The Old Trick of Using Political Prisoners as Bargaining Chips

The regime said it would pardon 110 people, including some political prisoners. But this is what Maduro’s "pardon" really means beyond the numbers and the propaganda

A joy for those released—yet very little that actually changes.

Photo: Sofia Jaimes Barreto

For the past few days, a sliver of good news has surprised Venezuelans: the Maduro regime announced that 110 people would receive a presidential pardon. As with anything resembling good fortune in a country fully accustomed to calamity, it is taken with skepticism, and for valid reasons. There’s much that is confusing or misleading about the announcement. First, only 50 of the 110 individuals mentioned were political prisoners. Prior to the pardon, there were 386 political prisoners–based on data from Venezuelan NGO Foro Penal; currently, 336 are still detained. The appalling judicial system that has arbitrarily detained over 15,000 people since 2014 remains untouched. Lastly, the fear that the Maduro regime will use this action to further consolidate his grip on power is hard to shake off. 

At the same time, 39 political prisoners that were in jail for no valid legal reasons are now back home, with their families, whereas another 11 should no longer remain under house arrest. Dr. José Alberto Marulanda was detained when security forces broke into his home looking for his romantic partner, a member of the Armed Forces suspected of plotting against Maduro. When they couldn’t find her, they took him. He was brutally tortured in detention, not just to coerce him to disclose his partner’s whereabouts, but also to send a chilling message: this is what will happen to the family members of military officers suspected of plotting to overthrow the regime. Seeing him hug his daughters after more than two years of arbitrary detention is invaluable. Maury Carrero was held incommunicado for months; at the moment of her release from detention her parents cried with joy, moving everyone around them to tears. Nicmer Evans, a journalist and political scientist detained for retaliation after having flipped his support for the ruling party, is now sleeping in his apartment with his wife and children, as opposed to the hard floor of a jail cell. Roberto Marrero, Juan Guaido’s chief of staff, was also released from detention after being forced to assert that he was not physically tortured. However small in the overall scheme of things, those families today recovered one of the most precious values: their freedom. 

Déjà Vu All Over Again

Some sort of presidential intervention to release political prisoners has taken place in Venezuela a few times before. Back in late 2007, then-president Hugo Chávez decreed an amnesty and pardon of convicted individuals involved in the events of April 2002; let us remember the ones not included then, like Iván Simonovis, who recently had to flee, and several former agents of the Metropolitan Police who remain detained even despite having completed their sentences. Most recently, Maduro made a televised political show in June 2018, announcing the release of multiple political prisoners just weeks after holding a presidential election that was not recognized by many in the international community. Then, as now, the lists were confusing: 40 people were mentioned in 2018, whereas only 17 of them were political prisoners.

This time around, a few months ahead of the scheduled elections of the Venezuelan parliament–and just days prior to the deadline to register candidates, the announcement uses a novel figure: presidential pardons –‘indultos’– of people that have not been convicted. 

A pardon implies wrongdoing and political prisoners argue that they have not committed a crime, thus there is nothing to be pardoned for.

Whether the law allows for this modality, and its specific consequences, is a cause for speculation and debate. There is consensus among Venezuelan criminal law experts that the pardon is a prerogative of the president to condone a criminal sentence. It is not so clear how it operates with a pending case, before a judge has reached a conviction. After all, a pardon implies wrongdoing and political prisoners argue that they have not committed a crime, thus there is nothing to be pardoned for. A section of the law found in article 29 of the Organic Criminal Procedure Code provides the basis for a presidential pardon during a pending trial. This modality had never been used in Venezuela. For these reasons, it is hard to speculate on its precise effects. In a country that respects institutions, it would be safe to assume that the decree implies no possible further prosecution on the basis of the pardoned crimes, but that is far from the case of Venezuela.

Multiple Issues With the Pardon

If we ignore for a second that Maduro is an illegitimate de facto ruler, an argument can be made that he can issue pardons on pending criminal cases. Yet, the decree from August 31st even involves investigations that had not made it to a court of law. It pardons people like Antonia Turbay, who received an order for her release from a judge in July 2019. She was still in jail at the whim of the Bolivarian Intelligence Service (SEBIN). What is she being pardoned for? It also pardons Edgardo Parra, a pro-government former mayor of Valencia who was convicted for corruption and is not considered a political prisoner. 

Many legislators were included, ignoring that parliamentarians have prosecutorial immunity. Gilber Caro and Renzo Prieto were in jail and released as a consequence of the pardon. Legislators in exile were also in the list, like Américo de Grazia, Juan Andrés Mejía, Miguel Pizarro, and Carlos Paparoni.

The implementation was far from smooth. After the announcement on August 31st, family members, lawyers and activists were eager to have the prisoners released from multiple penitentiaries. The decree, however, did not appear in the Official Gazette and the directors of some prisons chose to wait for publication. The regular process –if that were a thing in Venezuela– requires a release order to be issued by the criminal judge assigned to the proceedings—which is precisely what Foro Penal attorneys tried to obtain. They even provided a ream of paper to court staff, as they had run out of paper to print the orders.

This decision does nothing to bring Venezuela closer to respecting the rule of law and overtly disregards the much-needed systemic change. 

The most harrowing number is not about those within the list, but with those excluded. 23 of those included were free from detention under supervision, their criminal cases still pending. And this is the group that helps us grasp the sheer volume of people arbitrarily detained under Maduro: according to Foro Penal, more than 9,200 people who were detained for political reasons have been released under supervision since 2014, and their criminal cases are still pending. Why were 23 people included and 9,200 excluded? 

A Political Decision

The short answer to many of the questions that arise from the presidential pardons is that there is no rational legal basis for the decision, this was a political maneuver. In the presence of a legal basis, there would be a clear criterion to include some people and exclude others from the benefit. Attempting to discover such criteria in this decree is an exercise of banality: it does not exist. That is why 13 indigenous Pemon remain behind bars. That is why 336 political prisoners are still in jail. That is whydeputy Juan Requesens was released from detention a few days prior to the pardon, and his co-defendant, Emirlendris Benítez, is still in jail: because legal reasoning and common sense is not part of the equation. 

This decree does absolutely nothing to alter the systematic and generalized persecution of political opponents. After 2018, when several political prisoners were released with fanfare, the use of the judiciary to imprison those who are inconvenient to the regime only increased. There is no indication that this time it will be any different. The judges, the prosecutors, the security forces, the armed militias, even the government-appointed defense attorneys who blatantly side with the prosecution, are entirely untouched. 

The political calculations used to bring about this welcome –although minimal– relief, included making sure that the regime’s ability to continue imprisoning for political reasons remained unscathed. This decision does nothing to bring Venezuela closer to respecting the rule of law and overtly disregards the much-needed systemic change. The political prisoners were, once again, used as bargaining chips. We are yet to learn the complete extent of what they were exchanged for.