International Bar Association Venezuelan Justice System in Crisis Executive Summary This is an executive summary of the report from the International Bar Association (IBA) s mission to the Bolivarian Republic of Venezuela from 12 to 18 January 2003 to investigate the state of the judiciary and the status of the rule of law in Venezuela. The mission was sent to Venezuela at the request of the Colegio de Abogados de l Distrito Federal and various members of the IBA because of heightened concern for the deteriorating situation with the rule of law in Venezuela. The mission s terms of reference were to: To ascertain the legal status of the judiciary in Venezuela and their ability to render their services impartially and without interference The ability of lawyers to carry out their duties freely and without undue interference To investigate any impediment, either in law or in practice, that jeopardises the administration of justice 1
The legal guarantees for the effective functioning of the justice system, including the independence of the judiciary and respect for the judiciary and whether these guarantees are respected in practice. Make necessary recommendations. The mission held meetings with the Vice-President of the Republic, the Attorney- General, the Ombudsman, magistrates from the Supreme Court and other members of the judiciary, lawyers, el Colegio de Abogados del Distrito Federal, members of the national armed forces, the metropolitan police and the Mayor s office of Caracas, and representatives from non-governmental organisations (NGO s) and civil society. A summary of the facts learnt during the mission is set out below. 1. The transition to democracy in Latin American countries has encountered severe difficulties characterised by problems within the administration of justice, many of which respond to high levels of corruption, impunity and authoritarian tendencies. The mission considers that the situation currently faced by Venezuela is particularly worrying and is unacceptable. 2. The new Constitution (1999) states that a figure of not less than two per cent of the national budget should be spent each year on the financing of the justice system. However, the majority agreed that this provision had not been implemented and that the judicial system faces a troubling lack of resources. 3. The Constitution is innovative as it incorporates new mechanisms for the selection of members of the judiciary (article 264) and places new requirements and conditions on those taking part in the fundamental organs of the State, such as the Supreme Court. However, many comments were received by the mission regarding non-compliance with the requirements and constitutional procedures for the appointment of the present magistrates (as well as for the election of the Ombudsman, the Attorney-General, and members of the National Electoral Counsel). 2
4. The mission received several comments regarding the difficulties the Dirección Ejecutiva de la Magistratura (DEM) of the Supreme Court (which replaced the Consejo Superior de la Judiciatura) faces in carrying out its duties due to its continuing dependency on the Supreme Court. It also lacks the infrastructure to develop the technical capacity to select and evaluate judges, and to monitor the activities of the Escuela de la Judicatura. 5. The mission understands that most of the obstacles encountered by the judicial system are the consequence of the so-called sistema transitorio. The system does not include most of the terms of the 1961 Constitution, while the terms of the 1999 Constitution are just beginning to enter into effect. The mission is concerned that this transitory period has lasted for many years (after 1999). Clear examples of the transitory period are: The existence of more than one text of the Constitution. The sluggish process of the Comisión de Emergencia Judicial which is charged with evaluating the status of judges. During the Commission s initial investigation into the judges who were suitably qualified to be appointed to the Bench, it suspended all judges with more than seven complaints against them. More than 300 magistrates were suspended and dismissed. Since then, the number of provisional judges has grown from 1,331 to 1,772. This indicates that 75.11 per cent of Venezuelan judges are provisionally appointed without security of tenure. This issue has steadily worsened since the Constitution was enacted. The new Constitution provides for judicial reforms from the National Assembly including the regulation of the judiciary, the Supreme Court, the Ombudsman and the establishment of a Code of Ethics for judges. These reforms have not taken place. For example, the Supreme Court is regulated by the same laws which once regulated the Supreme Court of Justice (a similar body under the 1961 Constitution) and by selfadministration. 3
Civil society considers that the worst threats to the rule of law come from the Government and the President of the Republic. They also recognise that members of the judiciary are victims of pressures from the opposition. 6. Although access to justice in Venezuela has been subject to a number of problems under different governments, the measures taken to transform the system of justice (the constitutional reform of 1999, the Fundamental Code of Criminal Procedure and the declaration of emergency in the judicial system) during the current administration have not changed the situation of non-access. This problem is explained by two factors. Many people do not use the judicial system and end up taking justice into their own hands. Added to which the majority of the population is armed. The second factor is the inability of the system to enable citizens access to the courts or to alternative dispute resolution mechanisms for the settling of legal disputes. (See illustrations of this point in the mission s full report.) Conclusions and Recommendations 1. The mission is aware that the system of justice in Latin America and Venezuela suffers from serious problems which have always hindered and obstructed its functioning. The mission considers this to be unacceptable. It also concludes that the current political, economic and social conditions have aggravated these difficulties further. The reforms which have been carried out to the system of justice have not addressed the structural problems. These reforms are a priority. Recommendations. Taking into account that there is a lack of confidence in the administration of justice, the mission considers it essential to develop programmes to promote the importance of an independent judiciary and the separation of powers between the Executive and the judiciary. The mission considers it essential that individuals have knowledge of their rights and the legal mechanisms (including alternative dispute resolution mechanisms) available for their protection. In this sense, the mission considers it important to 4
