Venezuela's Case Against Afiuni Falls Apart

December 10th, 2010

Venezuela's Case Against Afiuni Falls Apart

SUMMARY OF AFIUNI CASE AFTER ONE YEAR PRETRIAL CUSTODY


Justice Maria Lourdes Afiuni remains in custody at the prison for women in Caracas, Venezuela. She was charged with "corruption" and "assisting in an escape" because, while a sitting judge, she granted an accused bail to await his trial on criminal charges. That person, one Cedeno, had been in custody for 34 months awaiting trial. The Constitution of Venezuela stipulates that no person be detained before trial for a period longer than two years.

In Cedeno's case, trial dates had repeatedly been adjourned because no prosecutor appeared; by April 2009, the prosecution had caused no less than four trial adjournments by the simple expedient of not showing up, with the result that the accused remained in jail with no need for the prosecutor to prove the allegations against him.

http://www.reuters.com/article/idUS148609+19-Mar-2008+PRN20080319

Finally, Justice Afiuni ruled that the Constitution required that he be released on bail. She required Cedeno to report to police twice weekly.

Within one hour of her decision, Security Police entered her courtroom and pulled her down from the bench, placing her in custody.


PRESIDENTIAL INTERVENTION

The day of her arrest by Security Police, President Chavez went on national tv to denounce Justice Afiuni as a "bandit" and demanded that she receive 30 years in prison for her crimes, "in the name of the people." In Bolivaran times, he said, she would have been shot.

The next day, Justice Afiuni was denied bail, even though a person with no previous criminal record is entitled to bail, to ensure that punishment does not precede proof.

CORRUPTION

The corruption charge against Afiuni requires a showing by the prosecutor that the judge received a benefit in exchange for her decision to release Cedeno on bail.

Justice Afiuni was given a preliminary hearing on May 17th,2010. On that date, the prosecution admitted that it had no evidence that Justice Afiuni had received money, or the promise of money, or any other goods, for releasing the prisoner; but argued that "anything" can be a benefit pursuant to the criminal Code. The preliminary hearing judge agreed, stating that the benefit received by the accused, Afiuni, need not be a "material" benefit, but includes "an emotional or spiritual benefit" (afectivo o espiritual). Thus, the international approval which the judge received for her decision to grant bail could be the basis for trying her for corruption, since she likely benefited spiritually or emotionally from this approval.

She was sent on to trial on this charge on the basis of this reasoning, which was termed "absurd"
by one of the authors of the Venezuelan Criminal Code, Professor Alberto Arteaga. He noted that any important judicial decision will likely receive approval from someone, including correct legal decisions. Presumably, the more correct and courageous the decision, the more approval it will receive. Such approval will not render the decision "corrupt" without proof of a promise or delivery of a tangible benefit reducible to money or property, he said.

ASSISTING AN ESCAPE

Judge Afiuni was also charged with assisting an escape. According to the Chief Prosecutor for Venezuela, a person released on lawful bail requires a "certificate of release", which, she said, had not been signed by Judge Afiuni in the case of Cedeno. Such a certificate ought to have been on the file, and it was not there, leading to the conclusion that the release had been extra-legal, she said. Any act not done through proper channels is illegal, and therefore criminal, she added. The critical nature of the absence of this certificate was repeatedly mentioned by the Chief Prosecutor, on national television interviews and elsewhere. The same argument was relied upon at the preliminary hearing by the local prosecutors.

Justice Afiuni was sent on to face trial on the "assisting an escape" charge, due in substanial part to the absence of the signed Certificate of Release (Boleto de Excarcelacion).

The Certificate has now been found. It can be viewed online. http://www.facebook.com/photo.php?pid=31593701&fbid=1579472207770&id=1264603023

It is appropriately numbered and bears Afiuni's signature and judicial stamp, which was seized by prosecutors at the moment of her arrest. The certificate simply mysteriously reappeared in the file, six months after Justice Afiuni's arrest, and subsequent to her preliminary hearing.

