As Venezuela heads toward its fifteenth internationally monitored election in ten years[1], the international media assault against the democratically-elected Chavez government is intensifying. On April 3rd, New York Times correspondent Simon Romero lent a hand to Venezuela’s elite, neo-liberal opposition by warping positive news about the government’s anti-corruption efforts into a profoundly biased diatribe about supposed political persecution.

With scant reference to several very relevant facts, Romero suggested that Chavez puppeteered an arbitrary arrest of Judge María Lourdes Afiuni merely for having displeased the president, and that this is part of Chavez’s effort to take control of the judiciary and silence dissent.[2]

When considered even-handedly, the arrest of Judge Afiuni for illegally allowing a wealthy banker to be released from custody and thus flee the country reflects the government’s efforts to establish the rule of law in the historically corrupt banking sector and justice system. It also brings to light deep-rooted problems in Venezuela’s judiciary, indicating that there is much more to be done to fully correct these problems.

What Occurred?

Here’s what happened: In 2007, Venezuelan authorities arrested Eligio Cedeño, the former president of two banks, on the charge of stealing $27 million from the state’s foreign currency administrative agency, CADIVI, through a false import contract.

Last December, the government stepped up its investigations of corruption in the banking sector, leading to the arrest of 10 bankers for fraud and the liquidation or nationalization of eight banks that had violated national banking laws – including both of Cedeño’s former banks, Banco Canarias and Banco Bolivar. Three bank executives fled the country to avoid charges, so the government placed temporary international travel prohibitions and seized the assets of nearly thirty other bankers who were under investigation.[3]

In the middle of all of this, on December 10th, Judge Afiuni changed the conditions of Cedeño’s arrest warrant to allow him to be freed from custody. More importantly, she did so in an unannounced hearing without notifying the prosecution from the Attorney General’s office, in violation of the penal procedural code. Cedeño was released from custody and, days later, he turned up in Miami, where he was detained by U.S. immigration authorities for illegally entering the country.[4]

Had Afiuni’s only infraction been a faulty judicial procedure, then she would not have been arrested. Rather, she would have been disciplined by the Supreme Court according to its own code of conduct, a procedure mandated by the 1999 Constitution in order to assure the independence of the Judicial Branch. However, there was evidence that Afiuni had conspired to help Cedeño avoid facing the charges amidst the escalating fraud scandal in which he was implicated. So, national prosecutors brought charges against Afiuni for conspiracy, which warranted her arrest.[5]

It is important to point out that neither Judge Afiuni nor Eligio Cedeño were campaigning against or criticizing the government. Those who spin the issue as the silencing of government critics are wrong and guilty of deliberately misleading the public. The judge and banker were arrested for corruption and fraud, respectively, and they will go to trial like other citizens.

It is very hypocritical for the same media outlets who say there are political prisoners whenever the government takes effective measures against corruption and crime to also condemn the government for not doing enough about corruption and crime, depending on which critique is most convenient at any given time.

Nonetheless, it must be pointed out that there were problems related to the arrest of Cedeño and Afiuni. For example, Romero refers to three U.N. human rights lawyers’ critique of Cedeño’s detention. The critique centered on the fact that Cedeño’s detention lasted for nearly two years before his trial began, constituting an infraction upon his right to an expedient trial.[6] Indeed, delayed trials have long been and continue to be a problem in Venezuela.

But this is not evidence of state-directed persecution; it reflects the inefficiency of the judicial process as a whole. Such systemic problems must be distinguished as such and analyzed in detail, in the context of the government’s comprehensive judicial reform measures.

The Venezuelan Judicial System

The Venezuelan judicial system has a huge problem with corruption that has undermined the rule of law and served the interests of the repressive ruling two-party duopoly for decades preceding Chavez. Several infamous state-ordered massacres of political dissidents throughout the 1980s remained in complete impunity until now, and the Chavez government is investigating the events and locating the bodies of the victims.[7]

The corruption persists today, and there are still victims, but they aren’t the ones highlighted by the opposition and their international media allies. They include the more than 220 rural organizers who, in their campaigns to gain pieces of land in accordance with the government’s 2001 Land Law, have been killed by assassins who serve the interests of large landowners.[8] These rich, conservative landowners use their money to wield extraordinary influence on the courts and regional government functionaries, and as a result only a handful of people have gone to jail for these crimes.[9]

Not surprisingly, these landless farmers are not highlighted in the mainstream media, at least not with genuine concern for their struggle. Rather, their murderers are defended against so-called government-backed “invasions” that threaten private property.[10]

Considering this context, Judge Afiuni’s case reflects two major problems in the justice system: Her treatment while in prison and the possibility of intervention by other branches of the government in her arrest.

