Venezuela: “The Judiciary is the Executive Arm of the Regime”
By Roberto Giusti | El Universal
Caracas, 12 June 2005 | INTERVIEW with Mónica Fernández: “There is talk of judges without the title of Doctor of Jurisprudence."
The former judge denounces that never before has the judiciary surrendered to the political power to this degree, where it is being utilized as the executive arm of the interests of the regime against anyone who becomes a dissident.
A former judge who has resigned and has been indicted by the Fiscalía (Prosecutor’s Office), a combative criminal law trial lawyer, at the age of nearly 33, Mónica Fernández speaks with the aplomb of a consummate jurist and with a forensic language that flows torrentially, albeit directly and precisely. Last week, in the company of a group of her colleagues, she presented a loaded report, signed by Venezuelan political prisoners, which constitutes a detailed record of the use of the judiciary as a political arm of the regime when it comes time to punish those who, whether they be military, journalists, politicians, trade unionists or men of action, have decided to face a government that they consider is violating principles, rights and guaranties consecrated in the Constitution whose creation was mandated by the chief himself.
Roberto Giusti [RG]: What have been the repercussions to the report presented by you and your group last week concerning the situation of the judiciary in Venezuela?
Mónica Fernández [MF]: At the time that the group of criminal law lawyers got together our intention was to make a joint statement concerning a series of irregularities we had been observing in different penal processes that went on to become progressively politically radicalized starting with the recall referendum in August of 2004, when it as observed that there was a tendency to concentrate the cases among a reduced number of prosecutors from the Ministerio Público (Office of the Attorney General) and of judges. As a result of this investigation we determined the percentage according to which the cases were distributed.
RG: Does that assignment of cases to a determined minority of judges and prosecutors not mean the opposite of what your group is saying, that is to say, that the Judicial Power is being dominated by the Government in just a small proportion?
MF: That is one of the questions we asked ourselves initially and if these prosecutors and judges indeed are concentrating political cases we cannot deny that the rest of the judicial institution might be biased and politicized. There lies the plan of the so-called “judicial revolution” that has brought about 70 dismissals in less than four months, and involves using terror to intimidate judges. The Office of the Attorney General has assumed the same conduct. There are always rumors, toward the end of every month, that prosecutors are going to be dismissed and already at the national level 200 have been removed from their positions, without apparent reasons, and all the while the Office of the Attorney General is unduly prosecuting them under an organic law that is not applicable in determined situations.
RG: In other words, judges and prosecutors who are not identified with the so-called “process” are being dismissed.
MF: Exactly. There is fear within the Judiciary and the Office of the Attorney General, because cases are now being assigned to recently appointed judges. We see, for example, how the Guevara brothers' case was assigned to the Trial Court, in the charge of Luis Cabrera, who is linked politically to the Government. It is clear, therefore, that there is direct and indirect pressure and manipulation by those who manage the Office of the Attorney General and the Judiciary.
RG: According to what you say, what is happening is a massive and definite invasion of the Judiciary by the officialdom.
MF: Yes, but that is not all that is being addressed. Judges and prosecutors who do not meet the minimum requirements for those occupying those positions are being appointed. Back at the Foro Penal Venezolano (Venezuelan Penal Forum) we are doing an analysis of who these judges and prosecutors are. There is talk, although we still do not have convincing evidence, of judges with criminal records for homicide, armed robbery and swindle, when the Ley Orgánica del Poder Judicial (Organic Law for the Judiciary) prohibits persons with criminal records from assuming duties as judge.
RG: You say that your group does not have “convincing” evidence.
MF: Obviously, evidence is easy to obtain, as within the judicial setting we all know each other, and know who is who. There has been a great decline in the quality of the sentencing, as well as in the working skills and credibility of the lawyer in the judicial offices, when we know that the people running them have a stage prompter at anyone’s hearings who points out what decision is to be taken at a given moment. That is to say, there is a deterioration of the Judiciary from an academic and intellectual point of view.
