US embassy cable - 04CARACAS3679

C O N F I D E N T I A L  CARACAS 003679 
 
SIPDIS 
 
 
NSC FOR CBARTON 
USCINCSO ALSO FOR POLAD 
 
E.O. 12958: DECL: 05/25/2014 
TAGS: PGOV, PHUM, KJUS, VE 
SUBJECT: RECENT HISTORY OF JUDICIAL REFORM IN VENEZUELA 
 
REF: CARACAS 03677 
 
Classified By: POLITICAL COUNSELOR ABELARDO A. ARIAS FOR REASONS 1.4 (d 
) 
 
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Summary 
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1.  (C)  Venezuela's judicial system, according to a variety 
of experts, suffers a number of structural flaws, including 
politicization of the courts and the shock waves of the 
switch to an adversarial court system.  Judges, academics, 
and journalists concur that judicial reform has had mixed 
results, and that the problem is more complex, judicially and 
politically, than may appear.  Several argued that the 
justice system is getting worse, not better, under the 
current Supreme Court leadership, and questioned the wisdom 
of supporting current reform proposals.  This cable looks at 
the history of Venezuela's judicial reform and the evolution 
of the judicial system.  Reftel examines the present state of 
the judicial system.  End Summary. 
 
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Pre-Chavez Justice 
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2.  (C)  Venezuelan judges, academics, and NGO's agree that 
incompetence, long delays and corruption marked Venezuela's 
judicial system prior to the election of President Hugo 
Chavez.  Maria Gracia Morais, Director of the Center of 
Juridical Investigations at the Catholic University Andres 
Bello (UCAB), told PolOff October 12 that incompetence was 
very common, especially among judges in the criminal courts. 
Judicial delays meant that 80% of persons in prisons in 1998 
were waiting for a final decision on their case, which could 
take up to eight years.  The judicial system was 
administrative, written, and secret, with the judge 
responsible for investigating and judging cases.  Morais said 
the closed nature of the system encouraged judicial 
corruption, since there was no effective watchdog.  Most 
judges, she said, were politically identified with one of the 
main political parties, for whom judges did favors in return 
for the parties' help in becoming a judge. 
 
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Judicial Council 
---------------- 
 
3.  (C)  Prior to the 1999 Constitution, the justice system 
had two heads.  One was the Supreme Court, which was the 
final court of appeal.  The other was the Judicial Council, 
which had responsibility for administering the lower courts, 
and disciplining judges. The Council was independent of the 
Supreme Court, though the Court named three of its five 
members.  Supreme Court Administrator Candido Perez told 
PolOff November 11 that there was no mechanism for the Court 
to exert control over the members of the Council once they 
were named.  Morais said that the Council was highly 
politicized, as were the lower courts and the Supreme Court. 
She said the Council named judges based on quotas for the 
established political parties, rather than for their 
competence. 
 
4.  (C)  According to Morais, the division of judicial power 
among political parties protected the parties from judicial 
oversight, or legal persecution, as judges had to face the 
possibility that their party might one day be out of power. 
Morais said this arrangement did not protect those parties or 
groups that were not part of the political system, especially 
left wing groups.  She argued that for this reason, many 
supporters of Chavez do not feel any need to hide the 
political motive of their decisions today, having experienced 
politicized and repressive justice in the past. 
 
5.  (C)  Professor Ligia Bolivar, Director of the Human 
Rights Center at the UCAB, told PolOff October 28 that in 
1989 25% of judges were tenured, while 75% were provisional. 
This meant that 75% of judges could be fired after a an 
investigation by judicial inspectors, and a decision by the 
Council, rendering them more susceptible to political 
pressure.  Bolivar argued that the Council had taken steps to 
correct this situation by instituting exams to tenure judges. 
 She claimed that this process brought the number of tenured 
judges up to 70% by 1996-7.  Appeals Court Judge Jesus 
Ollarves, and the former head of the Executive Directorate of 
 
the Magistrature (DEM) Ricardo Jimenez, however, told PolOff 
they believe there had never been a significant number of 
tenured judges in the past. 
 
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1st World Bank Loan 
------------------- 
 
6.  (C)  In 1992 the Council undertook a Judicial Reform Plan 
with the World Bank. According to Bolivar, the World Bank 
pushed the plan, but it never had strong support within the 
Venezuelan judiciary or the GOV. The project promised $30 
million from the World Bank, to be matched by $30 million 
from the GOV.  A 1996 report by human rights groups 
criticized it as an attempt by then President Carlos Andres 
Perez to force judicial reform through despite opposition 
from the legislature.  According to Candido Perez, who was 
responsible for implementing the project, the aim was to 
improve the organization of the Judicial Council and the 
courts, to make them more transparent and efficient. 
Bolivar, who was an advisor to the program until 1999, said 
the reform was isolated from the rest of the justice system. 
 
7.  (C)  Perez said the project began in 1994, but was 
practically suspended from 1997 to 2000, as the Judicial 
Council suffered a crisis which ended when it was replaced by 
the Executive Directorate of the Magistrature (DEM) in August 
2000.  At that point, $10 million remained from the original 
loan, and the DEM reactivated the project with an extension 
from the World Bank.  According to Perez and Jimenez, the 
project, based on the computer program Juris 2000, has 
allowed centralization of judicial support teams, leading to 
increased efficiency, uniform practices, and reduced 
corruption, by rotating judicial assistants.  Several new 
regional court buildings have also been constructed, and many 
computers purchased.  According to Perez, many of the reforms 
begun with the World Bank funds have been continued with GOV 
funds, including the spreading of the Juris 2000 system, and 
the upgrading of facilities throughout the country.  The 
World Bank also funded a similar, though much smaller, reform 
project at the Supreme Court, from 1997 to 2000. This project 
reorganized the court, and greatly increased its 
technological capability, according to Perez and Jimenez. 
 