Jails

Romero’s article suggests that Afiuni is being persecuted by being placed in a bleak cell in the same prison with inmates who she sentenced or who are just angry at the judicial system she represents. To be clear, no evidence has been presented that Afiuni’s right to due process has been violated, or that she has been deprived of information or a lawyer, or other such rights, as Romero’s tone may imply.

The Venezuelan prison system has been notoriously overcrowded, poorly maintained, corrupt, and dangerous for decades, if not longer. Bloody prison clashes and uprisings marked the 1990s, along with a record prison population of 32,000 in 1992. The Chavez government launched a prison humanization program in 2006, bringing better health care, sports facilities, and music lessons to many jails.[11] However, prisons remain overcrowded with an average population of more than 20,000 over the past ten years, and there was a recent spike in the inmate population due to the government’s increased anti-crime measures. As many as two-thirds of the prisoners have been awaiting trial at certain moments, and hundreds of prisoners are killed in fights each year.[12]

Certainly, a judge should not get a cosier cell just because of her socio-economic class. So, if one is to complain about Afiuni’s rights as a prisoner in this context, one should point out that all prisoners need better programs to help them be rehabilitated and re-integrated into society. Afiuni’s comment to the New York Times that she feels like she’s in “hell” is not evidence of any direct state-led attack against her in particular, but rather an indication that there is much more to be done to improve the Venezuelan prison system.

Judicial Independence

Another important issue is whether judicial independence was upheld in Afiuni’s case. Soon after Afiuni allowed Cedeño to be released, National Assembly Legislator Carlos Escarrá, who is a constitutional lawyer and a former Supreme Court Judge, publicly denounced Afiuni. “She was an accomplice of a crime, and what’s more, she facilitated Cedeño’s escape,” said Escarrá. “Justice should be equal for everyone. Just as someone who robs a piece of bread is put in jail, in the same way a banker or a businessman must receive the full weight of the law,” he said.[13]

A week later, after Cedeño turned up in Miami, President Chávez expressed his outrage that a judge would be implicated in directly contradicting the anti-corruption efforts in the justice system. He said Afiuni should spend thirty years in prison. “She violated the law, in the first place, because no judge can conduct a hearing without the prosecution present... she is in jail, and I demand harshness against this judge,” said the president.[14]

Do these public declarations coming from the Legislative Branch and the Executive Branch constitute interventions in the Judicial Branch, in violation of the national constitution? The Red de Apoyo para la Justicia y la Paz, an independent human rights organization in Caracas, said this is debatable.

“One thing is what a person states publicly about a case. There is nothing wrong with a politician making a statement that someone should be put in jail,” General Coordinator Pablo Fernández told Venezuela Analysis last week. “Another thing is the reaction within the judicial branch. Was the declaration about Afiuni understood and reacted to as an order? Or did the Attorney General’s Office follow the normal procedures for such a case?”[15] So far, it appears prosecutors have followed procedural norms for a judge charged with a crime.

On another side of the issue of judicial independence, an opposition-aligned human rights group in Caracas, PROVEA, pointed out in its 2009 Annual Report that there is a coincidence between the declarations of functionaries of the Executive Branch and some of the actions of the Supreme Court, the Attorney General’s Office, and the Public Defender’s Office.[16]

Such a coincidence in itself does not constitute a violation of judicial independence. It is necessary to look at the cases themselves for evidence that the president’s declarations arbitrarily influenced or undermined justice.

For example, PROVEA says 509 political demonstrators have been temporarily detained or arrested over the ten years of the Chavez administration. The organization calls them “political prisoners and victims of political intolerance,” and also victims of “the use of judicial functionaries as instruments of intimidation,” implying that the governing political party intervened in the judicial branch.[17]

Local news reports confirm that some Venezuelan opposition protests are peaceful and some are violent, and some start out peaceful and then turn violent. Peaceful protests occur regularly with no police repression. To the contrary, police cordon off the route until the march is finished. However, eye witness accounts confirm that at the violent marches, which in recent years have mainly been led by opposition student groups, the demonstrators wage coordinated assaults on police using Molotov cocktails, homemade weapons, slingshots, rocks, glass, and the occasional firearm. Police respond to the violent assaults with plastic pellets and tear gas, and the students retreat to their university campuses, where the police do not enter because it is prohibited by law. Interspersed between violent assaults on the police, groups of unarmed protestors kneel before the police with their hands in the air, posing a non-violent victim image for the media.[18] The mainstream media, including the New York Times, fall right into line by providing false news and distorting the events to fit their editorial line, claiming that the Chavez government represses peaceful protestors.[19]

Any demonstrator that pulls a gun or a bomb on police in the U.S. and many other countries is quickly taken down by a hail of bullets. But in Venezuela, such protestors are temporarily detained or arrested, if that.

