Venezuela’s justice system has been a compounding nightmare at least since the 2004 court-packing law, which purged the system of independent judges while allowing the appointment of unqualified regime sycophants. The removal and criminal trial of Judge Maria Lourdes Afiuni in 2009, essentially for refusal to obey the President’s commands, signalled complete annihilation of judicial independence in favour of the whims of the president.
It is thought that between forty and fifty civilians are presently accused before courts martial.
Since then, it would be hard to conceive of a judicial system more cravenly subordinate to the Executive, more blithely willing to oblige, by producing bizarre verdicts supported by incoherent reasoning, than that of Venezuela.
Even so, the regime seems to be abandoning the civilian system altogether, replacing it with military courts in political cases. It is thought that between forty and fifty civilians are presently accused before courts martial. Among these are numerous students, union members and members of indigenous minority communities caught in protests, as well as Professor Santiago Guevara, an economist at the University of Carabobo who is charged with “treason” because he wrote academic articles which recommend economic policies for a post-Chavista Venezuela.
It will not surprise anyone that courts martial in such cases are in direct violation of the 1999 Venezuelan Constitution. Article 261 of that foundational document establishes that the jurisdiction of a military court is limited to offences of “a military nature” only. The InterAmerican Court of Justice has interpreted an identical term in Chilean military law to mean that the jurisdiction of military courts is limited to the prosecution and judgment concerning crimes committed by military personel in active service.
While the special demands of military service may justify specialized courts with modified procedures, any departure from the general rule of civilian court jurisdiction can be justified only in the circumstances of active service.
In that case, Palamara-Ibarne v. Chile, the court derived the limiting principle from the InterAmerican Convention on Human Rights, as well as other international guarantees of fair trial and due process. While the special demands of military service may justify specialized courts with modified procedures, any departure from the general rule of civilian court jurisdiction can be justified only in the circumstances of active service.
There is little doubt that any independent adjudication would reach a similar conclusion in a case involving the Venezuelan constitution. Given the supine behaviour or ordinary Venezuelan justice, though, and the willingness of the Supreme Court to not only approve of, but also participate in, parodies of the Constitution, what reason might the regime have for trying people like Professor Guevara and other dissidents by way of courts martial?
Military trials are standard features of dictatorships, though not invariable ones. Franco and Pinochet used them extensively, while both Stalin and Hitler used secret-police “trials” to get rid of troublesome dissidents, including military officers. It may well be that the militarization of the Venezuelan justice system is simply an element of the militarization of the Bolivaran revolution as a whole. Once you have a general in charge of chicken, and one responsible for toilet paper, the takeover of the ordinary court system too might even seem reasonable.
Generally speaking, courts martial are unfair to accused persons because all courtroom roles are played by active military personnel, who are subject to discipline or removal by the next officer up the chain of command. The colonel hearing evidence as a judge can be disciplined by his superior, and the chain of command can make substantive or tactical demands upon both prosecution and defence counsel as well.
In February, Karla Moreno, a civilian judge who was unwilling to follow the regime’s demand that she jail journalists who used a drone to photograph an opposition demonstration, announced in open court that she was quitting her job.
With 78% of ordinary judges being temporary appointments, easily removable if they show independence, there is probably no more judicial security of tenure in that system than in the military one. But the civilian courts have shown a tendency towards leakage that may be embarrassing to those in power.
In February, Karla Moreno, a civilian judge who was unwilling to follow the regime’s demand that she jail journalists who used a drone to photograph an opposition demonstration, announced in open court that she was quitting her job. She slammed down her case file and walked out. In October 2015, the prosecutor in the case of Leopoldo Lopez, Franklin Nieves, brought in a conviction against Lopez in ordinary court, then promptly fled the country. Soon, he turned up in the United States, saying that he and his family had been under threat from SEBIN throughout the prosecution, that evidence had been concocted, and that Lopez was not guilty of any crime. The whole trial was a sham, he said. Venezuela’s chief prosecutor responded that these allegations were “too vague” to be investigated.
In perhaps the most embarrassing instance of all, the Chief Justice of the Court of Criminal Appeals, Eladio Aponte Aponte, fled to the US, explaining to the media that the Supreme Court of Venezuela was directly under the control of the Executive. He spoke of weekly visits from the Vice President, who would direct the court as to what decisions must be rendered in political cases. Any judge who refused to carry out orders would be removed, “and perhaps worse”, Aponte said. The response of Venezuela’s government was to claim that Aponte–whom they had appointed to the Supreme Court—was a “major drug trafficker”. While that accusation might well be made about many of the leaders of the regime, it does not explain why a Justice of the Supreme Court should be ignored when he speaks about how that same court operates.
The Afiuni case itself was a major international embarrassment for the regime, in substantial part because her lawyers, Jose Amalio Graterol and Thelma Fernandez, were relatively free to speak and agitate on her behalf. Even a criminal prosecution of Graterol on specious grounds did not prevent information concerning Afiuni from being made public internationally. Some would say that the regime’s descent to international pariah status crystalized when Noam Chomsky wrote Chavez to plead that Afiuni be released. Chavez, of course, always knew best, and ignored that advice.
Military personnel who staff those courts are not free to step down or leave for another country.
Given that history, what advantage does the regime gain when it uses military courts?
While courts martial may not provide any more certainty of result than the deeply compromised civilian courts, they do offer one clear benefit: Military personnel who staff those courts are not free to step down or leave for another country. The penalty of desertion is available to use on anyone tempted to do so; an absence of six days, easily provable, is enough to justify a four year jail sentence according to the Organic Code of Military Justice. Similarly, the requirement that all participants be military people (cf. s. 104) operates as a substantial interference with the right to chose counsel of one’s choice.
Those factors may be enough to convince decision-makers to transfer political cases to military courts. But the downside, to which they are apparently blind, is that all such cases must be treated as regime-orchestrated travesty.