September 22, 2008

III. The Courts

If there was a single point on which most Venezuelans were in full agreement when Chávez first took office, it was the need to overhaul the country's judiciary. Decades of rampant corruption and political meddling had left Venezuela's justice system dysfunctional and profoundly discredited. As a result, Chávez's call for drastic measures to clean up the courts enjoyed support from even his most ardent critics.

The enactment of the 1999 Constitution provided an opportunity for Venezuela to salvage its judicial branch. The constitution created a new Supreme Court and established essential protections for judicial independence, such as the requirement of a two-thirds majority vote of the National Assembly to impeach a justice. It thus laid the groundwork for the judiciary to fulfill its essential role as guarantor of the rule of law and protector of basic rights.

Unfortunately, however, the Chávez government has since abandoned this commitment to judicial independence. In 2004, displeased with a series of controversial judicial rulings, the president and his supporters in the National Assembly launched a political takeover of the Supreme Court. They enacted a new law expanding the court from 20 to 32 members. Since the law allowed the legislature to select new members by simple majority vote, this meant the governing coalition was able to use its then slim majority in the National Assembly to obtain an overwhelming majority of seats on the court. (At the time the court was believed to be evenly divided between Chávez allies and critics.) The law also gave the National Assembly the power to remove justices from the bench with a simple majority vote rather than the two-thirds majority required by the 1999 Constitution. The law, in short, made it possible for the governing coalition to both pack and purge the country's highest court.

Chávez supporters attempted to justify the law as a response to efforts by some government opponents to subvert the rule of law. They claimed, in particular, that Supreme Court justices who opposed Chávez had been disregarding the dictates of the law and deciding cases to advance the opposition's political agenda.

It is certainly true that some members of the opposition had subverted the rule of law during the 2002 coup. It might also be true that some judges had allowed their political convictions to unduly influence their application of the law. But if so, the appropriate response would have been to pursue measures aimed at limiting such political interference and promoting judicial independence. Instead, Chávez and his allies chose to rig the system to favor their own interests.

Within weeks of the law's enactment, the three Supreme Court justices responsible for the rulings that had most angered the Chávez camp were gone from the bench. In December 2004 the governing coalition in the National Assembly filled their vacancies, as well as the 12 new seats, with political allies. Over the next few years, this packed Supreme Court fired hundreds of lower court judges and appointed hundreds more to permanent judgeships.

The political takeover of the Supreme Court effectively neutralized the judiciary as an independent branch of government. The packed court has largely abdicated its role as a check on arbitrary state action. When the Chávez government has pursued measures that undermine human rights protections, the court's response has typically been one of passivity and acquiescence. It has failed, in particular, to counter assaults on the separation of powers, such as the 2004 court-packing law and, more recently, a 2007 constitutional reform package. It has also failed to safeguard fundamental rights in prominent cases involving the media and organized labor.[87]

International Norms on Judicial Independence

The OAS and the Inter-American Democratic Charter

Democracy is indispensable for human rights, and an independent judiciary is indispensable for democracy. The 34 foreign ministers of the Organization of American States (OAS) recognized these propositions when they adopted the Inter-American Democratic Charter in 2001.[88] The Charter defines the "[e]ssential elements of representative democracy" to include "access to and the exercise of power in accordance with the rule of law" and "the separation of powers and independence of the branches of government."[89]

The Inter-American Commission on Human Rights emphasized this link between judicial independence and democratic rule of law in its 2003 report on Venezuela:

The observance of rights and freedoms in a democracy requires a legal and institutional order in which the laws prevail over the will of the rulers, and in which there is judicial review of the constitutionality and legality of the acts of public power, i.e., it presupposes respect for the rule of law. Judiciaries are established to ensure compliance with laws; they are clearly the fundamental organs for preventing the abuse of power and protecting human rights. To fulfill this function, they must be independent and impartial.[90]

International Human Rights Treaties     

In addition to its commitment to democracy under the Inter-American Charter, Venezuela is party to human rights treaties-including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights-that require it to safeguard the independence and impartiality of its judiciary.[91] The United Nations Human Rights Committee, that monitors the implementation of the ICCPR by states party, has ruled that for a tribunal to be "independent and impartial,"[92] the executive must not be able to control or direct the judiciary,[93]judges "must not harbor preconceptions about the matter put before them, and … must not act in ways that promote the interests of one of the parties."[94]

The practical safeguards that this obligation entails are set forth in a series of "basic principles" on the independence of the judiciary endorsed by the United Nations General Assembly.[95] These principles include:

  • The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats, or interferences, direct or indirect, from any quarter or for any reason.[96]
  • Any method of judicial selection shall safeguard against judicial appointments for improper motives.[97]
  • The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions, and the age of retirement shall be adequately secured by law.[98]
  • Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the conclusion of their term of office, where such exists.[99]
  • A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing….[100]
  • Judges shall be subject to suspension or removal only for reasons of incapacity or behavior that renders them unfit to discharge their duties.[101]
  • All disciplinary, suspension, or removal proceedings shall be determined in accordance with established standards of judicial conduct.[102]

As this chapter shows, in the past several years, Venezuela has flouted all of these principles. In doing so, it has undermined its rule of law and degraded its democracy.

Background

The Pre-Chávez Judiciary

When Chávez became president in 1999, he inherited a judiciary that had been plagued for years by influence-peddling, political interference, and, above all, corruption. In interviews with Human Rights Watch, lawyers from across the political spectrum described a system in which justice had often been for sale to the highest bidder. Former Attorney General Isaías Rodríguez recalled how the country's top administrative court in the past actually established set fees for resolving different kinds of cases.[103]

A 1996 report on the Venezuelan justice system by the Lawyer's Committee for Human Rights painted a grim portrait of the judiciary:

Rather than serving the constitutional role of defender of the rule of law and protector of the human rights of Venezuelan citizens against the government, the courts had often become highly politicized adjuncts of the parties. They were manipulated by groups of lawyers, judges, political and business actors for private economic gain. And court procedures had become so slow, cumbersome and unreliable that disputants avoided them at all costs.[104]

In terms of public credibility, the system was bankrupt. A 1998 survey by the United Nations Development Program found that only 0.8 percent of the population had confidence in the judiciary.[105] That distrust translated into public outrage, and in the presidential election of that year, candidates across the political spectrum-including Hugo Chávez Frías-promised to clean up the system.

