US embassy cable - 04CARACAS3805

C O N F I D E N T I A L  CARACAS 003805 
 
SIPDIS 
 
 
NSC FOR CBARTON 
USCINCSO ALSO FOR POLAD 
 
E.O. 12958: DECL: 05/25/2014 
TAGS: PGOV, PHUM, KJUS, VE 
SUBJECT: VENEZUELA'S ATTORNEY GENERAL CHALLENGES APRIL 2002 
TSJ DECISION 
 
 
SIPDIS 
 
Classified By: POLITICAL COUNSELOR ABELARDO A. ARIAS FOR REASONS 1.4 (d 
) 
 
------- 
Summary 
------- 
 
1.  (U)  Attorney General Isaias Rodriguez asked Venezuela's 
Supreme Court (TSJ) December 2 to overturn its decision which 
freed four alleged military leaders of the April 2002 events 
and rejected his request to try the officers for military 
rebellion.  The case is important because it established the 
"power vacuum" doctrine to explain the April events, against 
the Chavez administration's argument that there was a coup. 
The A/G argues that the Constitutional Chamber should review 
the decision to correct several "gross errors" committed by 
the Court.  TSJ President Ivan Rincon promised the Chamber 
would accept such a case in a November 25 interview, leading 
to speculation about a concerted GOV strategy.  Critics have 
called the request a threat to the rule of law, which 
undermines the basic legal precept of double jeopardy, and 
the latest example of the "judicialization" of politics.  End 
Summary 
 
------------------------------- 
A/G Asks TSJ to Overturn Itself 
------------------------------- 
 
2.  (U)  Attorney General Isaias Rodriguez filed a motion 
with the Constitutional Chamber of the Supreme Court December 
2, asking it to review the August 14, 2002 TSJ decision not 
to allow two generals and two admirals to be tried for 
military rebellion in relation to the events of April 2002. 
(Note: The TSJ in plenary session is responsible for 
authorizing prosecutions of high ranking government and 
military officials.)  The officers were Gen. Efrain Vesquez 
Velasco, Gen. Pedro Pereira, Adm. Hector Ramirez Perez, and 
Adm. Daniel Comisso Urdaneta.  Rodriguez argues that 
Venezuela's constitution gives the Constitutional Chamber the 
right to review the constitutional decisions of all other 
courts, including those taken by the Supreme Court in plenary 
session.  Franklin Arrieche, author of the decision, and Vice 
President of the Supreme Court until his removal by the 
National Assembly on June 15, told reporters December 3 that 
the Plenary's decision was penal in nature, and thus not 
subject to the Constitutional Chamber's constitutional review 
powers. 
 
------------------------------- 
Plenary Chamber Ruled "No Coup" 
------------------------------- 
 
3.  (U)  Rodriguez himself sought to charge the four officers 
in 2002 with military rebellion.  On August 14 of that year, 
the TSJ refused, arguing: 1) That the specific charge brought 
before the court had no penalty in the Military Penal Code; 
2) That the facts of April 11 did not back up a charge of 
military rebellion, because the officers did not lead armed 
troops against the government, but rather refused orders to 
lead armed troops against the people; 3) That the officers 
acted in good faith believing President Chavez had resigned, 
as Gen. Lucas Rincon had declared publicly. The vote was 11 
to 9, with two alternate justices, who split their votes, 
replacing two hard line Chavista justices. This decision 
established the "power vacuum" doctrine to explain what 
happened i April 2002, as opposed to the "coup" theory 
pused by Rodriguez and other Chavista officials. 
 