Although it is undeniable that Afiuni has a right to at least a modified jury trial--with two jurors and one judge--pursuant to s. 62 of the Code of Criminal Procedure--she has been denied this right by the assigned judge. That judge, one Ali Paredes, had written to the governing party prior to being assigned the case, but while a sitting judge, to tell them that:

"I am very proud to have some family members who are forerunners of this grand revolutionary process which we are living in. And also let me say that I will never commit treason against this process end especially against my comandante because I bear the revolution in my blood." http://web.psuv.org.ve/?q=node/4802



Paredes refused to allow jurors to be selected for participation in the trial, without giving any reasons.

Afiuni's lawyers appealed this decision, arguing that Chavez's earlier intervention, coupled with the judge's view that Chavez was his comandante, created a reasonable apprehension of bias. They also argued that Paredes has no juridiction to try Afiuni alone, since the Code requires two jurors, when, as here, a "mixed" trial has been selected by an accused.

These arguments were rejected on appeal. No substantive reasons were given, though the Appeal Judge noted that Paredes' decision had been xeroxed, and therefore was not "the original decision being appealed." No one had ever heard of this doctrine before.

As of this writing, Justice Afiuni has been in custody for one year. No trial date has been set.

The reform of the Cuban economy proceeds. After an announcement in August by the Labour Central that 500 thousand jobs would be shed, a New Economic Policy Discussion Paper has been published.

The French paper Le Monde Diplomatique published a fine discussion of the paper, (behind its subscription firewall).

An excerpt:

"The ruling group, partisan of liberal reform, has been rejuvenated by Raul Castro. Many of its positions are held by managers who came from the military, and for them "egalitarianism" and "paternalism" (understood to mean excessive social welfare provisions and not the seizure of power) are the root of all evil. Now they seem to have the de facto support of Fidel Castro. They do not analyse the causes of Cuba's low productivity and systemic inefficiency but blame a lack of worker motivation. When Raul Castro said that "Cuba cannot be the only country in the world where you can live without working", he made people profoundly unhappy, since absenteeism is often due to workers engaging in illegal activities vital for their survival. Military men who are also company directors say Cuba has no choice and, "like Vietnam or China", must adapt to globalisation, yet remain distinctive."

Since Cuban workers average a wage of $20.00 per month, it takes gall for the leadership to talk about "a lack of worker motivation." It takes even more gall to pretend that Cuba's military leaders--who double as factory managers--are doing anything progressive here.

Those who have unthinkingly supported Cuba over decades must now wish they had insisted on real democracy in Cuba, not the patently authoritarian system now in place. If they had, the workers of Cuba might have some avenues to object to what is happening to them.

As it is, two "pillars of the revolution", guaranteed employment and guaranteed food by rationing card, are being removed, and replaced with nothing. Cuba's workers are exposed as never before, while the regime's reforms are directed at saving its own privileges, not the working class.

Fidel Castro's Gorbachev Moment

A week ago, Fidel Castro told a reporter for the Atlantic Monthly, in response to a question as to whether the Cuban model could be exported to other countries, responded that "the Cuban model doesn't even work for us anymore." It was reported yesterday morning

on the Atlantic website.

http://www.nytimes.com/2010/09/09/world/americas/09briefs-Cuba.html?_r=1&scp=1&sq=castro%20cuban%20model&st=cse

This is pretty big news in Latin America, particularly on the left, where support for Cuban Communism remains fairly strong. For example, the Mexican left newspaper "La Jornada" has a full page article on it: http://www.jornada.unam.mx/2010/09/09/index.php?section=mundo&article=024n1mun. It's all over the Brazilian papers, the Argentine, the Ecuadorean.

In Venezuela, the anti-Chavez opposition thinks it's a pretty relevant statement, since Castro has said he sees no difference between Chavez's policies and communism in Cuba.

The left websites in Venezuela are also discussing the statement: http://aporrea.org/actualidad/n165135.html---where they express the wish that Cuba release the official transcript of Castro's remarks.

Cuban papers haven't mentioned it to Cubans yet. The official Communist Party daily, Granma, has not reported:http://www.granma.cu/, nor has Prensa Latina http://www.prensa-latina.cu/, or Juventud Rebelde, the "youth" paper. http://www.juventudrebelde.cu/

Twenty-five years ago, Fidel Castro conducted a purge of the Communist Party of Cuba and of public employment, getting rid of "Gorbachevites", who believed in the need for perestroika, a rebuilding of Soviet Communism--for Cuba.