Reforming the Justice System

Once in office, President Chávez launched an ambitious effort to reform the Venezuelan state that included holding a referendum to convene a National Constituent Assembly, which then drafted a new constitution that went into effect in December 1999.[106]

One of the first acts of the National Constituent Assembly was to declare, in August 1999, that the judiciary was in a state of emergency. It suspended the tenure of judges and created an emergency commission which it empowered to suspend judges who showed signs of wealth incommensurate with their salaried income, and to remove judges who, for example, had adopted decisions "manifestly disregarding the law."[107] In the following months, the emergency commission removed hundreds of judges from their posts.[108]

The 1999 Constitution created a new Supreme Court, with twenty seats, and established protections for judicial independence, such as the requirement of a two-thirds majority vote of the National Assembly to impeach a sitting justice. In March 2000, the Constituent Assembly selected 20 justices, with a nearly unanimous vote, to sit on the new court.

The new constitution also established that international human rights treaties ratified by Venezuela have precedence over domestic laws.[109] Consequently, the new Supreme Court would have the authority as well as the responsibility to ensure that the government "immediately and directly applied" the rights set forth in those treaties.

Due to the overwhelming public consensus that judicial reform was needed, these measures to overhaul and strengthen the courts had broad support from across the political spectrum.

A Polarized Supreme Court

The consensus around the need to strengthen the judiciary largely dissolved as the country, including its Supreme Court, grew increasingly polarized during President Chávez's first term in office. This polarization intensified as a divided court delivered controversial rulings on issues that were central to the political struggle between the Chávez government and its opponents, including the 2002 coup and the 2004 recall referendum.

By early 2004, it was common wisdom within Venezuela's legal community that the 20-member Supreme Court was evenly divided between opponents and allies of President Chávez. Each camp controlled some of the court's six chambers. The opposition camp was said to have a majority of seats in the electoral chamber, while the pro-Chávez camp had a majority in the constitutional chamber, as well as on the six-member Judicial Commission that handles many of the court's administrative affairs. The court's president at the time, Iván Rincón Urdaneta, was considered to be an ally of President Chávez.

The first of the controversial rulings came in August 2002, four months after the attempted April 11 coup d'etat against President Chávez.[110] A slim Supreme Court majority held that it did not have enough evidence to initiate a criminal investigation of four generals accused of participating in the coup.[111] The ruling was adopted after the court had recused two pro-Chávez justices and appointed substitute justices to the panel hearing the case.[112] The ruling immediately provoked expressions of outrage from Chávez and his supporters.[113] And the following day, the Chavista majority in the National Assembly created a "Special Commission to Investigate the Crisis in the Judicial Branch regarding alleged irregularities committed by Supreme Court Justices", which a few months later recommended removing one justice, on grounds unrelated to the decision (see discussion below), and investigating another who participated in this decision.[114]

The second explosive issue-the recall referendum to remove Chávez from office-produced an open confrontation within the Supreme Court. In March 2004, the National Electoral Council (Consejo Nacional Electoral, CNE) invalidated 876,017 of the 2,708,510 signatures that the opposition had obtained in favor of holding a recall referendum, leaving the opposition short of the number of signatures required to compel such a referendum.[115] After a group of NGOs presented a constitutional challenge against CNE's decision, the Supreme Court's electoral chamber-with a majority of opposition judges-held that the signatures were valid and the referendum should be carried out.[116] A week later, the constitutional chamber, composed of a pro-Chávez majority, decided that it had jurisdiction to review the electoral chamber's decision and overruled it.[117] As a result, the opposition launched a new petition drive to obtain the number of signatures necessary to carry out the recall referendum.

The 2004 Court-Packing Law

In May 2004, President Chávez signed a law that severely undermined the independence of the country's judicial branch, just a day after the National Assembly had passed it. The new Organic Law of the Supreme Court (Ley Orgánica del Tribunal Supremo de Justicia, LOTSJ) fundamentally altered the composition of the country's highest court, as well as its relationship to the other branches of government.[118]

Power to Pack the Court

The new court-packing law increased the Supreme Court from 20 to 32 justices, adding two justices to each of the court's six chambers.[119] The new justices could be selected with a simple majority vote of the National Assembly: a nominee who failed to receive a two-thirds majority in the first three votes could be selected by a simple majority on the fourth vote.[120] In contrast, the 20 existing justices of the Supreme Court had all received at least a two-thirds majority confirmation vote.[121]

Some proponents of the law justified this increase as a measure for alleviating the justices' workload.[122] This justification is dubious, at best. Four justices who were in office in 2004, as well as one ex-justice at the time, told Human Rights Watch that only two of the six chambers had any difficulty keeping up with their caseloads (the constitutional chamber and the "political administrative" chamber).[123] According to Iván Rincón Urdaneta, who was then the court's president and considered a Chávez ally, the only justification for increasing the number of justices in the other chambers was to help them handle administrative tasks.[124] However, it is not difficult to imagine other means to alleviate the administrative responsibilities of the justices, such as by having them delegate the work to their staff. Nor, for that matter, is it difficult to imagine ways to alleviate the caseload of those chambers with more cases, such as by assigning them more clerks or creating adjunct tribunals to handle cases in which the jurisprudence is already clearly established.

Whatever the justification, however, the impact of the increase in judges on the judiciary's independence was unmistakable. It allowed the governing coalition in the National Assembly, which at the time enjoyed a slim majority of seats, to radically alter the balance of power in the country's highest court, ensuring that each of its chambers was controlled by justices sympathetic to the government's political agenda.

Power to Purge the Court

Venezuela's 1999 Constitution seeks to guarantee the independence of justices by granting them a single 12-year term and establishing an impeachment process that requires a two-thirds majority vote by the National Assembly, after the "citizen branch"-which consists of the "Moral Council," composed of the attorney general, the ombudsman, and the comptroller-has determined that the justice has committed a "serious offense" (falta grave).[125]

The 2004 law eliminated this guarantee. While the impeachment of justices still requires a two-thirds majority vote, the law creates two new mechanisms for removing justices, short of impeachment and without the need for a two-thirds majority. One entails suspending justices pending an impeachment vote, the other entails nullifying their appointments.

The first mechanism is found in a new provision which establishes that when the "citizen branch" determines that a justice has committed a serious offense, and unanimously recommends the justice's dismissal, then the justice will be automatically suspended pending an impeachment vote by the National Assembly.[126] The law requires that the president of the assembly call for a hearing and an impeachment vote within 10 days. However, such deadlines are habitually disregarded by the assembly, and there is no effective mechanism for enforcing them. Consequently, if the president of the assembly chooses not to bring the issue to a vote, the justice could remain suspended indefinitely.

