Recurrent due process violations in Venezuela reveal a judiciary lacking independence, which has allowed serious human rights violations against male and female opponents of the government to go unchecked, finds a new United Nations report published today.
In its second report, the UN Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela details how the justice system’s deficiencies have gone hand-in-hand with a pattern of serious human rights violations and crimes under international law in the context of a state policy to silence, discourage and quash government opposition since 2014.
The Mission based its findings on 177 interviews – including many with justice system actors – as well as a survey of former Venezuelan judges, prosecutors and defence lawyers, and extensive analysis of thousands of pages of legal case files and other official documents. It conducted a detailed analysis of 183 detentions of real or perceived government opponents (153 men and 30 women; roughly half civilians and half military) between 2014 and August 2021, and documented irregularities marring all stages of the criminal process.
“Amid Venezuela’s profound human rights crisis, the independence of the judiciary has become deeply eroded, jeopardizing its role in imparting justice and safeguarding individual rights,” said Marta Valiñas, chairperson of the Mission.
“Our latest investigation found reasonable grounds to believe that, under intensifying political pressure, judges and prosecutors have, through their acts and omissions, played a significant role in serious violations and crimes against real and perceived opponents committed by various State actors in Venezuela.”
Perpetuating impunity
In recent years, public officials, including some at a high level, in Venezuela have been able to commit violations and crimes with impunity.
The Venezuelan State is constitutionally obligated to investigate and punish all perpetrators of human rights violations, regardless of their position. However, the Mission’s investigation found that this duty is being flouted in cases involving real or perceived opponents of the government.
Among the cases the Mission reviewed were those it documented in 2020 of state intelligence forces subjecting male and female detainees to short term enforced disappearance, torture including sexual violence, and arbitrary deprivation of life. It found no evidence of high-level officials being investigated or prosecuted in these cases, or in any other cases it has investigated since.
These include cases that Venezuelan authorities recently used to demonstrate the positive progress made by the judicial system: Fernando Albán was an opposition leader who fell to his death from the tenth floor while detained in the Bolivarian National Intelligence Service (SEBIN) headquarters in 2015; Rafael Acosta Arévalo was a military officer who fainted and died in a Caracas courtroom following torture in 2018; and Juan Pablo Pernalete was a student who died after a tear gas canister struck his chest at close range during a protest in Caracas in 2017. The Mission found that the recent charges brought in these cases are highly limited in scope and/or focused on isolating low-level perpetrators, as opposed to seeking accountability further up the chain of command.
“The overwhelming majority of human rights violations and crimes we previously documented targeting government opponents have not resulted in thorough investigations, prosecutions and convictions of all those allegedly responsible,” said Francisco Cox Vial, member of the Mission.
“The centrality of the justice system to the Venezuelan human rights crisis cannot be overstated. Had prosecutorial and judicial actors performed their constitutional role appropriately, they could have either prevented the crimes and violations from being committed, or placed rigorous impediments upon public security and intelligence services’ ability to commit them.”
Procedural irregularities
Judges ordered pre-trial detention as a routine, rather than an exceptional measure. Prosecutors and judges at times sustained detention and criminal charges based on supporting evidence that did not indicate criminal acts or demonstrate the defendant’s participation. In some cases, judges provided legal cover for illegal arrests by issuing arrest warrants retrospectively, covering periods of detention, including during which detainees faced torture and sexual violence, could not contact family members and lawyers, and were beyond the protection of the law.
Prosecutors submitted information tainted by torture and judges admitted this as evidence against defendants. In some of the cases reviewed, judges also failed to protect victims of torture by ordering that they return to the places of detention where the torture allegedly occurred, despite having heard victims – sometimes bearing visible injuries consistent with torture – make the allegation in court.
Lengthy procedural delays denied defendants the opportunity to challenge evidence against them in a reasonable timeframe. The Mission documented 16 detention cases in which preliminary hearings were deferred for more than two years, during which time the detainees remained either in pre-trial detention or with substitute precautionary measures. Several detainees had their preliminary hearing deferred more than 20 times, with some languishing in pre-trial detention for up to four years – twice the legal limit.
Defence lawyers routinely faced hurdles and harassment, while defendants were pressured to accept public defenders rather than lawyers of their choosing.
“Taken cumulatively, the multiple irregularities in the cases we analysed have had a devastating impact on the lives – including the physical and mental health – of the victims and their families,” said Marta Valiñas.
Independence of the justice system
The Mission found reasonable grounds to believe that high-level Venezuelan political actors have exerted significant influence over the judiciary.
Since Venezuela’s 1999 Constitution, at least a dozen new laws and resolutions have impacted the justice system’s independence. Meanwhile, there has been a stark deterioration in the independence of the Supreme Tribunal of Justice, the body with the power to select and remove judges. The Supreme Tribunal of Justice’s appointment of provisional judges, as opposed to career judges, has allowed it to select and dismiss judges on the basis of improper personal or political considerations.
Sources from within the judiciary reported that judges at all levels routinely receive orders on how to decide judgements, at times coming directly from senior government figures and channelled via the Supreme Tribunal of Justice leadership.
Judges who refused to give in to political pressure have been vilified and intimidated – a prominent example was the 2009 arrest and prosecution of Judge María Lourdes Afiuni. This has resulted in a climate of fear. Nearly half of the former judges and prosecutors interviewed, along with many of their family members, have had to leave Venezuela fearing for their safety; many others declined to speak to the Mission out of fear of reprisals.
Prosecutors have been rendered vulnerable in similar ways. In 2018, the current Chief Prosecutor eliminated the competitive selection process for prosecutors and declared that all civil servants within the Public Prosecutor’s Office are in “positions of trust” and can be freely appointed and removed. Sources with direct knowledge told the Mission that entry depends largely upon partisan personal or political factors.
One former judge stated, the justice system “is not even a shadow of what it was just 15 years ago”.
“Instead of acting as a check on other State institutions and providing protection to victims of human rights violations, the justice system has facilitated their commission and contributed to impunity. Some judges and prosecutors have denied the rights of real or perceived government opponents,” said Francisco Cox Vial.
“Venezuela’s judicial system is in urgent need of reform, to rid it of undue political influence and ensure it protects the rights of all Venezuelans, in accordance with domestic law and international human rights obligations.”