Fidel Castro was the prime author of the "Cuban model" over a fifty year period, and certainly its most famous exponent, world-wide. If he has decided it doesn't work, shouldn't people in Cuba be allowed to find out?

The judicial system has now refused a jury trial to detained Venezuelan Justice Maria Lourdes Afiuni . Legally, Justice Afiuni has a right to be tried by a jury; however, the government has claimed this to be administratively impossible. Justice Afiuni's legal team then elected a "mixed trial", which means that the two laypersons are included as finders of fact. While this system is a far cry from an actual jury trial, it does mean that someone other than a state employee will decide on guilt or innocence.

On Wednesday, July 28th, Judge Ali Paredes decided that Justice Afiuni's trial will take place on August 10th, 2010, and it will be a "judge alone" trial, despite the fact that the law supposedly insures that she be able to elect the mode of her trial.

Justice Afiuni is in jail because she granted bail to a political prisoner, contrary to the desires of President Hugo Chavez. Even though the Venezuelan Constitition mandated release, Justice Afiuni was arrested within the hour and pulled down from the bench by security police.

Since the charges--"aiding an escape" and "corruption" allow a possible sentence of life imprisonment, the right to a jury trial is guaranteed by the COPP, or Criminal Procedure Statute, Article 62. http://www.analitica.com/bitblio/congreso_venezuela/penal.asp

On May 17th, the regime in Venezuela finally got Justice Afiuni into court for her much-delayed preliminary hearing. (For those who need a summary of the case before May, please check the post for March 29th, below).

The government lawyers immediately announced that there was no evidence of any payment made, or promise of payment to Justice Afiuni by anyone.

It was the general opinion among lawyers that this concession meant that Justice Afiuni would have to be freed, since without payments or promises of payment, where's the corruption?

But these lawyers were reckoning without the assigned judge, who has been assigned to many of the "political" cases, and who has no permanent position as a judge--she serves at the discretion of the President.

That judge, Leyvis Azuaje, held that the very fact that a prisoner was released by Justice Afiuni could well be a benefit to Judge Afiuni! So, she was committed to trial on all charges.

One informed observer, Ligia Bolívar, the director of the Centre for Human Rights of the Catholic University Andrés Bello said the decision showed that Venezuela is no longer functioning as a society of laws.

http://eluniversal.com/2010/05/19/pol_ava_venezuela-se-coloca_19A3892379.shtml

The United Nations Special Rapporteur on the Independence of the Judiciary also supported Justice Afiuni, stating in her report of June 3, 2010 that:

"Particular attention must go to grave violations of human rights. The Special Rapporteur expressed her grave concern about the case of Judge Maria Lourdes Afiuni and said she was awaiting the response of the Venezuelan Government. "

http://www2.ohchr.org/english/issues/judiciary/docs/A.HRC.14.26.pdf

Chavez Stenographers

President Chavez of Venezuela has reverted to repression---as in the Afiuni case described below---and has lost support worldwide as a result. Inside Venezuela, he's polling in the low thirties, even with his weekly seven-hour tv show on every channel, and effective control of the national budget for self-aggrandizement and buying clients beholden to his state-provided largesse.

This leaves "solidarity" sites with a dilemma. Do they double down and pretend, or do they make a timid criticism now and again?

James Suggett's article in the main solidarity organ in English, "Venezuelanalysis" follows a well-worn path of faithful stenography for the Venezuelan state and its leadership.

First, Suggett claims that the real problem in the Afiuni case is the "international media" which are criticizing Venezuela rather than minding their own business.

While blaming the international messenger will sometimes work with the dullwitted, it is useless in the Afiuni case. The day after Justice Afiuni was pulled down from the bench and tossed in jail, her cause was taken up by the Caracas Bar Association as well as several UN human rights experts. Several days later, the Latin American Judges' Association issued a statement decrying the treatment of her. Venezuelan newspapers also deplored what occurred.