The definition of "serious offense" is broad and includes highly subjective categories such as "threaten or damage public ethics or administrative morale" and "made decisions that threaten or damage the interests of the Nation."[127]

The National Assembly has also bestowed upon itself the power to "nullify" justices' appointments by a simple majority vote in one of three circumstances: the justice provided false information at the time of his or her selection to the court; the justice's "public attitude … undermines the majesty or prestige of the Supreme Court" or of any of its members; or the justice "undermines the functioning" of the judiciary.[128]

This provision is a clear ploy to circumvent the constitutional requirement that justices must be removed with a two-thirds majority vote of the National Assembly. Calling this action the "nullification of appointment" cannot disguise the fact that it entails firing the justice.

What makes the provision particularly dangerous is the fact that two of the three criteria for "nullification" are entirely subjective and, therefore, allow the assembly's majority to target justices identified with the political opposition. In fact, at the time, a leading member of the National Assembly's pro-government coalition, Iris Varela, explicitly acknowledged this as the law's intent, saying "the 10 coup-backing justices (magistrados golpistas) who supported the de facto government of Pedro Carmona Estanga should be off the Supreme Court, and the new law passed in the National Assembly will achieve this goal."[129]

Implementation of the Court-Packing Law

The new law provided the basis for a political takeover of the Supreme Court. Within weeks of its passage, the three justices responsible for the rulings most criticized by the Chávez camp were off the court. And, by the end of the year, pro-government members of the National Assembly had filled their seats, as well as the 12 new seats created by the law, with people known to be political allies.

The impact of this political takeover soon extended to the entire judiciary. The packed Supreme Court, in charge of appointing and removing lower court judges, significantly altered the composition of the judiciary.

Removal of Arrieche

Less than a month after the court-packing law was passed, the pro-government majority in the National Assembly used it to remove Franklin Arrieche Gutiérrez, the justice who had penned the Supreme Court's ruling on the 2002 coup. Instead of following the constitutional procedure to impeach the justice, which would have required a two-thirds majority, the National Assembly used the court-packing law, which allowed it to annul his designation with a simple majority vote.

The effort to remove Arrieche had begun the day after the court delivered the controversial ruling in August 2002. Outraged by the ruling, Chávez supporters in the National Assembly created a "Special Commission to Investigate the Crisis in the Judicial Branch regarding alleged Irregularities Committed by Supreme Court Justices." Four months later, the assembly voted to approve the commission's recommendation to annul Arrieche's appointment as Supreme Court justice.

The grounds for removal had nothing to do with the ruling on the coup. Instead, the commission based its recommendation on a finding that Arrieche had provided false information to the National Constituent Assembly when it appointed him to the court two years earlier.[130] Specifically, while Arrieche claims he met the constitutional requirements to become a justice, the commission ruled that he did not.[131]

Arrieche successfully appealed to the Supreme Court to block his removal, arguing that he had never been granted an opportunity to refute the allegations before the commission, and that that the removal violated the constitutional requirement of a two-thirds majority vote. The court issued a temporary injunction, blocking Arrieche's removal, while it decided his constitutional challenge.[132] Two years later, the injunction remained in place-preserving Arrieche's position as a justice-as the court had yet to rule on the merits of the case.

In June 2004, a month after the National Assembly passed the court-packing law, the pro-government coalition used it to do what it had been unable to do two years earlier: remove Arrieche without a two-thirds majority vote. The coalition applied the provision of the new law that allows for the annulment of judicial appointments with a simple majority vote.[133]

Arrieche again appealed to the Supreme Court. This time, however, the constitutional chamber rejected his petition, arguing that the National Assembly was merely applying the new law. The chamber inexplicably disregarded the fact that the removal of a justice without a two-thirds majority vote violates the 1999 Constitution[134] and failed to consider that Arrieche's removal was incompatible with Venezuela's international human rights obligation to guarantee the independence of the judiciary.[135]

A few months after Arrieche's removal, the constitutional chamber revoked the Supreme Court's decision on the April 11 coup that the justice had drafted in 2002.[136]

Retirement of Martini and Hernández

In July 2004, a month after Arrieche's removal, two justices responsible for another Supreme Court ruling that had outraged the Chávez government left the court. Facing the risk of being indefinitely suspended as a consequence of the new law, Alberto Martini Urdaneta and Rafael Hernández Uzcátegui resigned from the court.

Martini had written and Hernández had signed the March 2004 electoral chamber ruling that overturned the National Electoral Council's invalidation of thousands of signatures calling for a recall referendum.[137] (The third justice who signed the decision was a substitute justice filling in on that particular case.)

The ruling had generated a strong reaction from the government, including statements by then-Vice-President José Vicente Rangel, who held it was a "mafia-type and immoral" ruling issued by "perpetrators of a coup."[138] Two days later, the "Moral Council" announced that it would investigate the justices' performance in this case.[139] And, in June 2004, it decided that the justices had committed a "serious offense" and sent the cases to the National Assembly for it to decide whether or not to vote the justices off the court.[140]

Facing the threat of an indefinite suspension as a consequence of the court-packing law, the two justices opted for retirement. Under the new law, justices accused by the "citizen branch" of committing a "serious offense" are indefinitely suspended from their positions until the National Assembly votes on whether or not to remove them from the court.[141] According to Radio Nacional de Venezuela, an official radio station, the two judges requested their retirement in order to avoid the consequences of the sanction that the Moral Council would impose due to their participation in the ruling on the 2004 referendum.[142] Two sources very close to the case confirmed this explanation to Human Rights Watch.[143]

Packing the Court

In December 2004, the pro-Chávez majority in the National Assembly filled the 12 new seats created by the court-packing law, as well as five vacancies (which included the seats previously occupied by Arrieche, Martini, and Hernández). The assembly also appointed 32 substitute justices-who temporarily fill in for justices who are on leave or recused in a specific case-bringing the total to 49 appointees in one day.[144]

Leaders of the congressional majority made it clear they were only appointing individuals who would not rule against the government. "This time we will not score own goals," declared Pedro Carreño, a pro-government congressman, immediately before the list of appointments was made public. "[I]n the list of potential candidates there is no one who will act against us."[145]

Impact on Lower Court Judges

The impact of the court-packing law extended to the entire judiciary. Over the next several years, the newly packed Supreme Court would fire hundreds of judges and appoint hundreds more. This massive turnover of judges only compounded the damage already done to the credibility of Venezuela's judiciary.