RG: Nevertheless, Judge Luis Velásquez Alvaray states the exact opposite. There are judges being substituted, who in addition to not being qualifyied to fulfill their duties, are also linked to activities such as narcotraffic.
MF: It would be irresponsible for a judge to assume positions without proof. The TSJ (Supreme Tribunal of Justice) ought to be the place where an ordinary citizen's rights are most closely guarded and even more so those belonging to persons who are part of the Judiciary. If we observe who the people are who have been in the Judiciary since 1999, we find a new group of judges, of people like us, who were not a part of what they were trying to eradicate, that is to say, the alleged judicial tribes of that time. Now comes this same group and says that those judges are no good. But the fact is they are judges who were appointed under this presidential term.
RG: It could be, in the judgment of those who decide, that they do not meet the requirements. The question is by whom are they being substituted?
MF: That is important. But one must go further and ask oneself how the new judges of the Supreme Tribunal of Justice got there. Assemblyman Pedro Carreño stated they were not going to allow self-goals to be scored and that there was not going to be anyone there who would turn out to be biased in favor of the officialdom. One must also ask oneself what are those judges'credentials? It is a fact that some of them failed the examination for becoming titular judges and are now justices of the republic.
RG: Who, for instance?
MF: There is talk of judges who failed the examination for superior judge. There is talk of judges who were dismissed from the Corte Primera de lo Contencioso Administrativo (a lower level court) and now sit on the Supreme Tribunal of Justice (TSJ). The Constitution clearly establishes the requirements for being a justice of the TSJ. Nobody who does not have the title of Doctor of Jurisprudence can occupy a position on the TSJ. It is also clear that there are some very well prepared people such as Doctors Angulo Fontiveros, Cabrera, Omar Mora and Lewis Ignacio Zerpa.
RG: If they are Doctors of Jurisprudence and, apart from their knowledge, they are expected to have an impeccable sense of the exercise professional ethics, why then do they allow these kinds of situations that you describe?
MF: That question ought to be answered by them and more so with this radicalization and with control of the Judiciary being in the hands of a group of judges. Formerly, the Judiciary Committee was presided over by the President of the TSJ, but there was a fundamentally independent operation. Now the new judges have arrived and preside over almost all of the courtrooms of the TSJ. They control the Inspector General of the Courts; through an inspector whose name is Luis Ortiza. They control the Judicial School by way of Judge Porra. They control the Judicial Committee headed by Luis Velásquez Alvaray. They control the National Unit for Public Defense through Judge Deyanira Nieves. They control the Executive Office of the Magistracy, in the hands of Luis Velásquez Alvaray. And the only link that was not controlled, the Committee for Restructuring the Judiciary, a constituent body, was put out of operation by way of a constitutional appeal.
RG: Constituent body or not, that committee never managed to restructure absolutely anything.
MF: Granted it did no restructuring, but at least it did not deform the Judiciary. There, at least, there was due process allowing judges to defend themselves and hearings were held where the judges were heard. What you cannot do is concentrate, in an absolute manner, all the power in a single group of officials because that involves politicizing the system.
RG: Wasn't the Judiciary always politicized?
MF: I believe that neither the Judiciary nor the Office of the Attorney General was ever down on its knees before the political process. Politics has always meddled in everything, but there are circumstances that differentiate those times from these. First, there were not as many cases of a political nature brought before the courts and therefore it was more difficult to gauge the politicization of the institution. There were economic interests, personal cases and a group of judges who might be linked to parties. Perhaps in order for negotiations to reach the Supreme Court this was done with the help of the parties because it was Congress who always appointed justices to the High Court. But at the present time the language spoken by the heads of the institutions is political. The very fact that the name of the "revolution" has been applied to a plan for judicial transformation gives us an idea of the degree to which they are beholden to the Government.
Translation by W.K.
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