The fact that President Chavez publicly condemns such violent protests when they occur, and on one occasion encouraged the police to throw tear gas at them, hardly seems to constitute a violation of judicial independence, or of the demonstrators’ right to justice. It seems very unlikely that Chavez’s comments really propelled the police to act and the judges to rule other than they already would have, or more harshly than they should have.

The Government’s Judicial Reform

It is clear that Afiuni’s arrest is presented to make it look like targeted state persecution, but it is really the result of the government’s efforts to correct longstanding systemic problems. It is also clear that opponents of the government use the argument of political persecution to defend their political allies when they commit crimes. In addition to these two issues, some critics also say the government’s judicial reform effort itself has violated judicial independence.

Shortly after Chavez took office in 1999, a Judicial Restructuring Commission was created and 80% of the country’s judges were removed for being corrupt. They were replaced by provisional judges who were appointed by the commission and were supposed to be temporary.[20] However, PROVEA pointed out in its Annual Report that as of 2008, only 51% of the judges had been reviewed and granted full judgeships, while 49% remained provisional.[21] It could be argued that those 49% may be influenced by the wishes of the government that put them in place. Furthermore, part of the reason the process of reviewing provisional judges has taken so long is that many were found to be corrupt and were deposed, and new ones were put in their place. This constant shuffling of judges has, unfortunately, interfered with the expediency and the objectivity of many trials, a fact that has also garnered criticism.

The 2004 Law of the Supreme Court has also been the subject of debate regarding judicial independence. After the Supreme Court condoned the April 2002 coup d’état against Chavez by ruling that it was not a coup, the 2004 law was passed in an effort to reform the clearly politicized Supreme Court. This law, among other things, permitted the National Assembly to appoint and revoke judges with a simple majority vote, if a two-thirds majority vote is not achieved after three rounds of voting and debate. This power, critics say, seems to make the Supreme Court overly subordinated to the political alignment of the National Assembly, which was and remains mostly pro-Chavez.[22]

To make the reform process more efficient and effective, the government launched a second surge of reform efforts in 2005. A code of ethics was established, and municipal courts were created to expedite the processing of cases and improve citizens’ access to justice. Numerous new commissions were created to improve discipline within the justice system and root out bribery, corruption, violations of due process, and other common infractions. One such commission, the National Justice System Commission, was made up of representatives from the National Assembly, the Supreme Tribunal of Justice, the Ministry of Justice and Internal Affairs, police forces, the prison system, the Attorney General’s office, the Public Defender’s office. The commission was tasked with coordinating state policies for the improvement of the system.[23] In its 2009 Annual Report, PROVEA criticized that the mix of branches of the government present on the commission “institutionalizes a permanent factor of intervention by the rest of the powers in the judicial branch.”[24]

Unfortunately, despite these efforts at reform, corruption is still widespread. A 2009 poll of Venezuelan judges, carried out by the human rights group Development and Justice Consortium, showed that only a third of the judges think judges who accept bribes are sanctioned, and only half the judges said judges who violate the norms are fired.[25]

These criticisms regarding judicial independence have some basis and must be considered, but they do not at all prove that Judge Afiuni’s arrest was an example of persecution or silencing of government opponents, nor that such persecution is a growing trend in Venezuela. They do, however, highlight the difficulty – almost the paradox – of intervening in a politicized judicial system with the intention of establishing judicial independence.

Conclusions

In his April 3rd article for the New York Times, Romero manipulated and distorted the facts about Afiuni’s case to fit the Times’s agenda of impeding honest news and discussion about Venezuela, driving forward the informational sabotage against the Chavez government that is widespread in the mainstream international media.

Romero asserted that Judge Afiuni and Eligio Cedeño were political prisoners. This is clearly inaccurate, especially since no evidence was presented that they were politically active. His piece also implied, by omission of sufficient context, that the Chavez government is the primary cause of the problems in the judicial system. This is also inaccurate and disingenuous. Romero even went so far as to implicitly compare Afiuni to the Dalai Lama at the end of his article, confirming the Times’s lack of seriousness when addressing these issues.

Romero’s article is an insult to the real political prisoners of Latin America – past and present – who have been tortured, murdered, and disappeared by dictators and neo-liberal regimes that used the justice system as a repressive tool to eliminate opponents. And, Romero’s article distracts his international audience from any constructive discourse about the problems in Venezuela’s justice system and how to overcome them, in the context of this gruesome history.

The Venezuelan government has made efforts at an integral, sustainable reform of the judicial system. This hasn’t been completely successful so far. But the response of the opposition – knee-jerk condemnation of every effort the government makes at reform, placing all the blame on the Chavez government for the problems in the judicial system, and claiming to be political prisoners – is destructive and does not help to solve Venezuela’s historic judicial system problem.

