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Venezuela: Constitutional and legislative recognition of the principle of judicial independence

The independence of the judiciary must be guaranteed by the State and enshrined in the Constitution or the law.[1]

International standards prescribe, as a safeguard of judicial independence, that judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.[2] 

The Inter-American Commission of Human Rights has observed that independence of justice must be recognized in the constitutions and national laws of States, and that the State must be organized in a way that guarantees its independence.[3] The principle of mutual cooperation between branches of Government, provided in some constitutions of the region, should not undermine the independence of the judiciary, for example by expecting that its decisions or actions are taken only in accordance with the policy of the government in power.[4] 

The Statute of the Iberoamerican Judge states that “[t]he other powers of the State … must respect and make the independence of the judiciary efficient”.[5]

 

The Constitution of Venezuela recognizes the principle of separation of powers between different branches of the Government, and the need for cooperation between them to achieve the goals of the State.[6] The Constitutions and laws set out to this end, as described in further in other sub-sections below, provisions about the appointment and promotion of judges, financial autonomy, and judicial ethics and discipline.

However it is of concern that as a measure purported to guarantee judicial independence, the Constitution prohibits judges to form professional associations to guarantee their independence.[7] In contrast with international standards, which guarantee the right to form associations to represent their interests, to promote their professional training and, explicitly, “to protect their independence”,[8] the Constitution of Venezuela prohibits this, purportedly as a measure to protect judicial independence.

As described in Section A above, after the adoption of the Constitution in 1999, the National Constituent Assembly enacted the Decree creating the Transitional Regime of Public Powers,[9] which among other things, established the Commission for the Functioning and Restructuring of the Judicial System (CFRJS), whose members were appointed by the National Constituent Assembly and which assumed the competences of the Judicial Council during the transitional phase.[10] In practice, the creation of the CFRJS meant a division of the competences attributed by the Constitution to the Executive Directorate of the Judiciary. The CFRJS was in charge of the governance and administration of the courts, while the Executive Directorate administered the finances and human resources of the Judicial Power.[11]

The principle of mutual cooperation between branches of the government has been applied in a manner that severely affects the independence of the judiciary, as the government reads into it an obligation for judges to follow its instructions. A 2009 Inter-American Commission report on the state of democracy in Venezuela observed that a number of judges have been removed from office after they took decisions affecting the government interests,[12] without following procedure and without there being a serious grounds of misconduct,[13] as enshrined in international standards. Likewise, the attacks from the Executive Power against the judiciary have become a systematic practice,[14] creating an “atmosphere of fear amongst judges.”[15]

The case of Judge María Lourdes Afiuni Mora is emblematic. She was detained in 2009, a few hours after ordering the release on bail of Mr Eligio Cedeño, in part based on a decision by the UN Working Group on Arbitrary Detention, which had determined that the period of his detention had exceeded the maximum term permissible under Venezuelan law and was therefore arbitrary. The next day, then-President Chavez, in a nationwide radio and television broadcast, called the judge an “outlaw”[16] and proclaimed that she should be sentenced to a thirty-year prison term “in the name of the dignity of the country”,[17] a decision he stated to have discussed with the President of the Supreme Tribunal of Justice. Following this public instruction from the head of the Executive Branch, charges were filed against Judge Afiuni alleging corruption, abetting an escape, criminal conspiracy and abuse of power, and she spent two years detained in prison pending trial, during which time she was allegedly raped and suffered other types of cruel, inhuman and degrading treatment, until in February 2011 she was placed under house arrest on medical grounds, from which she was eventually released, albeit with restrictive conditions,[18] on 14 June 2013.

Meanwhile, the criminal trial against judge Afiuni had started in November 2012. However, after frequent procedural delays caused by the presiding judge and the prosecution failing to appear at the trial for various inadequate reasons, in October 2013 the prosecution’s failure attend an evidentiary hearing caused the trial to be interrupted and annulled. At no stage of the trial had the prosecutor produced sufficient evidence to substantiate the allegations against judge Afiuni. The court has ordered a retrial, but as of November 2014 it is unclear when this will be held.

In parallel with the criminal proceedings, on 11 December 2009 the Judicial Commission suspended judge Afiuni without pay, without any prior proceeding or inquest, “until the General Inspectorate of Courts finishes its investigation”. She also faces two disciplinary proceedings, originating from complaints submitted by the General Inspectorate of Courts in 2012, as a result of investigations that were opened after her suspension. Judge Afiuni has challenged her suspension and the disciplinary actions brought against her in a petition pending before the Political-Administrative Chamber of the Supreme Tribunal of Justice. Furthermore, in June 2013 Judge Afiuni presented a request to the Executive Directorate of the Judiciary for the immediate reinstatement of her position as judge. As of 18 November 2014, however, she remains suspended.[19]

The government has held up her case as an example of what could happen to other judges who do not act in accordance with its wishes.

 

Footnotes    (↵ returns to text)

  1. 1. UN Basic Principles on the Independence of the Judiciary, Principle 1.

    The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

  2. 2. UN Basic Principles on the Independence of the Judiciary, Principle 9.

    Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.

    The Statute of the Iberoamerican Judge explicitly recognizes that “[t]he impartiality is compatible with the recognition of freedom of judges association apart from the exceptions established by the Constitution or legislation of each country” (Article 36).
  3. 3. Inter-American Commission of Human Rights, Guarantees for the Independence of Justice Operators, OAS Doc. OEA/Ser.L/V/II. (2013), para. 31.