Under Venezuelan law, the Supreme Court is responsible for the appointment and removal of all the country's lower court judges through a "Judicial Commission" made up of six justices. After the court-packing law was passed in May 2004, one of the law's principal sponsors, the prominent Chavista legislator Luis Velázquez Alvaray, was appointed by his colleagues in the National Assembly to fill one of the new seats on the Supreme Court. He was then was appointed by his colleagues in the packed court to serve as president of the Judicial Commission.

From that position, Velázquez Alvaray presided over the removal of 400 lower court judges from their posts.[146] At the time, 80 percent of Venezuela's judges held provisional or temporary posts and therefore, under Venezuelan law, could be summarily fired.[147] In addition, the Judicial Commission under Velázquez Alvaray appointed hundreds of permanent lower court judges.

In theory, one positive effect of the overhaul of the judiciary has been reducing the number of provisional and temporary judges. In 2004 only 20 percent of the country's 1732 judges held permanent appointments and enjoyed the rights established in the constitution.[148] According to information provided by the Venezuelan government to the Inter-American Commission on Human Rights, as of December 2007 almost 1000 judges (or 54 percent) were tenured.[149]

Unfortunately, however, the value of this development, in terms of strengthening the independence and credibility of the judiciary, is overshadowed by the fact that it was carried out by the Judicial Commission of a Supreme Court that was itself subject to a political takeover.

A Compliant Court

Since the political takeover of 2004, the Supreme Court has repeatedly failed to fulfill its role as a guarantor of the rule of law in the face of arbitrary state action. When President Chávez and his supporters in the National Assembly have pursued measures that undermine the protection of human rights, the Supreme Court's response has typically been one of passivity and acquiescence. The court has failed, in particular, to respond to assaults on the separation of powers, such as the 2004 court-packing law and the 2007 constitutional reform package.

On occasion, the court has issued rulings upholding human rights in discrete cases, but it has repeatedly failed to do so in the most prominent and politically sensitive cases of arbitrary state action by the Chávez government.

The 2004 Court-Packing Law

Shortly after Chávez signed the court-packing law, several prominent Venezuelan jurists filed petitions with the Supreme Court challenging its constitutionality. Among other issues, their petitions challenged new provisions for removing justices on the grounds that such measures did away with the constitutional requirement of a two-thirds majority vote.

Despite the urgent nature of these appeals, it took the court three years to rule on the petitions, at which time it dismissed them on procedural grounds without ever addressing the merits.[150]

The court attempted to justify this evasion by claiming, inaccurately, the petitioners were no longer "interested" in the matter.[151] The evidence the court provided for this inaccurate claim was the fact that there had been "no procedural activity" by the petitioners for over a year.[152] Yet it was the court, not the petitioners, that was responsible for the inactivity. As one justice (who disagreed with the court's handling of these cases) explained to Human Rights Watch, the petitioners had already completed their submissions and were waiting for the court to respond.[153] In one case, for example, what was pending was a determination by the court as to whether it would handle the case as a "purely legal matter" (cuestion de mero derecho), requiring only "a final report" from the petitioners, or as a case in which petitioners would need to provide empirical evidence to substantiate their claims.[154]

Moreover, even if there had been omissions on the part of the petitioners, the Supreme Court could still have addressed the merits of the case. Indeed, the 2004 Supreme Court law expressly establishes that the court can "supplement, de oficio, the deficiencies of petitioners" in cases involving constitutional challenges like these.[155] Moreover, the court itself has ruled that it can address a constitutional violation, de oficio, even when the petitioners have not themselves identified that particular violation, or when their petition is somehow "deficient,"[156] or even when the court considers the petitioners' claim inadmissible.[157]

 

The 2007 Constitutional Reform Process

The Supreme Court similarly avoided addressing challenges to efforts by Chávez and his congressional supporters to enact sweeping reforms of the constitution in 2007. The reforms included measures that would have dramatically expanded the powers of the executive branch by, among other things, authorizing the president to suspend fundamental rights indefinitely during states of emergency without any Supreme Court oversight.[158]

Specifically, the proposed changes would have eliminated the constitutional prohibition on suspending due process guarantees during states of emergency-including the presumption of innocence, the right against self-incrimination, and other guarantees of a fair trial-in violation of international law. The reform would also have made it possible for a wide range of other fundamental rights to be suspended indefinitely, including the guarantee of equality and non-discrimination, and the freedom of thought, conscience, and religion, all of which are considered so fundamental that countries are not permitted to derogate from their obligations to respect them even in a state of emergency. In addition, the reform would have eliminated specific time limits on states of emergency and it also would have lifted the requirement that the Supreme Court review the constitutionality of any emergency decree that suspended rights.

Petitioners questioned before the Supreme Court both the content of the reforms and the process through which Chávez and his supporters were seeking to enact them. In terms of process, petitioners objected to Chávez and his congressional supporters seeking to enact a major reform package, with 69 amendments, through a single yes-or-no vote in a national referendum. They argued that this procedure violated the constitutional provision that requires that a constituent assembly be convoked to enact any reforms that modify the "fundamental principles and structure" of the document.[159] 

The Supreme Court declined to address any of these challenges. It argued that it could not review them until after the referendum had been held. According to the court, given that that the constitutional reform process is "complex" and composed of various steps, the process could not result in any effects (gravamen) on individuals until it concluded. (In a dissenting opinion, Justice Pedro Rafael Rondón Haaz held that the court could review the procedure that was being implemented to reform the 1999 Constitution, and that the proposed reform would in fact modify the constitution's structure and fundamental principles.)[160]

Conflicts of Interest

The credibility of the rulings in both the court-packing and constitutional reform cases was further marred by the Supreme Court's unwillingness to recognize and address the blatant conflicts of interest of certain justices in each case, thus compromising their impartiality.

