US embassy cable - 05CARACAS168

C O N F I D E N T I A L SECTION 01 OF 02 CARACAS 000168 
 
SIPDIS 
 
NSC FOR CBARTON 
USCINCSO ALSO FOR POLAD 
 
E.O. 12958: DECL: 05/25/2014 
TAGS: PGOV, PHUM, KJUS, VE 
SUBJECT: CHAVISTAS GET TOUGH: VENEZUELA'S PENAL CODE 
AMENDMENTS 
 
Classified By: POLITICAL COUNSELOR ABELARDO A. ARIAS FOR REASONS 1.4 (d 
) 
 
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Summary 
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1.  (C)  The Venezuelan National Assembly approved amendments 
to the Penal Code January 6, which a prominent Venezuelan 
lawyers criticized as repressive, and unconstitutional, while 
a Chavez supporter called them "fascist".  The amendments 
criminalize popular forms of protest such as banging pots and 
blocking streets, and the transmission through any media of 
messages which might "upset" the public.  They also 
dramatically raise the jail time for rape, murder, defamation 
and libel.  One of the most controversial features of the 
amendments is the elimination for many crimes of procedural 
"benefits" such as bail and alternative sentences.  The bill 
now awaits President Chavez's signature.  End Summary. 
 
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Partial Reform Passed 
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2.  (U)  The Venezuelan National Assembly approved a Partial 
Reform of the Penal Code January 6,  modifying 37 existing 
articles.  One of the controversial aspects of the amendments 
is the modification of Article 508, concerning the punishment 
for those who engage in noisy protests.  The change 
suppresses the old reference to "unauthorized", and now 
punishes any demonstration which uses shouts or other noisy 
instruments to disrupt public meetings, or the public's rest. 
 It also introduces a two-month prison sentence, increased to 
four months if the victim is a public official.  Prior to the 
change, the punishment was a fine.  This amendment is widely 
interpreted as aimed at the "cazerolazo" pot-banging protests 
which have been a major feature of opposition demonstrations. 
 The National Assembly also modified Article 358, which is 
aimed at those who block streets or roads, to punish such 
activity with four to eight years in prison. 
 
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Media Law Gets Teeth 
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3.  (U)  Several speakers at a symposium on the penal code in 
December pointed to the modification of Article 297 as the 
most dangerous aspect of the law.  This article outlaws 
granting material support for, or engaging in terrorist acts 
using explosive devices or firearms.  In a new paragraph, the 
article stipulates prison terms of two to five years for 
those who use any media (printed, radio, television, 
telephone, e-mail, pamphlets) to disseminate false 
information to cause public panic, or anxiety.  Legal expert 
Juan Martin Echevarria Price called this clause part of a 
pincer movement with the Media Law.  While the Media Law 
regulates and threatens the financial viability of sanctioned 
media, this clause allows for criminal action against those 
deemed responsible for dangerous reports.   Legal expert 
Alberto Arteaga noted that, given the two to five year 
sentence, a judge could order preventive pre-trial detention, 
which would give any reporter pause given Venezuela's long 
trial delays and sub-human prison conditions. 
 
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How Dare You! 
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4.  (U)  Martin and Arteaga criticized the failure to remove 
Articles 148 and 149, on offending the president and other 
high ranking government officials.  Legislators added new 
officials instead, and increased the penalties.  Legislators 
also changed Article 216, which punishes those who threaten 
public officials, to include their family members and homes, 
and Articles 444 and 446, on defamation and libel 
respectively, to increase the penalties, and to make the 
crime easier to prove by stipulating that the written or 
transmitted act can constitute proof of the crime.  In the 
opinion of Martin, all of these crimes should have been 
suppressed, to modernize the penal code, rather than being 
strengthened. 
 
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Get Tough on Crime 
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5.  (U)  Many of the modifications concern serious felonies, 
such as rape, murder, kidnapping and robbery.  In these 
crimes, the National Assembly significantly increased 
penalties and made the penal code more specific.  Fifth 
Republic Movement Deputies Iris Varela and Cilia Flores 
defended the amendments as a law and order measure.  The 
penalty for rape, which is given a much broader definition, 
is raised from five to ten years to fifteen to twenty. 
Kidnapping is defined more specifically and punishments also 
increased.  The Legislators specifically criminalized land 
invasions in the modification of Article 473, with a five to 
ten year sentence. 
 
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Benefits or Rights? 
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6.  (C)  Many of the modified articles contain a special 
paragraph which states that those implicated in the crimes 
will not enjoy the procedural "benefits", or be able to take 
advantage of alternative means of completing the sentence. 
While the exact meaning of this language is not clear, Judge 
Monica Fernandez told PolOff that the intention is to force 
the courts to order pre-trial detention.  Fernandez and 
Arteaga argued that this was unconstitutional, since the 
Organic Law of Penal Procedures makes trial in freedom a 
basic principal of the Venezuelan legal system, which cannot 
be overruled by the penal code. 
 
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Harsh Criticism on Both Sides 
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7.  (C)  Fernando Avila, Assistant to National Assembly 
Deputy Luis Tascon (Movimiento Quinta Republica - MVR), told 
PolOff December 15 that the law was not passed prior to 
Christmas, as expected, due to opposition among some 
pro-Chavez deputies to certain aspects of the law.  Avila 
said the bill was "fascist" because it criminalized dissent. 
He said this was grave because road cutting protests, and 
noisy demonstrations could also be used by Chavistas to call 
attention to broken promises and corruption.  He said he and 
others were worried about the direction the government was 
moving in.  According to press reports Deputy Jose Ernesto 
Rodriguez (MVR) complained on the floor of the Assembly 
December 9 that he would not vote for an article that, 
"crushes the constitution of 1999."  Avila mentioned Deputy 
Calixto Ortega (MVR), Jose Ricardo Sanguino (MVR), and Luis 
Tascon (MVR) as being among the pro-GOV deputies that opposed 
the law. For the opposition, Deputy Gerardo Blyde (Primero 
Justicia) called the law the "legislation of revenge", in an 
magazine interview.  He noted that the law illegalizes "all 
the acts that the opposition has been doing, protests, 
demonstrations, (guarimba), speaking ill of public officials, 
pot banging, that is each of the forms of the political 
dissidence has been classified as a crime in this reform of 
the Code." 
 
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Comment 
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8.  (C) These amendments to Venezuela's Penal Code are 
designed to give the GOV tools to confront the types of 
protests which have been used by the opposition for the last 
three years.  The exact effect will depend upon how the GOV 
implements the law, but clearly the GOV has a significant 
tool with which to dissuade public protest - - and if that 
fails, to put protesters in jail.  Most of the changes are 
modifications of existing laws, which make them more 
repressive and easier to use.  The media terrorism clause is 
an exception, which should be looked at closely from a 
freedom of the press standpoint, and seen as a key aspect of 
the media control strategy.  The toughening of other criminal 
sanctions, and the tightening of the right to be tried in 
freedom will generate little opposition in Venezuelan 
society, where police executions of criminal suspects draws 
little reproach from either side, though legal experts may be 
appalled. 
McFarland