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1999 Constitution 
----------------- 
 
8.  (U)  The December 1999 constitution changed the 
organization of Venezuela's judiciary,   creating a single 
organizational structure, under a new Supreme Tribunal (TSJ). 
 The TSJ is organized into six Chambers; Constitutional, 
Penal, Civil, Social, Electoral, and Administrative.  Under 
the new constitution, the Constitutional Chamber's 
interpretation of the constitution has the force of law.  The 
constitution puts the organization responsible for 
administering the lower courts, the DEM, directly under the 
control of the TSJ.  The judges' disciplinary courts, which 
have not yet been created, are also under the authority of 
the TSJ.  The constitution also guarantees the judiciary at 
least 2 percent of the national budget, to be administered by 
the TSJ, giving it budgetary independence and greatly 
increased resources. 
 
9.  (C) Metropolitan University law faulty dean Rodrigo Perez 
Perdomo told PolOff that the new judicial organization 
overburdened, and over empowered the TSJ.  It has led to the 
creation of a powerful Judicial Committee, consisting of the 
vice-presidents of each Chamber and the President of the 
Plenary Chamber.  This Committee supervises the DEM and 
disciplines judges.  According to the constitution, judges 
are to be trained in a judicial school and tenured after an 
exam to guarantee their independence, but the TSJ suspended 
the exams in March 2003 because they were expensive. 
 
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Judicial Emergency 
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10.  (C)  In August 1999 the Constituent Assembly declared a 
judicial emergency, and named a Committee to purge corrupt 
judges.  Later that year, the Committee became the Commission 
on the Functioning and Restructuring of the Judicial System, 
and under that name it continues to function today, under the 
authority of the TSJ.  Perez Perdomo asserted that 400 
tenured judges were fired or forced to resign by the 
 
Committee. Elio Gomez Grillo, a member of the committee, said 
the number of fired judges was 184, with 33 suspended judges 
by the end of 2001, according to the TSJ Journal.  About 200 
judges passed exams to be tenured following the purge, before 
the program was suspended.  Bolivar, who quit as an advisor 
to the modernization process because of the purge, said the 
Committee reversed the work the Judicial Council had done to 
increase the number of tenured judges. 
 
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COPP Reform 
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11.  (U)  In July 1998 the Venezuelan legislature passed a 
new Penal Procedures Code (COPP), which changed the 
Venezuelan legal system from an administrative law system to 
an adversarial system.  The COPP came into effect in 1999, 
after a year to adjust the judicial system.  Bolivar asserts 
the COPP had very little support within the GOV or within the 
judicial system.  The reform introduced the presumption of 
innocence, forced prosecutors to take suspects before a judge 
within 24 hours, made pre-trial detention the exception, and 
called for jury trials in serious cases. Rules against having 
prisoners in jail for more than two years without trial led 
to the release of over 10,000 inmates. 
 
12.  (C)  Public reaction to the prisoner release and the 
perception that the COPP was giving more weight to the rights 
of the suspect than to the victim led to a reform of the COPP 
in 2001.  The reform eliminated jury trials, made pre-trial 
detention easier in more serious cases, and lowered the 
requirements for police to claim to have caught suspects in 
the act, among other changes.  Carlos Ponce, of the judicial 
NGO Consortium Development and Justice, told PolOff November 
8 that the reform "gutted" the COPP, making it much easier 
for the police and prosecutors to continue to work in their 
traditional, and secretive way. 
 
13.  (C)  Vicente Mujica, law school professor at the Central 
University, and an alternate Appeals Court judge, told PolOff 
November 5 that the Attorney General's Office so opposed the 
COPP that it did nothing to prepare prosecutors for their 
new, greatly expanded responsibilities.  Carmen Aguindigue, 
formerly the number three in the A/G's office told PolOff 
November 4 that the A/G's office had not yet undergone the 
kind of reorganization that was taking place in the courts, 
and could not monitor the treatment prosecutors were giving 
cases, or ensure adequate investigations.  Prosecutor Ali 
Marquina (protect) told PolOff August 30 that each prosecutor 
has a nominal case load of 8,500. 
 
14.  (C)  The COPP also changed the role of the police in the 
judicial system. Aguindigue told PolOff that under the 
administrative law system, only the Technical and Judicial 
Police had responsibility for obtaining evidence for the 
judge.  Now know as the Cientific and Penal Criminal 
Investigation Corps, it and the state and municipal police 
now have responsibility for guarding the crime scene and 
obtaining evidence.  These are responsibilities for which the 
police forces are totally unprepared, according to 
Aguindigue.  She said this increases impunity as many cases 
cannot be won in the courts because neither the police nor 
the prosecutors are capable of completing or supervising a 
competent investigation.  Jimenez also complained that the 
police do not understand their responsibilities under the 
COPP. 
Brownfield 
 
 
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      2004CARACA03679 - CONFIDENTIAL