In the case of the court-packing law, the Supreme Court rejected a request to recuse three justices who had been appointed to fill the new seats created by the law, including Justice Luis Velázquez Alvaray, who had been a principal sponsor of the law as a member of the National Assembly. Clearly, the three justices had a direct interest in the final decision of the case, given that if the law were annulled, their appointments would no longer be valid. Yet the court argued, inexplicably, that there was not even "a possibility" that this could influence their decision. Disregarding the evident conflict of interest that was the basis of the recusal request, it claimed that these arguments did not overturn the presumption that justices are supposed to be honorable. According to the court, their honorability "cannot be doubted given that they must decide on the validity of a law that could affect them indirectly."[161]

In the case of the constitutional referendum, the court rejected a request to recuse Justice Luisa Estella Morales Lamuño, who had participated in the drafting of the reform proposal that the petitioners were challenging. Morales, then-president of the Supreme Court, had been appointed by Chávez himself in January 2007 to serve as the executive secretary of the presidential commission that drafted the original version of the reforms. According to the rules governing the presidential commission, it had to "permanently inform the president" about its work, which would be carried out "in conformity with guidelines established by the head of state in strict confidentiality."[162]

The court simply argued that there was no evidence that Morales's participation in such a commission would undermine her independence when deciding the case.[163] Yet, while serving as executive secretary of the presidential commission that drafted the reform, she had publicly argued that it was unnecessary to carry out a constituent assembly to modify the constitution, which was one of the key questions the court was being asked to rule on.[164]

Failure to Uphold Fundamental Rights

The packed Supreme Court's pattern of passivity and acquiescence has been evident as well in critical cases involving government infringement on fundamental rights.

On occasion, the court has issued rulings protecting basic human rights. For example, in October 2005, it protected the right to freedom of expression when it ruled that the attorney general could not sue the newspaper El Universal for an editorial criticizing his office and the judiciary, given that the article was an expression of opinion and did not amount to an institutional insult.[165] In April 2006, it upheld Ibéyise Pacheco Martini's right to due process, finding that the prosecutor who accused her of perjury had failed to ensure that Pacheco was legally represented at the hearing at which she was charged, and had denied her the right to be heard.[166]

However, the court has failed to uphold basic rights in several of the most prominent and politically sensitive cases.

Freedom of Expression

The Supreme Court failed to protect the right to freedom of expression and the right to due process and the rule of law in the high profile case of Radio Caracas Television (RCTV). As we document more fully in chapter 4, the court, by failing to resolve key rights issues, allowed the government to use its regulatory power in a discriminatory and punitive manner against a channel because of its critical coverage of Chávez and his government.

In December 2006, Chávez announced his decision not to renew RCTV's broadcasting license, which was due to expire the following May, explaining that Venezuela would not tolerate a channel that was "at the service of coup-plotting" and "against the dignity of the Republic." Chávez had repeatedly threatened such non-renewal in response to critical media coverage, accusing RCTV of involvement in the 2002 coup. Three months later, his communication and information minister formally adopted a decision to refuse to renew RCTV's license, without giving RCTV an opportunity to respond to the public accusation of criminal actions and broadcasting infractions cited by government authorities as grounds for the decision not to renew its concession. The government did, however, renew the license of Venevisión, a rival channel that Chávez had also repeatedly accused of involvement in the coup but that had since cut its overtly anti-Chávez programming.

RCTV and some of its supporters turned to the Supreme Court for relief, submitting appeals aimed at blocking the implementation of the president's decision. RCTV journalists and owners requested the court to protect their rights to freedom of expression, due process, and equal treatment.

The Supreme Court, however, failed to protect these fundamental rights. Instead, the court put off making a final judgment on the claims and refused to issue a temporary injunction to protect the petitioners while they awaited that judgment. In decisions by two separate chambers, the court, in questionable maneuvers-including disregarding key facts-evaded addressing the petitioners' claims. At this writing, more than a year after RCTV's license expired and it was taken off the public airwaves, the court still had not issued a final judgment on the legality of the government's actions.

In stark contrast with its handling of the RCTV petitions, the Supreme Court responded immediately to a petition by opponents of RCTV, issuing an injunction that allowed a newly created state channel to take control of RCTV's transmitters so that it could broadcast across the country.

Freedom of Association

The Supreme Court similarly failed to uphold the freedom of association of Venezuelan workers when it dismissed a petition to clarify the proper role of the state in union leadership elections. As we document in chapter 5, state interference in union elections, in direct violation of international standards on labor law practice, has been a widespread problem in Venezuela throughout Chávez's presidency. The court's failure to issue a clear ruling has effectively allowed the government to continue to violate workers' basic right to freely elect their representatives.

The Chávez government has interpreted the 1999 Constitution to require that all union elections be supervised and certified by a state institution, the National Electoral Council, and has exploited this requirement in ways that have undermined public sector unions identified with the political opposition. At the same time, when questioned by the International Labor Organization (ILO) about this practice, which is inconsistent with international law, the government has claimed that state certification of union elections is not in fact mandatory.

In May 2006, the National Press Workers' Union asked the Supreme Court to resolve this ambiguity and bar mandatory government involvement in union elections. The union argued that such mandatory state organization of elections violates international law and thus contravenes the Venezuelan constitution.

Rather than affirm workers' right to freely elect their representatives, the Supreme Court skirted the issue. The court dismissed the request for legal interpretation on the grounds that there was no contradiction between Venezuelan and international law. Yet it failed to indicate which of the two contradictory interpretations of the law-the one that the government presented before the ILO or the one that it applied in practice in Venezuela-was the correct one. As such, the Supreme Court left the ability of workers to freely organize their elections in limbo.

Recommendations

At this point, there is no easy way to reverse the damage done to the independence of the Venezuelan judiciary by the 2004 court-packing law, especially given the fact that the credibility of the National Assembly, which is responsible for judicial appointments, was itself damaged by the opposition's boycott of the 2005 legislative elections. 

Under these circumstances, Human Rights Watch recommends as an extraordinary measure that, afterthe 2010 legislative elections, the new National Assembly implement a one-time ratification process to legitimize the composition of the Court, for example, by requiring a two-thirds majority affirmation vote for each Supreme Court justice whose appointment occurred after the passage of the 2004 Supreme Court law. Measures should then be taken to permit the lawful removal of any justice who does not receive a two-thirds majority vote during this process. Any resulting vacancies should be filled through a selection process that is open, transparent, and ensures broadest possible political consensus.

More immediately, the current National Assembly should:

  • Repeal the provisions of the Supreme Court law that undermine the court's independence by allowing justices to be removed by a simple majority vote.

Once the National Assembly has completed the ratification process, the new Supreme Court should seek to reassume its role as an independent guarantor of fundamental rights. Specifically it should:

  • Resolve quickly and impartially appeals involving allegations of infringements of fundamental rights, particularly if the court's delay would result in an irreparable harm; and

·Recuse justices who face clear conflicts of interests to ensure that all decisions are adopted impartially, and that the court is seen to be impartial, as well as acting impartially.