What the Suggetts of the world desire is that the cries of those being repressed in Venezuela are not heard outside. That is because for Suggett et al., there can be only ONE voice coming from Venezuela, and that voice belongs to Chavez. This is Chavez' actual belief, expressed in his speech of January 23rd, 2010, available on youtube under the heading "I am the People!". It is mimicked by his sycophants. When any voice not approved by the Leader is reported by the international media, it's a conspiracy.

-----------------

Suggett's defence of his Leader's jailing of Justice Afiuni follows the furrow plowed by Chavez the day after her arrest, when, (already!) he called her a bandit and demanded thirty years jail, while talking darkly of firing squads in "Bolivaran times".

Vague allegations of "corruption" and " conspiracy" were standards of Stalin's justice, and Suggett doesn't disappoint. He tells us about a banker, one Cedeno, who was brought into Justice Afiuni's court. He thinks that squirting out the words "fraud" and "banker" will convince most readers that there must be some guilt there.

And, there may be! But Cedeno was in Venezuelan custody 32 months without a trial. He is presumed innocent. The Venezuelan Constitution mandates that pretrial detention can be for twenty-four months maximum, at which point EVERY ACCUSED PERSON has a right to bail.

So Justice Afiuni granted Cedeno bail. What legal alternative existed? What would an honest judge do? If there were a legal argument in favour of continued detention, shouldn't the prosecution have come into court and made it?

-----------------------

The article then says " there was evidence that Afiuni had conspired to help Cedeño avoid facing the charges amidst the escalating fraud scandal in which he was implicated."

Not just fraud! Escalating fraud! And not "of which he was accused!" No, he is "implicated".

And Justice Afiuni "conspired"!

The source for this information is ""private conversation" with an official of the Red de Apoyo, a solidarity network.

So, here's how Suggett works. He writes what he's told by people who themselves would have no reason to know. He passes their conclusions on to the solidarity network, making no attempt to find out if any evidence really exists.

In a country which respects civil liberties, if the Prosecutor charges someone with a crime, the person gets a TRIAL. If there is evidence, it is presented at the trial. And people with no criminal record should generally get bail, so that punishment doesn't precede proof.

Well then, why not PRODUCE THE EVIDENCE? The Venezuelan Code of Penal Procedure requires a preliminary hearing within 60 days of formal arraignment. That arraignment happened for Judge Afiuni in early January, but no preliminary hearing has occurred.

Three excuses have been given by the prosecution so far: "there is no transportation" to bring Justice Afiuni to court, or "the court information (la causa) has been misplaced", or "the hearing judge is indisposed".

So, Justice Afiuni has been in custody for five months without a preliminary hearing, guaranteed by law, after setting one three times. She was entitled to a hearing by Mid-March at the latest. The New York Times and the Washington Post are on the case, and "there is no transportation available" to bring the accused to court.

Our solidarity reporter/stenographer doesn't mention any of this; he'd rather rely on "private conversation" . And he'll tell us all about the Penal Code when he's describing the allegations, but won't mention violation of those sections which protect civil rights.

-----------------------------------------------------------

Suggett channels the official story once again, claiming: "More importantly, she (released the prisoner Cedeno) in an unannounced hearing without notifying the prosecution from the Attorney General’s office, in violation of the penal procedural code."

Suggett hasn't a clue about the justice system in Venezuela if he believes this. HOW DID THE PRISONER GET INTO HER COURT FROM JAIL? DO YOU THINK MAYBE THE PRISON OFFICIALS AND THE TRANSPORT STAFF AND THE COURT OFFICERS HAD A ROLE IN BRINGING HIM THERE? DO YOU THINK NO ONE GETS INTO THE COURT CELLS, BELOW COURT, WITHOUT BEING PROCESSED IN, OR THAT THE PROSECUTION DOESN'T GET THESE LISTS?

The idea that one of the most famous prisoners in Venezuela got taken from jail to court, and then into Justice Afiuni's own courtroom, and it was all a big secret to the prosecution, is ludicrous.