----------- 
Gross Errors 
------------ 
 
4.  (U)  Rodriguez asserts the points on which the TSJ based 
its decision are "gross errors" which the Constitutional 
Chamber should review. According to Rodriguez, the Court 
should suggested applying another article of the Military 
Penal Code to punish rebellion, if the one the prosecutor 
cited had no penalty. Arrieche dismissed this argument in 
comments to reporters, pointing out it is improper for judges 
to do so under an adversarial legal system. The A/G further 
argued that it was improper for the Court to examine the 
details of the case, as in whether troops were used, to 
decide if the case had merit.  Rodriguez also attacked the 
 
 
"Rincon argument", saying Gen. Rincon's announcement did not 
absolve all actors of responsibility, especially those who 
were with Chavez and knew he had not resigned.  Finally, 
Rodriguez questioned the basis under which alternates joined 
the plenary to tip the balance towards a negative vote. 
Rodriguez suggested that if the Constitutional Chamber agreed 
with him, the Moral Council (A/G, Controller General, and 
Ombudsman) would consider suspending the judges who were 
responsible for the errors, and calling on the National 
Assembly to remove them. This could effect six sitting 
justices. 
 
-------------------- 
Rincon Offers Review 
-------------------- 
 
5.  (U)  Supreme Court Chief Justice Ivan Rincon seemed to 
invite Rodriguez' motion in an interview on VTV November 25. 
In the interview, Rincon suggested that he knew Rodriguez was 
planning the motion, and said if he presented it, the 
Constitutional Chamber would accept the case. Rincon said 
that the TSJ decision had created a sensation of impunity in 
the country, and may therefor have contributed to the death 
of prosecutor Danilo Anderson. He mentioned various times the 
fact that the Court had two alternates sitting on it when it 
made its decision. (Note: This may be the basis on which the 
Constitutional Chamber overrules the decision.) 
 
--------------- 
Double Jeopardy 
--------------- 
 
6.  (U)  Alberto Arteaga, former dean of legal studies at the 
UCV and frequent commentator on penal issues,  called the 
case a grave precedent, in a newspaper interview on December 
5. The Constitutional Chamber's authority to review cases for 
constitutional reasons is unquestionable, according to 
Arteaga. What Rodriguez is challenging, however, is a penal 
decision, from the highest court, in favor of the accused. 
To overturn the case, and allow a trial to go forward, would 
constitute double jeopardy, and  undermine the entire 
judicial system, according to Arteaga. Penal Chamber Justice 
Blanca Rosa Marmol de Leon called the A/G's request very 
dangerous, as it would add judicial uncertainty to all the 
cases that might be subject to this new level of judicial 
review. She also rejected that the decision denied that there 
was a coup, saying the decision ruled only on the existence 
or not of the crime of military rebellion. 
 
-------------------- 
Justice or Politics? 
-------------------- 
 
7.  (U)  National Assembly Deputy Nicolas Maduro (Movimiento 
Quinto Republica) December 2 said the move was long overdue, 
and a fitting tribute to assassinated prosecutor Danilo 
Anderson. He called for a trial which would reveal the role 
in the April 11 events of economic, political and military 
factors, as well as the role of the USG, El Salvador, Spain, 
and Colombia. Deputy Carlos Talbante (Movimiento Al 
Socialismo) called it a decision which would accentuate 
retaliation and vengeance. Deputy Pastor Heydra (Accion 
Democratica) said the decision revealed the totalitarian, 
authoritarian, and autocratic nature of the regime. 
 
---------------------- 
Who is Left to Decide? 
---------------------- 
 
8.  (U)  The Constitutional Chamber assigned Justice Carmen 
Zuleta de Merchan to decide if the case should be accepted. 
She is the only justice in the Chamber who did not rule on 
the case on August 14. If the Chamber accepts the case, 
alternate justices should make the decision in behalf of the 
four other justices who ruled in August 2002. 
 
------- 
Comment 
------- 
 
9.  (C)  The Attorney General's action is part of a GOV 
effort to keep focus on the April 2002 events. The goal is to 
buttress the GOV's internal and external revolutionary 
 
 
legitimacy with a legal history enshrining the concept that a 
military coup, backed by imperialist powers, occurred.  The 
decision in this case, and the trial that will follow are 
practically pre-ordained, and will probably lead to further 
prosecutions for the events of April 2002. The opportunity to 
rewrite history is as important to the GOV in this case as 
the opportunity to punish its enemies. 
Brownfield 
 
 
NNNN 
      2004CARACA03805 - CONFIDENTIAL