[87]Portions of this chapter were originally published in Human Rights Watch, Rigging the Rule of Law: Judicial Independence Under Seige in Venezuela, vol. 16, No. 3(B),June 2004, http://www.hrw.org/reports/2004/venezuela0604/ (accessed August 18, 2008). At that time, Human Rights Watch conducted extensive interviews with four Supreme Court justices (and one former justice), including then-Supreme Court President Iván Rincón Urdaneta. In researching this chapter, Human Rights Watch requested interviews with multiple Supreme Court justices, but despite repeated requests, with two exceptions (Justice Blanca Rosa Mármol de León and Justice Fernando Ramón Vegas Torrealba), these interviews were not granted. For both reports, Human Rights Watch also conducted extensive interviews with Venezuelan legal scholars and jurists.

[88] Inter-American Democratic Charter, Organization of American States,adopted September 11, 2001, AG/doc.8 (XXVIII-E/01), art. 7: "Democracy is indispensable for the effective exercise of fundamental freedoms and human rights in their universality, indivisibility and interdependence, embodied in the respective constitutions of states and in inter-American and international human rights instruments."

[89] Inter-American Democratic Charter, art. 3: "Essential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government" (emphasis added).

[90] Inter-American Commission on Human Rights, "Report on the Situation of Human Rights in Venezuela," OEA/Ser.L/V/II.118, December 29, 2003, http://www.cidh.org/countryrep/venezuela2003eng/toc.htm (accessed July 3, 2008), paras. 150-1.

[91] The American Convention on Human Rights provides that: "Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of (. . .) any other nature" (emphasis added). American Convention on Human Rights ("Pact of San José, Costa Rica"), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, ratified by Venezuela on June 23, 1977, art. 8(1). The International Covenant on Civil and Political Rights (ICCPR) also imposes an obligation to guarantee the independence of the judiciary in Article 14 (1): "All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…" (emphasis added). International Covenant on Civil and Political Rights, adopted December 16, 1966, General Assembly Resolution 2200 A (XXI), entered into force March 23, 1976, ratified by Venezuela on August 10, 1978.

[92] ICCPR, art. 14 (1).

[93]Bahamonde v. Equatorial Guinea, Communication No. 468/1991, October 20, 1993, CCPR/C/49/D/468/1991, para. 9.4.

[94]Karttunen v. Finland, Communication No. 387/1989, October 23, 1992, CCPR/C/46/D/387/1989, para. 7.2.

[95] Basic Principles on the Independence of the Judiciary, adopted September 6, 1985, endorsed by United Nations General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 ST/HR/1/Rev. 6(Vol. 1/Part1).

[96]Ibid., art. 2.

[97] Ibid., art. 10.

[98] Ibid., art. 11.

[99] Ibid., art. 12.

[100] Ibid., art. 17.

[101] Ibid., art. 18.

[102] Ibid., art. 19.

[103] Human Rights Watch interview with Isaías Rodríguez, then-Attorney General, Caracas, Venezuela, May 14, 2004.

[104] The Lawyers Committee for Human Rights and The Venezuelan Program for Human Right Education and Action, "Halfway to Reform: The World Bank and the Venezuelan Justice System," August 1996, http://humanrightsfirst.org/pubs/descriptions/halfway.htm (accessed July 8, 2008).

[105] United Nations Development Program, Justice and Governability. Venezuela: judicial reform in progress [Justicia y gobernabilidad. Venezuela: una reforma judicial en marcha], (Caracas: Editorial New Society [Editorial Nueva Sociedad], 1998), p. 143. Supreme Court of Justice, Executive Directorate of Magistry, Coordinating Unit of the Project to Modernize the Judiciary, "Project to Improve the Administration of Jusice in the Context of Conflict Resolution in Venezuela", (Proyecto para la Mejora de la Administración de Justicia en el Contexto de la Resolución de Conflictos en Venezuela),p. 8.

[106] The 1999 Constitution combines novel ideas of popular participation with a clear commitment to human rights, the separation of powers, pluralism, and the rule of law. Among other things, it gives constitutional rank to human rights treaties and limits the rights that could be suspended in states of emergencies. It establishes several forms of direct citizen participation, including recall referenda by which voters could revoke the mandate of all elected officials, including the president. Venezuelans voted by a wide margin (72 percent) to enact the new constitution in December 1999. National Electoral Council [Consejo Nacional Electoral, CNE], "Resultados Electorales," http://www.cne.gov.ve/estadisticas/e012.pdf (accessed July 22, 2008).

[107] Decree "Reorganization of the Judiciary and the Penitentiary System", ("Reorganización del Poder Judicial y el Sistema Penitenciario)", Official Gazette, No. 36805, 1999, http://www.oas.org/juridico/spanish/ven_res51.pdf (accessed July 14, 2008)

[108] Tribunal Supremo de Justicia, Dirección Ejecutiva de la Magistratura, Unidad Coordinadora del Proyecto de Modernización del Poder Judicial, "Proyecto para la Mejora de la Administración de Justicia en el Contexto de la Resolución de Conflictos en Venezuela,"p. 23.

[109] Constitution of the Bolivarian Republic of Venezuela, art. 23. "The treaties, pacts and conventions relating human rights which have been executed and ratified by Venezuela have a constitutional rank, and prevail over internal legislation, insofar as they contain provisions concerning the enjoyment and exercise of such rights that are more favorable than those established by this Constitution arid the laws of the Republic, and shall be immediately and directly applied by the courts and other organs of the Public Power."

[110] Opposition to the Chávez government intensified in November 2001 after Chávez passed 49 economic laws by presidential decree, including land reforms and measures to tighten state control of the oil industry. Following labor disputes at the national oil company, the main labor confederation and business chamber called a general strike on April 9, 2002. On April 11, members of the political opposition and civil society joined the labor and business organizations in a massive protest to demand Chávez's resignation. The protest march of some half a million people changed its planned route and headed to the presidential palace, where Chávez supporters had gathered. The protesters and Chávez supporters clashed violently near the palace, leaving 19 people dead and more than 150 injured, including both government supporters and members of the opposition. A group of military officials forced Chávez from office in the wake of the violence. The president of the business chamber Fedecámaras, Pedro Carmona Estanga, declared himself president and proceeded to dissolve the National Assembly, dismiss the magistrates of the Supreme Court, and call for new presidential elections after a year. Street protests by Chávez supporters continued and more than 40 people were killed during the second eruption of violence. The short-lived Carmona government soon collapsed under military and popular pressure, as well as international repudiation, and Chávez returned to power on April 14. Human Rights Watch, "Venezuela," World Report 2003 (New York: Human Rights Watch, 2004), http://hrw.org/wr2k3/americas10.html.