establish educational programmes designed to explain to people what their rights are and how to enforce them. Professional training of those involved in the system of justice is indispensable if the proper administration of justice is to be guaranteed. Thus the mission considers it fundamental to strengthen the Escuela de la Judicatura. 2. Due to the mistrust of the justice system, the mission found that people take justice into their own hands. The structure of the justice system and the legal framework, have not met public demands for protection and legal guarantees. Neither of these elements has been able to prevent breaches of rights caused by acts of state and/or parastate violence, or provide citizens with the security they need in the exercising of their rights. This problem can be attributed to various factors, including uncertainty as to the applicable legal framework, lack of impartiality on the part of judges and prosecutors in their various activities, difficulty gaining access to justice and the insufficiency of existing dispute resolution mechanisms in terms of meeting the demands of the people for justice. The mission considers that Venezuela is under the governance of a paralaw which erodes the basic requirements of a democratic rule of law favouring human rights. This transitional system has been especially damaging to the system of justice. For the mission it is clear that, within the current crisis of the system of justice in Venezuela, it is possible to identify three institutions in which social polarisation, a product of political instability, is most visible. These institutions are the Supreme Court, the Ombudsman and the Attorney-General s office. The problems faced by these institutions are not only associated with problems endemic to the system of justice in Venezuela but are rather to be explained by the political flux experienced during the current crisis. The lack of autonomy and independence of these institutions adds to the problems of the system of justice as these are the most 5
visible institutions of the system and are, moreover, essential in terms of sustaining and strengthening the processes provided within the same. Recommendations. The mission invites all levels of the Venezuelan State to return to the rule of law by way of compliance with and application of the constitutional mandates approved by the people in December 1999. The mission states its complete disagreement with sistema transitorio which has, in a de facto sense, come to replace the new constitutional mandates. The National Assembly must proceed, as quickly as possible, to issue laws in compliance with and development of the Constitution. The mission considers that one of the elements contributing to the continued existence of this sistema transitorio or paralaw is the lack of the corresponding legal framework in crucial areas of the system of justice. At the same time it strikes at the basic requirements of a democracy that the Executive is given, by way of enabling laws, powers which permit it to legislate on a non-exceptional basis. Thus, the 49 Decree-Laws issued by President Chavez in use of the powers given to him by enabling laws constitute a threat to the clear separation of powers, checks and balances which must exist within the state structure. The mission recommends that Supreme Court judges be selected in accordance with the procedure laid down in articles 263 and 264 of the Constitution, and that other judges be selected by a competitive procedure, without unjustified delay, in accordance with article 255. These measures will help to put an end to the endemic problem of the constant changing of judges in Venezuela. The mission recommends selecting the General Controller, the Attorney-General and the Ombudsman in accordance with the constitutional mandate (articles 270 6
and 279) and with the transparency the people require in order to have faith in the legal institutions. In order for judges to be independent it is necessary to provide sufficient and proper financial remuneration, social security (for judges and their families) and corresponding physical protection. In the same way, judges require the physical means (office, staff, modern, proper and adequate equipment) necessary to carry out judicial functions. On this point the mission calls the Attorney-General and the Ombudsman to be provided with the human and material resources necessary for them to be able to carry out their functions properly. The mission acknowledges the advances that have taken place in the restructuring of the judicial infrastructure of the country. However, the mission considers that these advances are still not sufficient to improve the physical condition of the system of justice. The mission recommends improving the judicial infrastructure of the country, in particular that of the lower and circuit courts. 3. The mission also concludes that the steps taken to widen the coverage of dispute resolution mechanisms alternative and otherwise have been ephemeral, which has had particularly serious consequences for various sections of society, particularly the marginalised. Recommendation. The mission invites the Venezuelan government to strengthen, in the terms of article 258 of the Constitution, the mechanisms for alternative dispute resolution. The mission recommends, as a first step, the issuing of a law to govern and extend the scope of the same. In relation to justices of the peace, the mission considers it important to increase their numbers with a view to meeting the need for justice, particularly, of the lower classes. 4. It is clear to the mission that, although in theory not less than two per cent of the national budget has been assigned to finance the system of justice, in reality not all 7
