US embassy cable - 04CARACAS3431

C O N F I D E N T I A L  CARACAS 003431 
 
SIPDIS 
 
 
NSC FOR CBARTON 
USCINCSO ALSO FOR POLAD 
 
E.O. 12958: DECL: 11/05/2014 
TAGS: PHUM, KJUS, VE 
SUBJECT: VENEZUELA JUDICIAL UPDATE: CASES DISMISSED, NEW 
INVESTIGATIONS 
 
REF: CARACAS 03219 
 
Classified By: POLITICAL COUNSELOR ABELARDO A. ARIAS FOR REASONS 1.4 (d 
) 
 
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Summary 
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1.  (C)  A Caracas Appeals Court overturned the conviction of 
National Guard Gen. Carlos Alfonzo Martinez on November 1 on 
grounds that the actions alleged by the prosecutor did not 
constitute a crime under Venezuela's Penal Code.  The same 
court, citing similar grounds, dismissed the charges against 
Baruta Mayor Henrique Capriles on October 18.  Prosecutor 
Danilo Anderson announced November 4 that he would open an 
investigation of former Mayor of Greater Caracas Alfredo Pena 
and the capital's two highest ranking police officials for 
murder in relation to the events of April 11, 2002. 
Prosecutors also began investigating corruption allegations 
against Pena October 27.  Anderson has opened investigations 
against 28 persons, alleging civil rebellion in relation to 
the Carmona decree issued on April 12, 2002.  On November 1 a 
military prosecutor suspended his investigation of the 
journalist Patricia Poleo for releasing a video allegedly of 
Cubans at a military base.  End Summary. 
 
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Capriles and Alfonzo Martinez Cases Thrown Out 
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2.  (U)  The Second Appeals Court overturned the conviction 
of Gen. Carlos Alfonzo Martinez for violating security zones 
on November 1, on the grounds that the act allegedly 
committed by the general -- giving a speech to opposition 
demonstrators in front of National Guard headquarters --  is 
protected by the constitution and international treaties 
under freedom of speech.  The same Court threw out charges 
against Baruta Mayor Henrique Capriles on October 18, ruling 
that the events which the prosecution alleged took place were 
not criminal acts under the Penal Code.  The Court released 
Capriles from the restrictions he was under as conditions of 
bail.  In both cases the prosecution said it would appeal, 
but no action has been taken.  On November 3 Judicial 
Inspectors visited the appeals court to investigate how the 
Alfonzo Martinez decision was leaked to the press. 
 
3.  (C)  Appeals Court Judge Jesus Ollarves, who wrote both 
decisions, told PolOff October 23 that the prosecutions were 
clearly political.  He said they were brought forward by a 
group of prosecutors who were willing to follow orders, with 
no regard to the facts, or the law.  Ollarves said he was 
afraid the two cases had been assigned to his Court to 
prepare the ground for an attempt to remove him from the 
judiciary, though witnesses told him they saw no signs of 
tampering in the assignment of the case.  Ollarves is a 
tenured judge, making it more difficult to remove him. 
Ollarves has ruled against prosecutors in allegedly political 
cases in the past, including the decision to free opposition 
leader Carlos Melo, after he was arrested during the 
disturbances in February-March of 2004  Ollarves told PolOff 
that he received threats after the Melo decision, and took 
several months vacation.  In an e-mail communication on 
November 5, Ollarves called the judicial inspection an 
"intimidatory process." 
 
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Anderson Goes After Pena 
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4.  (C) On November 4 Prosecutor Danilo Anderson told 
reporters he had opened an investigation against Greater 
Caracas Mayor Alfredo Pena, the Metropolitan Secretary for 
Security Henry Vivas, and the Chief of the Metropolitan 
Police, Lazaro Forero, as the intellectual authors of the 
violence on April 11, 2002.  Vivas was chief of the 
Metropolitan Police at the time, and Forero his deputy.  The 
eight Metropolitan Police officers who have been in custody 
for eleven months charged with the deaths that occurred in 
April 2002 have begun to negotiate with Anderson, offering to 
cooperate in the investigation.   Prosecutors also opened an 
investigation against Pena on October 27 for corruption, 
after he withdrew from mayor's race.  Pena is presently in 
the U.S. 
 
 
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While Continuing Carmona Investigation 
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5.  (U)  Anderson has also opened investigations for civil 
rebellion against 28 persons of the 400 he expects to 
prosecute for their alleged participation in the proclamation 
of the Carmona Decree (see reftel), and has announced his 
intention to begin calling eight persons a day to be informed 
of the investigation to speed up the process.  Anderson told 
reporters on November 4 that he did not intend to pursue an 
investigation against reelected Zulia Gov. Manuel Rosales for 
the moment, because it would require special permission from 
the Supreme Court and the National Assembly. 
 
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Poleo Investigation Closed 
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6.  (U)  Military Prosecutor General Eladio Aponte Aponte 
November 1 suspended the investigation of journalist Patricia 
Poleo in relation to her release of a video purporting to 
show Cubans in Venezuela's main military base, Fuerte Tiuna. 
The action releases Poleo from court-imposed travel 
restrictions. 
 
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Comment 
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7.  (C)  The 2nd Chamber of the Caracas Appeals Court is the 
only Chamber left which is not dominated by allies of the 
GOV.  It is by no means certain that the government will not 
continue to pursue them by appealing to the Supreme Court, at 
least in the case of Gen. Alfonzo given his interest in 
participating in politics now that he is free.  With the case 
against the NGO Sumate also in suspense, the Pena case and 
the Carmona investigation, which aim to establish the 
Chavista perspective on the April 2002 events and to fix 
blame, appear to be the GOV's priority now. 
Brownfield 
 
 
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      2004CARACA03431 - CONFIDENTIAL