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Venezuela – Closure of Court violates the independence of the Judiciary

The centre for the independence of judges and lawyers of the International Jurists Commission requested the competent Venezuelan authorities to reinstall the judges of the First Court, who were dismissed in disregards of the due process

17 of November of 2003
Hugo Rafael Chávez Frias
President of the Republic
Palace of Miraflores
Av. Urdaneta. Esq. of Bolero
Caracas, Venezuela
Fax: +58 212 806-3860

Excellency,

The International Commission of Jurists (ICJ) is composed by jurists coming from all the regions and legal systems of the world dedicated to promote the empire of the right and the legal protection of the human rights.

The Centre for the Independence of Judges and Lawyers (CIJL) makes part of the ICJ, its mission being to promote anywhere in the world the independence of judges and lawyers. We would like to take this opportunity to express our utmost surprise in regards to the destitution of all the judges who integrate the First Administrative and Contentious Court, with the consequent closing of this Court. These facts constitute an attack to the independence of the Judicial Power, which are incompatible with international standards.

According to the information we have received, the past 10th of October two of the judges of the First Court, Mr. Juan Carlos Apitz and Mr. Perkins Rocha, were suspended by the Commission of Operation and Reconstruction of the Judicial Power. The apparent reason for the suspension of the judges would have been the previous detention of the driver of one of the judges of the Court, under the charges of "concealment and retention of a public document ". Reports received by the CIJ however reveal that the driver would have limited himself to take, from the Court to an external relater, a file, by order of one of the judges.

This detention was described as arbitrary by the Hall of Penal Abrogation of the Superior Court of Justice on 22nd September 2003. In its sentence, the Hall maintained that illicit acts had not taken place. Consequently, the reason that gave rise to the suspension of the judges was not an illicit conduct and such suspension should have being stopped. The suspension of both judges produced the "de facto" closing of the First Court for lack of quorum.

Later, the 27 of October, the Commission of Operation and Reconstruction of the Judicial Power decided to dismiss the five judges of the First Court, 13 days after receiving denunciations about "inexcusable judicial errors". The dismissed judges questioned this decision considering that the competition to dismiss them corresponds to the Supreme Court, body who appoints them, and not to the Commission. Also, the judges objected the reasons for their destitution to consider that they had not committed any serious offence that justified their removal.

As expressed to Your Excellency in our letter of past 14 of October in the occasion of your verbal attacks against the judges of the First Court, the independence of the Judicial Power is condition necessary for a suitable accomplishment of the right to a fair trial and essential for the rule of law.

One of the essential mechanisms to protect the independence of the Judicial Power is the establishment of procedures to remove judges according to the highest requirements of justice, thus avoiding arbitrary removals subject to criteria that have nothing to do with the correct performance of a judge. In this sense, we would like to call once again your attention upon the basic Principles relative to the independence of the Judiciary adopted by the General Assembly of the United Nations in 1985. These Principles establish clearly that the procedures of removal of magistrates must adjust to the premise of “due process”, stating that a person accused of having committed a crime or an offence must be heard by the judges in charge of the case. In particular, the Principles establish:

Principle 17. All accusation or complaint formulated against a judge for its judicial and professional performance will transact with promptness and impartiality according to the pertinent procedure. The judge will have the right to be heard impartially. In that initial stage, the examination of the question will be confidential, unless the judge asks for the opposite.

Without a doubt a judge, like any other civil employee of the State, must perform his functions with a high degree of responsibility and in agreement with rigorous ethical norms. Also, any civil employees accused to have committed an offence must be put under a procedure in which the facts are exposed and, if responsible, sanctions are to be imposed accordingly. However, this procedure must be made according to the law and in total observance of the international standards that guarantee a fair trial as well as the independence of the Judiciary. In view of the legal nature of the judges of the First Court, who belong to a court of high hierarchy, the expeditious character of their dismissal is alarming. In effect, the destitution of a magistrate, and with more reason of all the judges of a Court, must be the result of a procedure where the right of the defendant is guaranteed before the Judiciary. Also, due to the seriousness that the destitution of a magistrate of high hierarchy implies, the body in charge of the procedure must evaluate in depth the positions and tests against him before arriving at a decision.

Without entering into the legitimacy of the Commission to declare the destitution of the judges of the Court, it is the swiftness of the process which led to the decision that leaves serious doubts with respect to its impartiality and the respect to the procedural guarantees.
The decision of the Commission of Operation and Reconstruction of the Judicial Power after a summary procedure, added to the repeated expressions of Your Excellency and other civil employees of your government about the necessity to remove the judges of the First Court, take us to the conclusion that the removal of the judges and later closing of the Court came against the interests of the government and constitute an attack against the independence of the Court and the Judiciary as a whole.

In this sense, we take the liberty to mention the Principles again, in which all type of interference in the subject is prohibited and is the exclusive competition of the Judiciary:

1. The independence of the Judiciary will be guaranteed by the State and proclaimed by the Constitution or the legislation of the country. All the governmental institutions and those of another nature will respect and accept the independence of the Judiciary.

2. The judges will solve the issues before them with impartiality, based on the facts and in total observance of the law, without being objects of restriction or influences, incentives, illegal pressures, threats or interferences, direct or indirect, of any sectors for whatever reason.

For these reasons, we call upon your government so that it transmits to the competent authorities the necessity of restoring the judges of the First Administrative and Contentious Court, who were dismissed after a procedure that did not fulfil the requirements of the law. Also, in case of procedures of removal of judges are reinitiated, we urge you that these procedures adjust to international standards. Finally, we reiterate our preoccupation owing to the continuous attacks against the independence of the Judiciary on the part of Your Excellency and other civil employees of your government and ask for the cease of these attacks.

Trusting that Your Excellency will pay special attention to these worrisome matters, I take advantage of this opportunity to send my most respectful greetings.

Ernst Lueber
Temporary Secretary General


Cc: Mrs. Blancanieve Portocarrero
Permanent mission of the Bolivarian Republic of Venezuela before the United Nations
Chemin François-Lehmann 1å
1218 Grand-Sacconex
Geneva, Switzerland
Fax: 022 717 0941

Mr. Lucas Rincon Romero
Minister of Interior and Justice
Ministry of Interior and Justice
Av. Urdaneta, Seat MIJ, Floor 1
Caracas, Venezuela
Fax: +58 212 5061557

Sr. Iván Rincon Urdaneta
President of the Supreme Tribunal of Justice
Esquina de Dos Pilitas final Av. Baralt, Foro Libertador
Edif. Tribunal Supremo de Justicia
Caracas, Venezuela
Fax: +58 212 563 8481 / 563 6506

Sra. Marisol Plaza Irigoya
Attorney General
Paseo Los Ilustres, Edif. Procuraduría General de la República
Caracas, Venezuela
Fax: +58 212 693-2998

Sr. Francisco Ameliach
President of the National Assembly
Monjas a San Francisco, Palacio Federal Legislativo
Caracas, Venezuela
Fax: +58 212 409 7029

Sr. Isaías Rodríguez Díaz
Public Prosecutor
Av. México. Manduca a Pelelojo. Edif. Fiscalía General de la República
Caracas, Venezuela
Fax: +58 212 577 2144



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