the money has been forthcoming. The mission views with great concern the possibility that, as a consequence of the economic crisis the country is currently suffering, the budget of the system of justice will be reduced even further. Recommendation. The mission calls on the government to provide at least two per cent of the national budget for the system of justice. 5. The mission concludes that the current distribution of power within the various levels of the Venezuelan State endangers the rule of law and human rights. The mission considers that the current relationship between the armed forces and the Executive gives cause for concern. In particular, the mission calls attention to the decision-making role of the armed forces, the dangers of giving them judicial police functions and of allowing them to carry out tasks which should be carried out by civil authorities. The mission condemns the actions and violations of human rights carried out by the so-called extermination groups and the so-called Bolivarian forces. The mission considers it important to clarify the alleged links between the Executive, the extermination groups and the Bolivarian forces which have been attacking various sectors of Venezuelan society. The government has an obligation to protect its citizens and investigate any alleged attack. 6. The mission observes that the government does not uphold its international obligations in matters of human rights. Recommendation. Taking into account that Venezuela has ratified the great majority of the treaties on human rights and that, in accordance with its Constitution, these are to be given special and preferential treatment, the mission urges it to comply strictly with the same. In this sense, the Venezuelan government must begin by complying with the inter-american system of human rights paying 8
the reparation due in the Caracazo case and the interim and provisional measures which the Inter-American Commission and Court have decreed. The mission demands that the right to freedom of expression be respected. Freedom of expression has been particularly affected by the present crisis. The inter-american system has made a number of important recommendations in this regard. The mission views as serious the disregard for the recommendations and decisions of the inter-american system. 7. It was suggested to the mission that the idea of creating a Truth Commission owes more to the idea of seeing justice done (due to the lack of confidence in the system of justice) than to the need to clarify and reconstruct the facts of April 2002. Recommendation. Given the extreme level of polarisation in Venezuela, and given that such a Commission would be held during the crisis and not at the end of it (as has been predicted) the mission recommends involving all sectors of society, and particularly international bodies, in its work. 8. The mission considers it unacceptable for the Executive to make public declarations, undermining the work of the courts and inviting public disregard of court orders. 9. The mission considers that non-governmental organisations in Venezuela are not able to carry out their functions as members of civil society, not only because members of the same have been threatened, but also because of decisions handed down by the Supreme Court of Justice which leave open the possibility of a restrictive interpretation of the term civil society. 9
Recommendation. The mission invites the various powers of the Venezuelan State to adopt the widest possible interpretation of the term civil society 1 and to respect the work of NGO s and ensure the security of those who work for them. It is clear to the mission, that despite the measures adopted with the Constitution to settle the clash between the Consejo Superior de la Judicatura and the Supreme Court, have not resolved the problem completely as there are as yet no clear strategies to integrate and harmonise the judicial and the administrative parts of the system. Recommendation. The mission commends the great effort made by the DEM in the administration of the system, especially as regards to the collaboration entered into with the World Bank. The mission does however consider that there are some areas in which the DEM has been not able to carry out its work fully, such as those functions relating to the Escuela de la Judicatura and the holding of competition procedures for the appointment of non-provisional judges. The mission recommends the appropriate measures are taken to clarify the different roles and responsibilities of the administrative and judicial organs in order to create a more efficient system. The delegation was comprised of the following high-level jurists: Ramón Mullerat, Co-Chair of the IBA s Human Rights Institute; Judge Luis Fernando Solano, President of the Constitutional Court in Costa Rica; Judge Antonia Saquicuray of the Supreme Court of Lima, Peru and President of the Association of Judges for Democracy and Justice; Professor Terrance Coonan, Professor of International Human Rights Law and Director of the Centre for the Advancement of Huma n Rights at Florida State University, United States of America; Dr Clara Sandoval, Professor of International Human Rights Law at the University of Essex, United Kingdom. 1 As regards the problems which a restrictive interpretation of the term civil society can cause please see the full report. 10
About the International Bar Association In its role as a dual membership organisation, comprising 16,000 individual lawyers and 180 Bar Associations and Law Societies, the International Bar Association (IBA) influences the development of international law reform and shapes the future of the legal profession. Its Member Organisations cover all continents and include the American Bar Association, the German Federal Bar, the Japan Federation of Bar Associations, the Mexican Bar Association and the Law Society of Zimbabwe. Grouped into three Sections Business Law, Legal Practice, and Ene rgy & Natural Resources Law more than 60 specialist Committees provide members with access to leading experts and up-to-date information as well as top-level professional development and network-building opportunities through high-quality publications and world-class Conferences. The IBA s Human Rights Institute works across the Association, helping to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide. International Bar Association 271 Regent Street London W1B 2AQ United Kingdom Tel: +44 (0)20 7629 1206 Fax: +44 (0)20 7409 0456 E-mail: member@int-bar.org Website: www.ibanet.org 11