US embassy cable - 05CARACAS813

C O N F I D E N T I A L  CARACAS 000813 
 
SIPDIS 
 
 
NSC FOR CBARTON 
USCINCSO ALSO FOR POLAD 
 
E.O. 12958: DECL: 02/25/2014 
TAGS: PGOV, KJUS, VE 
SUBJECT: APRIL 11 REVISITED: VENEZUELAN SUPREME COURT 
OVERRIDES ITSELF 
 
Classified By: POLITICAL COUNSELOR ABELARDO A. ARIAS FOR REASONS 1.4 (d 
) 
 
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Summary 
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1.  (C)  The Constitutional Chamber of the Venezuelan Supreme 
Court March 11 annulled the 2002 decision which ruled that 
the events of April 2002 constituted a power vacuum and not a 
coup.  The decision now allows the Attorney General to bring 
four high ranking military officers to trial on charges of 
military rebellion in connection with the events. 
Independent judicial experts said the ruling undermines the 
integrity of the justice system, while Vice President Jose 
Vicente Rangel said the decision defended the historical 
truth.  Attorney General Isaias Rodriguez said that a new 
investigation would now begin, possibly extending to other 
officers.  End Summary. 
 
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Constitutional Chamber Trumps Plenary 
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2.  (U)  The Constitutional Chamber of Venezuela's Supreme 
Court (TSJ) March 11 annulled the TSJ's 2002 decision which 
prevented the prosecution of four high ranking military 
officers accused of military rebellion in 2002.  In 2002 
Attorney General Isaias Rodriguez had tried to open an 
investigation for military rebellion against the commanders 
of the four service branches for their role in the events of 
April 2002.  The Attorney General requested the TSJ 
permission to open the investigation, as required by the 
constitution (ante-juicio de merito).  On August 14 2002, the 
TSJ denied permission, ruling that the prosecution did not 
 
SIPDIS 
have evidence to support the charge of military rebellion. 
In its decision, the TSJ pointed out that the officers had 
ordered their soldiers not to leave their barracks, and so no 
military coup had taken place.  This decision effectively 
protected all the military officers involved in the April 
events from being prosecuted. 
 
3.  (U)  Following an invitation from then TSJ President Ivan 
Rincon,  Rodriguez filed a request for revision of the 
decision with the Constitutional Chamber of the TSJ on 
December 2, 2004.  The Constitutional Chamber, in a decision 
written by former Electoral Council President Francisco 
Carrasquero, has now ruled that the decision was invalid 
because Justice Antonio Garcia Garcia recused Justices Omar 
Mora and Juan Rafael Perdomo.  According to the 
Constitutional Chamber, Garcia should have allowed then TSJ 
President Ivan Rincon to decide on the recusal.  The 
Constitutional Chamber ruled that this error was a "gross" 
violation of the rights of the accused to be tried by their 
"natural judges."  The Court also ordered any future 
prosecution requests be heard in the lower courts, arguing 
that the officers were now retired and so had no special 
privileges  The Constitutional Chamber did not take a 
position on whether the events of April 2002 constituted a 
coup. 
 
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Political, not Judicial 
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4.  (C)     Jesus Maria Casal Dean of the Andres Bello 
Catholic University law school calls the ruling political 
rather than juridical.  He told poloff March 14 it was absurd 
to annul a ruling which benefited the accused, using the 
argument that the rights of the accused had been violated. 
He said that juridically there is no way to argue that the 
decision would have been different if Mora and Perdomo had 
heard the case, since they are assumed to be impartial. 
Politically, he said, it is known that Mora and Perdomo are 
loyal to President Chavez and would have ruled in favor of 
the prosecution (one of their alternates ruled against the 
prosecution). This was in fact decisive in changing the sense 
of the decision. 
 
