Thursday, December 9, 2010

Venezuela's Case Against Afiuni Falls Apart


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.

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.


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.


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.


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.

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."

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.

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