is under detention, the judge must have a hearing to 
determine if the detention should continue. This is the type 
of hearing that was scheduled for Capriles July 26, though it 
was canceled after an Appeals Court sent the case back to a 
new control judge. 
 
8.  (U) Suspects detained throughout their trial can be in 
jail for years due to the inefficiency of the judicial 
system. Hearings are frequently suspended because witnesses 
or lawyers do not come, and prisoners frequently miss 
hearings because the system of transportation for prisoners 
is inefficient and corrupt. National Guard Gen. Carlos 
Alfonzo Martinez was ordered from prison to house arrest July 
20 after being in custody since December, 2002. His trial 
began on July 19. The Tachira 9 have been in prison awaiting 
the beginning of their trial for civil rebellion for over a 
year. Their trial began July 26. 
 
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Public Trials 
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9.  (U) The COPP guarantees suspects the right to a public 
trial, except when a public trial: 1) would violate the right 
to privacy of one of the actors; 2) would endanger national 
security or public morals; 3) would reveal commercial or 
industrial secrets; 4) when a minor is testifying. The judge 
in the case of Gen. Alfonzo closed the trial to the press and 
public on July 19, for reasons of national security. The 
defense unsuccessfully objected that all the evidence had 
already been discussed publicly in a Supreme Court hearing. 
 
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Judges and Escabinos 
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10.  (U) Trial judges in Venezuela render decisions as well 
as ensure proper trial procedures are followed. In cases with 
a maximum penalty of less than four years, the judge decides 
on guilt or innocence, and sentences the defendant. In cases 
with a maximum sentence of more than four years, the judge 
presides over a mixed court, consisting of himself and two 
lay judges (escabinos). The two escabinos have the same right 
as the judge to question witnesses. Decisions can be made by 
a two-thirds majority. Delays in identifying escabinos cause 
subsequent delays in trials. The accused can request a trial 
without them after four failed attempts to form a mixed 
court. An accusation of bribery against a defense lawyer and 
the escabinos in the trial of the Tachira 9 caused the latest 
delay in the case. 
 
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Comment 
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11.  (C) The Venezuelan judicial system is a case study on 
the limits of progressive law. The previous division of the 
justice system between the AD and COPEI provided for a 
balance of power, but did not strengthen the idea of judicial 
independence.  The Venezuelan Constitution and the COPP take 
very progressive views on human rights, and the rights of the 
accused. In practice, however, respect for these rights falls 
short. Chavez and his loyalists control the prosecutors 
office and much of the court system. The failure to insulate 
prosecutors and judges from outside pressure and the 
excessive authority exercised by a politically partial 
Supreme Court over the entire court system, have made it more 
possible for criminal persecution in Venezuela to be the 
continuation of politics by other means. 
Shapiro 
 
 
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      2004CARACA02441 - CONFIDENTIAL