[111] On May 24, 2002, Attorney General Isaías Rodríguez requested the Supreme Court to investigate four generals-Efraín Vásquez Velazco, Pedro Pereira Olivares, Héctor Ramírez Pérez and Daniel Lino José Comisso Urdaneta-for their participation in the events of April 11, 12, and 13 of 2002. The Supreme Court concluded that the Attorney General's Office had not presented sufficient evidence to warrant the investigation. First, the court concluded that the crime for which they were accused did not carry with it a clearly stipulated punishment, in which case investigating it would violate the principle of legality. Secondly, the Court concluded that there was not sufficient evidence to prove the acts that the Attorney General had ascribed to the generals, and that the events that took place in April did not occur in the manner in which the Attorney General had presented them. Supreme Court Full Accidental Chamber, Franklin Arrieche Gutiérrez, Case No. AA10-L-2002-000029, August 14, 2002, http://www.tsj.gov.ve/decisiones/tplen/Septiembre/SENTENCIA%20DE%20LOS%20MILITARES.htm (accessed July 8, 2008).

[112] The decision was adopted by Justice Antonio García García, who noted that both justices had described the events of April as a coup d'etat. Supreme Court, Antonio J. García García, Case No. 02-00029-3, July 2, 2002, http://www.tsj.gov.ve/decisiones/tplen/Julio/Perdomo%20fondo.htm (accessed July 28, 2008); Supreme Court, Antonio J. García García, Case No. 02-00029-5, July 2, 2002, http://www.tsj.gov.ve/decisiones/tplen/Julio/Mora%20fondo.htm (accessed July 28, 2008).

In an interview given at the beginning of 2005, Omar Mora Díaz, one of the recused justices, stated that it was predictable that the Supreme Court would be divided "in two" in the decision it issued on August 14, 2002. Mora said: "… it was evident, from the Supreme Court meeting that took place on April 12, 2002, that a significant number of judges understood that a power vacuum had occurred, and the second group of us was convinced otherwise: what had taken place was a coup d'état. It is clear that the conspiracy extended all the way to the Supreme Court." Política Urgente, "Omar Mora, Presidente del TSJ, promovera sancion a los magistrados golpistas y revolucion judicial," February 7, 2005, http://www.aporrea.org/actualidad/n55923.html(accessed July 8, 2008).

When the Supreme Court annulled its decision on the April 11 coup with a ruling issued in March 2005, it held that Justice Antonio García García did not have the power to recuse Justices Perdomo and Mora, and therefore the Supreme Court was not properly established when it decided the case. Supreme Court Constitutional Chamber, Franciso Antonio Carrasquero López, Case No. AA50-T-2004-003227, March 11, 2005, http://www.tsj.gov.ve/decisiones/scon/Marzo/233-110305-04-3227.htm (accessed July 7, 2008).

[113] Chávez stated that "what they have written was a mess." "Chávez – Tribunal puso la plasta," posted to YouTube, April 15, 2007, http://uk.youtube.com/watch?v=Wd4E-Af82Uc&mode=related&search= (accessed July 16, 2008); "Dura reacción en Caracas por no juzgar a los golpistas," Gaceta de los Negocios, August 16, 2002; "Advertencias de Chávez no impiden fallo favorable del Supremo," Agencia EFE, August 15, 2002; "Venezuela-El Supremo absuelve a los cuatro militares acusados de participar en la intentona," Europa Press, August 14, 2002.

[114]Official Gazette, No. 37584, December 4, 2002, http://www.tsj.gov.ve/gaceta/diciembre/041202/041202-37584-01.html (accessed July 8, 2008); Supreme Court Constitutional Chamber, José Manuel Delgado Ocando, Case No. 02-3053, June 22, 2004, http://www.tsj.gov.ve/decisiones/scon/Junio/1205-220604-02-3053.htm (accessed July 8, 2008).

In March 2005, the Supreme Court revoked the August 2002 decision. Supreme Court Constitutional Chamber, Francisco Antonio Carrasquero López, Case No. AA50-T-2004-003227, March 11, 2005, http://www.tsj.gov.ve/decisiones/scon/Marzo/233-110305-04-3227.htm (accessed July 8, 2008)

[115] Resolution No. 040302-131, Official Gazette, No. 181, 2004, http://web.sumate.org/democracia-retroceso/attachments-spanish/T2%20ST03b%20N5%20Resoluci%C3%B3n%20del%20CNE%20sobre%20las%20firmas%20recogidas.pdf (accessed July 8, 2008).

[116] On March 15, 2004, the electoral chamber of the Supreme Court, presided over by the Justice Alberto Martini Urdaneta, decided on a challenge presented by members of the Coordinadora Democrática, who were linked to the opposition. These included Julio Borges (national coordinator of Primero Justicia), César Pérez Vivas (secretary general of COPEI), Henry Ramos Allup (secretary general of Acción Democrática), Jorge Sucre Castillo (president of Proyecto Venezuela), and Ramon José Medina and Gerardo Blyde (representatives in the National Assembly). The court stated that the creation of new criteria for validating signatures could hinder efforts to reach the number necessary to convoke a recall referendum on the presidency, and that this generated a possible violation of the constitution. The court also held that it was necessary to solve the problem quickly, since prolonging it would pose risks to the recall process. Consequently, the electoral chamber ordered, as a precautionary measure, that the effects of the CNE's decision be suspended, and mandated that the 876,017 signatures be added to those that had been validated by the CNE, bringing the total number of signatures to 2,708,510. Supreme Court Electoral Chamber, Rafael Martini Urdaneta, Case No. AA70-E-2004-000021, March 15, 2004, http://www.tsj.gov.ve/decisiones/selec/marzo/24-150304-x00006.htm (accessed July 14, 2008).

[117] Supreme Court Constitutional Chamber, José Manuel Delgado Ocando, Case No. 04-0620, March 23, 2004, http://www.tsj.gov.ve/decisiones/scon/Marzo/442-230304-04-0620.htm (accessed July 8, 2008).