Notes

[1] “Human Rights in Venezuela,” Embassy of the Bolivarian Republic of Venezuela to the United States, February 24, 2010, http://www.embavenez-us.org/factsheet/FS-HR%20in%20Venezuela02242010.pdf

[2] Romero, Simon, “Criticism of Chávez Stifled by Arrests,” The New York Times, April 3, 2010, http://www.nytimes.com/2010/04/04/world/americas/04venez.html?scp=1&sq=afiuni&st=cse

[3] Suggett, James, “Venezuela Seizes Assets of Bankers Charged with Fraud,” Venezuela Analysis, December 12, 2009, http://venezuelanalysis.com/news/4999

[4] Janicke, Kiraz, “Venezuela to Demand Extradition of Banker Detained in the U.S.,” Venezuela Analysis, December 22, 2009, http://venezuelanalysis.com/news/5024

[5] Red de Apoyo General Coordinator Pablo Fernández Blanco, personal interview, April 6, 2010.

[6] http://www.un.org/apps/news/story.asp?NewsID=33273&Cr=judges&Cr1

[7] Suggett, James, “Venezuela Advances Investigations of Fourth Republic Massacres,” Venezuela Analysis, October 1, 2009, http://venezuelanalysis.com/news/4830

[8] Suggett, James, “Venezuelan Farmer Activists March Against Killings by Estate Owners,” Venezuela Analysis, October 3, 2009, http://venezuelanalysis.com/news/4838

[9] According to Adriana Ribas, a member of the Ezequiel Zamora National Campesino Front, six material authors and one intellectual author of these assassinations have been arrested. Farrel, Jojo; Fox, Michael; and Martinez, Carlos, Venezuela Speaks!: Voices from the Grassroots (Oakland: PM Press, 2010), 58.

[10] Examples are abundant, as they appear regularly in a series of large-scale, nationally circulated opposition newspapers, but here’s one from last year. “Denuncian invasiones masivas en Puerto Píritu,” El Universal, September 2, 2009, http://noticias.eluniversal.com/2009/09/02/pol_art_denuncian-invasiones_1548622.shtml

[11] The following article cites Human Rights Watch, NACLA, and other sources on the subject. Janicke, Kiraz, “Venezuela Moves to Humanize Prison System Amidst Hunger Strikes,” Venezuela Analysis, March 11, 2008, http://venezuelanalysis.com/news/3260

[12] Programa Venezolano de Educación-Acción en Derechos Humanos, “Informe Annual 2009: Derechos de las Personas Privadas de Libertad,” PROVEA, 2009, http://www.derechos.org.ve/proveaweb/wp-content/uploads/18-c%C3%A1rceles.pdf

[13] “Escarrá fustiga a jueza del caso Cedeño por ser ‘cómplice de un delito’,” Noticias24, December 15, 2009, http://www.noticias24.com/actualidad/noticia/128996/escarra-fustiga-a-jueza-del-caso-cedeno-por-ser-complice-de-un-delito/

[14] “Chávez solicitó pena máxima para jueza que liberó a empresario Eligio Cedeño,” Agencia Bolivariana de Noticias, December 11, 2009, http://www.abn.info.ve/noticia.php?articulo=211496&lee=4

[15] Red de Apoyo General Coordinator Pablo Fernández Blanco, personal interview, April 6, 2010.

[16] Programa Venezolano de Educación-Acción en Derechos Humanos, “Informe Annual 2009: Derechos a la Justicia,” PROVEA, 2009, p. 249, http://www.derechos.org.ve/proveaweb/wp-content/uploads/13-justicia.pdf

[17] ibid.

[18] Gabriel, George and Suggett, James, “Venezuelan Students and Security Forces Clash Violently as Referendum Debate Intensifies,” Venezuela Analysis, January 28, 2009, http://venezuelanalysis.com/news/4148

[19] Farrell, Jojo, “US Media Bias and Recent Student Violence in Venezuela,” Common Dreams, November 15,2007, http://www.commondreams.org/archive/2007/11/15/5247

[20] Wilpert, Gregory, Changing Venezuela by Taking Power: The History and Policies of the Chavez Government (New York: Verso Books, 2007), 45.

[21] Programa Venezolano de Educación-Acción en Derechos Humanos, “Informe Annual 2009: Derechos a la Justicia,” PROVEA, 2009, p. 248, http://www.derechos.org.ve/proveaweb/wp-content/uploads/13-justicia.pdf

[22] Wilpert, 47.

[23] Bolivarian Lawyers Front Member Alexander Eñaranda, personal interview, April 6, 2010.

[24] Programa Venezolano de Educación-Acción en Derechos Humanos, “Informe Annual 2009: Derechos a la Justicia,” PROVEA, 2009, p. 248, http://www.derechos.org.ve/proveaweb/wp-content/uploads/13-justicia.pdf

[25] “80% de jueces no confían en métodos para sancionarlos,” El Universal, December 21, 2009 http://www.eluniversal.com/2009/12/21/pol_art_80-de-jueces-no-con_1704275.shtml