VENEZUELA: IS THE SUPREME COURT AT THE SERVICE OF THE ADMINISTRATION?

Report from Sumate.org

Human Rights decisions taken by supranational authorities are ignored.

1. When a petition was introduced before the Supreme Court to annul the Penal Code provisions criminalizing any expression which might be considered offensive to government authorities or institutions, the Supreme Court, by Sentence N° 1942 of July 15, 2003, ratified as crime those alleged offenses under the scope of what are internationally known as 'contempt laws'. It further established the option of a prior 'judicial' censure.

2. The above-mentioned sentence includes expressions, arguments and decisions that are in clear violation of legal doctrine developed by the Inter American Commission on Human Rights, of jurisprudence conceived by the Inter American Court on Human Rights and the San José de Costa Rica American Convention on Human Rights, of November 22, 1969, which is, as of its congressional approval by law and publication in the Official Gazette (N° 31.256 of June 14, 1977), legally binding in Venezuela.

3. Salient points of the above-mentioned Sentence are the following:

• (.) The Chamber rules that, in relation to Article 7 of the Constitution, there does not exist any higher jurisdictional authority than the Supreme Court unless the Constitution itself or the Law so provides for. It equally rules and declares that, even in such a circumstance, any decision which might be in contradiction to Venezuelan constitutional provisions shall have no applicability within the country;

• (.) Any and all decisions by supranational, transnational or international jurisdictional organs which might be in violation of the Constitution or which might not have previously exhausted all internal judicial procedures, shall not be applicable within Venezuela;

• (.) Recommendations by international organizations, and in particular by the Inter American Commission on Human Rights, do not have the same legal standing as those issued by the Inter American Court on Human Rights, and are consequently not mandatory, as they are, as the term implies, non-binding recommendations.

4. The Supreme Court has thus prepared the ground for a non-recognition within Venezuela of decisions by international tribunals or organizations, a matter of grave concern to the legal community, to the very same international organizations and to NGO's active in the field of protection of Human Rights in Venezuela.

5. On March 15, 2004 , the Electoral Chamber of the Supreme Court issued Decision No.24, by which it ordered the National Electoral Council, by way of precautionary measure, to add the 876.017 signatures that had been recollected in the petition for the Presidential Recall Referendum and declared invalid by the Council, to those other signatures already considered valid. It equally ordered the Council to solely abide by its own original rules and regulations in relation to possible annulments of signatures. Notwithstanding the final nature of the sentence issued by the Supreme Court, through its Electoral Chamber, the National Electoral Council chose to ignore it and stated that it would only abide by decisions issued by the Constitutional Chamber.

6. On March 23, 2005 , the Constitutional Chamber of the Supreme Court, declared null Sentence N° 24, of March 15, 2004 , passed by the Electoral Chamber. It confirmed the right of the National Electoral Council to develop rules and regulations in relation to elections and referenda and forbade the Electoral Chamber from adopting any annulment or relief measure and from issuing any decision regarding in electoral processes.

7. In March 2004, an order of arrest was issued against Henrique Capriles - Radonsky, Mayor of Baruta, for having allegedly participated in attacks against the Embassy of Cuba on April 12, 2002 . On April 1, 2004 , the Penal Chamber of the Supreme Court lifted the sentence. Nevertheless, on May 11, 2004 , the Second Control Tribunal of the Caracas Metropolitan Area issued an order of arrest against Mayor Capriles-Radonsky, who was thus once more detained. He remained in jail throughout his trial until he was finally absolved of all charges in September 2004.

8. On December 30, 2002 , Retired General Carlos Alfonzo-Martínez was incarcerated and held without charges in the Political Police's (DISIP) headquarters. A writ of relief in his favor was submitted, to and granted by the 18 Th Control Court , presided by Judge David Manrique, who ordered his liberation. Nevertheless, General Alfonzo-Martínez continued to be held in jail. On June 19, 2003 , the First Contentious Administrative Court , ruling by unanimity, granted General Alfonzo-Martínez's freedom. Such ruling was equally ignored. The accused continued in detention until his trial concluded with a five years jail sentence. On October 30, 2004 , the Second Chamber of the Court of Appeals absolved General Alfonzo-Martínez of the alleged crime of violating security areas. Nevertheless, on April 16, 2005, the Criminal Cassation Chamber of the Supreme Court approved the motion to vacate that had been introduced by the Office of the Public Prosecutor against the decision issued by the Second Chamber of the Court of Appeals, which absolved General Martinez.

9. The Venezuelan press has followed and presented to the public the most emblematic cases of notorious disregard to due process and to the independence and autonomy of the Judiciary.