5.  (C)  Casal said it is possible that Garcia did violate 
the regulations, but noted that Mora and Perdomo's objections 
at the time were rejected by the TSJ itself.  According to 
Casal the damage to the concept of double jeopardy, and the 
dangerous precedent of a single chamber of the Court 
overruling a decision of the entire body were far more 
 
 
serious than the alleged infraction.  Casal questioned 
whether any court could now grant the accused a fair trial, 
citing the recent suspension or a tenured judge without pay 
by the TSJ Judicial Commission, which Casal asserted had sent 
a clear message to the lower courts that the political lines 
of the revolution must not be crossed. 
 
6.  (C)  Jose Luis Tamayo, defense lawyer for one of the four 
officers, told poloff March 15 that the Constitutional 
Chamber had used an absurd technical issue to overturn the 
case.  He asserted that the passing of the Organic Law of the 
TSJ, which explicitly gave the Constitutional Chamber the 
 
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right to review plenary Court decisions now seemed to have 
been designed specifically to reverse the 2002 decision.  He 
said that the 2002 decision had taught Chavez that the Court 
was a source of real power, and that he did not control it. 
Now, according to Tamayo, Chavez controls the judicial system 
completely, counting at least 25 of the justices as 
unconditional supporters. 
 
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Crass Ignorance 
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7.  (C) Opposition leaders and defense lawyers criticized the 
decision in the press.  Penal expert Alberto Arteaga said in 
El Universal March 14 the decision revealed a "crass 
ignorance of the law", saying judges cannot use defendants 
rights against the interests of the accused.  He said the 
decision was not juridical, but rather about the defense of 
the official truth about April 11.  Opposition leaders were 
quoted in the press March 15 saying the decision undermined 
the rule of law in Venezuela.  Leopoldo Puchi, Secretary 
General of the Movement Toward Socialism party, Eduardo 
Fernandez, President of the COPEI party, and Jesus Mendez 
Quijada, a leader of the Democratic Action party, all 
condemned the decision and the exposure of the defendants to 
double jeopardy.  They all stressed that any case could now 
be subject to review, even if the parts involved believed the 
case was definitively resolved by the Supreme Court. 
 
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Historical Truth 
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8.  (U)  President Chavez told reporters on March 13 that the 
decision showed the "deepening of democracy and the 
consolidation of the institutions."  Vice President Jose 
Vicente Rangel released a statement March 11, saying the 
Constitutional Chamber's decision "vindicated the historical 
truth, and the rule of law."  Rangel called the original 
decision an insult to the Venezuelan people, democracy and 
liberty. TSJ President Omar Mora said the protection against 
revising definitive sentences was relative, if the sentences 
were marked by errors from the beginning.  Attorney General 
Rodriguez told reporters the decision was justified, because 
the Court had exceeded its authority in 2002, and argued that 
since the officers had not been tried, it was not now double 
jeopardy to try them. 
 
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Next Steps 
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9.  (U)  Rodriguez also told reporters that prosecutors would 
now start their investigation over from the beginning.  He 
did not rule out the possibility that the officers could be 
charged with new crimes or that other officers could now be 
included in the case.  Rodriguez said that the Moral Council 
(Attorney General, Ombudsman, Comptroller General) would 
consider whether to suspend, and request the National 
Assembly to remove, any of the justices who voted in favor of 
the now annulled decision, citing particularly Justice 
Antonio Garcia.  Defense lawyers for the four officers told 
reporters their clients were now considering whether to 
present themselves to the prosecutor's office, request asylum 
in some embassy, or to go into hiding. 
 
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Comment 
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10.  (C)  This decision is the ultimate example of the 
subservience of the judicial system to political concerns. 
The juridically weak argument used by the Constitutional 
 
 
Chamber reveal the lack of interest on the Court in saving 
appearances, and the political importance of the decision. 
The 2002 decision had not only prevented a series of trials 
against the military officers involved in the April events, 
but had challenged the Chavista narrative about what had 
happened on April 11, 12 and 13.  We expect there will now be 
more prosecutions of military officers linked to the April 
events.  The government will take advantage of the 
opportunity to lay out the Bolivarian historical narrative of 
April 2002, which will also, no doubt, feature accusations 
against the USG. 
Brownfield 
 
 
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      2005CARACA00813 - CONFIDENTIAL