And lo and behold! The prosecution was making a practice of failing to appear at Cedeno's trial for YEARS before he came into Afiuni's court. Reuters reported, in March 2009:

"Cedeno's trial was set to take place on March 12, but was again postponed by

Judge Gabriela Salazar of Court 23 in Venezuela after prosecutors from the

General District Attorney's Office of Venezuela were absent for the trial. This marks the fourth time no prosecutor appeared and the fourth time no advance notice or explanation for the absences was provided by Venezuelan prosecutors." http://www.reuters.com/article/idUS148609+19-Mar-2008+PRN20080319

The real claim of the Chavez government is this: prosecutors can ignore a judge's order to attend a hearing, No matter what rights are being violated, unless the Prosecutor deigns to attend, nothing can happen to the prisoner except continued detention without trial.

No one who believes in civil liberties could possibly accept this.
----------------------------------------------------------------------------
Suggett's blindness to any possible human rights issue leads him to crtiticize New York Times reporter Romero:

"Romero asserted that Judge Afiuni and Eligio Cedeño were political prisoners. This is clearly inaccurate, especially since no evidence was presented that they were politically active."

Could there be a more impoverished, wilfully blind idea of who is a political prisoner? As a matter of international human rights law, for one thing, it doesn't depend upon whether the prisoner was politically active; it depends on how the authorities treat him or her.

If the authorities don't want an independent judiciary, they will arrest independent judges. It is the authorities wshose motivation is political. A judge to whom this happens, like Justice Afiuni, is being politically persecuted.Can Suggitt really be so blind as not to know this?

-----

It's too bad that the Venezuelan Revolution, after some useful reforms, has turned down the usual path towards one party, one person dictatorship. Believers like Suggett may eventually recognize their mistake and move on; their victims are those, like Justice Afiuni, who sit in a dank cell while Suggett writes his apologetics.

President Chavez

Venezuela's President Hugo Chavez is trying mightily to destroy the independence of the judiciary in Venezuela.

On December 11, Justice Maria Afiuni was pulled down from the bench and thrown into custody by intelligence police.

She had had the temerity to release a person on bail, a person who the Chavez government had charged with fraud, but had never provided proof, after 34 months in pretrial custody.

Under the Venezuelan Constitution, 24 months is the maximum for pretrial custody, and the lawyers for the prisoner argued for his release.

The prosecutor, despite being advised and ordered to appear, failed to do so, indicating that he was "too busy."
In the absence of any showing why the detention was justified, she released the accused on bail.

She was arrested within the hour, and sent to prison. Just as bad, before her bail hearing, President Chavez called Justice Afiuni a "bandit" on national television, and called for 30 years in custody in her case. He also said that "in Bolivarian times" she would have been summarily executed.

Also on television, the lead prosecutor stated that there was no evidence of any bribe being paid, nor of any contact between the judge and the accused outside of the court. The crime, she explained, was having contact IN court,in the absence of the prosecutor. According to this theory, by the simple expedient of refusing to enter the courtroom, the Prosecution could keep someone in custody indefinitely.

No doubt as a result, bail was denied her despite the presumption that a person of previous good character is entitled to liberty pending trial.
The Caracas Bar Association pointed out that no judge will be willing to release anyone, if they themselves then face arrest. They also pointed out the obvious, that if the prosecution disagrees with a judicial decision, they must appeal it, not arrest the judge. The path being followed by the Chavez government destroys the independence of the judiciary, they said.
Justice Afiuni returns to court February 18th. In theory, she could be released. But it would take a brave judge, or prosecutor, to rub egg in the face of President Chavez by releasing her pending trial.

UPDATE: On February 18th, and again through the first half of March, Judge Afiuni remains in custody. No evidence against her has yet been produced.

Her preliminary hearing date was March 6th. On that day, a court would have jurisdiction to release her on bail, if so persuaded. However, the assigned judge dodged the task, sending out word that he was "indisposed". Because, according to Venezuelan law a preliminary hearing "must take place within sixty days of a charge being laid", a second preliminary date was scheduled for March 18th. Once again, no hearing was held, and no proof presented. This time, it was because the formal charging document, the "causa", was not in the court file for some inexplicable reason.

FURTHER UPDATE:

On April 19, a further preliminary date had been set. This time, Justice Afiuni was not brought to court because "there was no transport available". So, once again, no evidence was presented against her. That makes four times she has been denied her trial rights. The next court date is May 3rd. On April 25th, the Washington Post had a story about the case:

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/24/AR2010042401791.html?hpid=topnews