    In keeping with the Basic Principles on the Independence of the Judiciary, at the institutional level “[t]he independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country” and it is essential that such independence be guaranteed in law at the highest possible level; hence, this
    principle, “even if guaranteed in the Constitution, must also be given effect at the legislative level.” The Commission believes that the constitutions and national laws must observe such principle and the entire justice system must be organized to guarantee the independence of the judicial branch. As the United Nations Human Rights Committee observed, “a situation where the functions and competences of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal.” (footnotes omitted)

  4. 4. Inter-American Commission of Human Rights, Guarantees for the Independence of Justice Operators, OAS Doc. OEA/Ser.L/V/II. (2013), para. 33.

    The Commission observes that some constitutions of the States of the region provide that the branches of government shall mutually collaborate or cooperate. These provisions are ambiguous because it is unclear how that collaboration or cooperation is to materialize; equally unclear is the implication this has for the independence of the judicial branch, especially when the cooperation is to be “harmonious”. A broad or ambiguous formulation of this principle of cooperation or collaboration among the branches of government might suggest that the judicial branch is expected to conform to certain behaviors or adopt certain decisions, or that some of its decisions or actions are expected to conform to the policy of the government in power, for the sake of harmony among the branches of government. (footnotes omitted)

  5. 5. Statute of the Iberoamerican Judge, Adopted by the VI Iberoamerican Summit of President of Supreme Courts and Tribunals of Justice (2001), Article 2.

    The other powers of the State and, generally speaking, all the national or international authorities, institutions and organisms, as well as the various groups and social, economic and political organisations, must respect and make
    the independence of the Judiciary efficient.

  6. 6. Constitution, Article 136.
    Public Power is distributed among Municipal Power, that of the States Power and National Power. National Public Power is divided into Legislative, Executive, Judicial, Citizen and Electoral.
    Each of the branches of Public Power has its own functions, but the organs charged with exercising the same shall cooperate with one another in attaining the ends of the State.
  7. 7. Constitution, Article 256.
    In order to guarantee impartiality and independence in the exercise of their official functions, magistrates, judges, prosecutors in the Office of Public Prosecutions and public defenders, from the date of their appointment until they leave office, shall not be permitted, otherwise than by exercising their right to vote, to engage in partisan political, professional association, trade union or similar activism; nor to engage in private activities for profit which are incompatible with their official functions, either directly or through any interposed person; nor to perform any other public functions, with the exception of educational activities.
    Judges shall not be permitted to form associations among themselves.
  8. 8. UN Basic Principles on the Independence of the Judiciary, Principle 9.

    Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.

  9. 9. Decree creating the Transitional Regime of Public Powers (“Decreto mediante el cual se dicta el Régimen de Transición del Poder Público”), Official Gazzette 36.859, 29 December 1999.
  10. 10. Article 3 of the Decree stipulates that the provisions of the transitional regime will remain in force “until the effective establishment of the organization and functioning of the institutions foreseen by the approved Constitution, in conformity with legislation approved to this effect by the National Assembly”. The CFRJS was to exercise disciplinary responsibility until the National Assembly adopted the pertinent legislation (Decree, Article 23). Despite the fourth transitional provision of the Constitution instructing the National Assembly to adopt legislation related to the judicial system within a year of its installation, the Assembly did not and the CFRJS exercised disciplinary responsibility until 2010. See sub-section 4, below.
  11. 11. International Commission of Jurists, Strengthening the Rule of Law in Venezuela (May 2014), p. 9.
  12. 12. Inter-American Commission of Human Rights, Democracy and Human Rights in Venezuela, OEA/Ser.L/V/II, Doc. 54, para. 285.

    The information received by the Commission in recent years yields a long list of judges who have been removed after handing down decisions that affected government interests. Although it is not the task of this report to determine whether in each specific case the removal was arbitrary and whether the judge in question should be reincorporated into the judiciary, the Commission will refer to certain cases in which, in light of the available public information, there is evidence of political interference in the decision to remove a judge.

  13. 13. Inter-American Commission of Human Rights, Democracy and Human Rights in Venezuela, OEA/Ser.L/V/II, Doc. 54, para. 239 -252.
  14. 14. Inter-American Commission of Human Rights, Democracy and Human Rights in Venezuela, OEA/Ser.L/V/II, Doc. 54, para. 285 -301.
  15. 15. International Bar Association’s Human Rights Institute (IBAHRI), The Execution of Justice: The Criminal Trial of Judge María Lourdes Afiuni (2014), Executive Summary, p. 3.
  16. 16. “… a judge who frees an outlaw is worse than the outlaw himself.” See Inter-American Commission of Human Rights, Democracy and Human Rights in Venezuela, OEA/Ser.L/V/II, Doc. 54, para. 298, referring to the audio recording of the speech (the link is no longer available, on 18 November 2014).
  17. 17. See Inter-American Commission of Human Rights, Democracy and Human Rights in Venezuela, OEA/Ser.L/V/II, Doc. 54, para. 298, referring to the audio recording of the speech (the link is no longer available, on 18 November 2014).
  18. 18. International Bar Association’s Human Rights Institute (IBAHRI), The Execution of Justice: The Criminal Trial of Judge María Lourdes Afiuni (2014), p. 20.
  19. 19. International Commission of Jurists, Fortaleciendo el Estado de Derecho en Venezuela (2014), p. 24.
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