[118] Organic Law of the Supreme Court [Ley Orgánica del Tribunal Supremo de Justicia de la República Bolivariana de Venezuela], Official Gazette, No. 37.942, 2004,http://www.tsj.gov.ve/legislacion/nuevaleytsj.htm.

Organic laws are laws that govern the structure and operation of government institutions. The LOTSJ replaced the previous Organic Law of the Supreme Court (Ley Orgánica de la Corte Suprema de Justicia) of July 1976.

[119] Ibid., art. 2

[120] Ibid., art. 8.

[121] While there is disagreement among Venezuelan jurists as to whether this two-thirds majority was or is actually required by the former or current constitution, most agree that Supreme Court nominees generally did receive such a vote prior to the 1999 Constitution. Human Rights Watch interviews with various jurists, Caracas, May 2004.

[122] Human Rights Watch interviews with Calixto Ortega, then National Assembly member, Caracas, Venezuela, May 6, 2004, and Iván Rincón Urdaneta, then-Supreme Court president, Venezuela, May 13, 2004.

[123] Human Rights Watch interviews with Iván Rincón Urdaneta, then-Supreme Court president, May 13, 2004, Juan Rafael Perdomo, then-Supreme Court justice, May 13, 2004, Blanca Rosa Mármol de León, Supreme Court justice, May 13, 2004, Carlos Martini, then former Supreme Court justice, May 14, 2004, and Carlos Escarra, then former Supreme Court justice, May 16, 2004.

[124] Human Rights Watch interview with Iván Rincón Urdaneta, May 13, 2004.

[125] Constitution of the Bolivarian Republic of Venezuela, arts. 264 and 265. Article 265 states: "Supreme Court Justices will be subject to removal by the National Assembly by a super-majority of two-thirds of its members, after a hearing is granted the affected party, in cases of serious offenses found by the Citizen Branch, in accordance with the law."

[126] Organic Law of the Supreme Court, art. 23 (3): "Supreme Court Justices will be subject to suspension or removal from their responsibilities, in cases of serious offenses, by the National Assembly, following the petition and determination of offenses by the Citizen Branch. In case of removal, the [decision] must be approved by a super-majority of two-thirds of the members of the National Assembly, following a hearing for the Justice. At the moment that the Citizen Branch determines that an offense is serious and unanimously seeks removal, the Justice will be suspended from his or her post, until the definitive decision of the National Assembly. Likewise, [the Justice] will be suspended if the Supreme Court declares that there are grounds to prosecute him or her; in which case, this measure is different from the suspension sanction established by the Organic Law of the Citizen Branch."

[127] Article 11 of the Organic Law of the Citizen Branch states: "The following are considered a serious offense on the part of Supreme Court Justices: 1. When they attempt to harm, threaten, or damage the public ethics and the administrative morale established in the present Law…. 4. When they adopt decisions that attempt to harm or damage the interests of the Nation." Organic Law of the Citizen Branch [Ley Orgánica del Poder Ciudadano], Official Gazette, No. 37.310, 2004, http://www.tsj.gov.ve/legislacion/nuevaleytsj.htm, art. 11.

[128] Organic Law of the Supreme Court, art. 23 (4): "The National Assembly, by a simple majority, will be able to annul the administrative act by which a Justice is appointed, principal or temporary, when this person has supplied false information at the time and for the purposes of his or her nomination, which prevented or distorted the fulfillment of the requirements established in this Law and in the Constitution of the Bolivarian Republic of Venezuela; or when the public attitude of these [sic.], aims to harm the majesty or prestige of the Supreme Court, of any one of its Chambers, of the Justices of Judicial Branch [sic.]; or when it aims to harm the functioning of the Supreme Court, one of its Chambers, or the Judicial Branch" (emphasis added.)

[129] Xavier de la Rosa, "Dip. Iris Varela: Magistrados que apoyaron gobierno de facto de Carmona deben quedar fuera del TSJ," Venpres, May 3, 2004, http://www.aporrea.org/actualidad/n16224.html (accessed July 7, 2008).

[130]Official Gazette, No. 37.584, December 4, 2002, http://www.tsj.gov.ve/gaceta/diciembre/041202/041202-37584-01.html (accessed July 7, 2008), p. 2.

[131] Arrieche told Human Rights Watch that the charges against him were inaccurate. First, according to Arrieche, the National Assembly's decision to annul his appointment had not taken into account the Supreme Court's interpretation of what requirements should be met by magistrates who were appointed by the Constituent Assembly and subsequently ratified by the National Assembly. According to the Supreme Court, when the National Assembly ratified these magistrates' appointments, it should only analyze their performance, and not other constitutional requirements. (Supreme Court Constitutional Chamber, Iván Rincón Urdaneta, Case N°: 00-3035, December 12, 2002, http://www.tsj.gov.ve/decisiones/scon/Diciembre/1562-121200-00-3035%20.htm (accessed July 16, 2008)).

Secondly, Arrieche argued that even if other constitutional requirements were applicable, he fulfilled them. The Venezuelan constitution requires that to be a Supreme Court magistrate, the person must have been a lawyer for 15 years and have a post graduate degree, must have been a law professor for at least 15 years, or must have been a judge for at least 15 years in the specific area of law that he or she will cover in the court. Constitution of the Bolivarian Republic of Venezuela, art. 263 (3). Arrieche told Human Rights Watch that he has over 15 years of teaching experience. The Special Commission's report recognizes that Arrieche has taught in the Universidad Católica Andrés Bello since 1987, but argued that five of these years did not count because Arrieche had been on "paid leave."

Human Rights Watch telephone interview with Franklin Arrieche Gutiérrez, former Supreme Court justice, Caracas, April 30, 2008; email communication from Franklin Arrieche Gutiérrez to Human Rights Watch, June 12, 2008.

[132] Supreme Court Accidental Chamber [Sala Accidental], José Manuel Delgado Ocando, Case No. 02-3053, December 10, 2002, http://www.tsj.gov.ve/decisiones/scon/Diciembre/3168-101202-02-3053.htm (accessed July 7, 2008).

[133]Official Gazette, No. 37.962, June 17, 2004, http://www.tsj.gov.ve/gaceta/junio/170604/170604-37962-01.html (accessed July 7, 2008).

[134] Supreme Court Constitutional Chamber, José Manuel Delgado Ocando, Case No. 02-3053, June 22, 2004,http://www.tsj.gov.ve/decisiones/scon/Junio/1205-220604-02-3053.htm (accessed July 7, 2008).

[135] In Pastukhov v Belarus (Communication No. 814 /1998, August 5, 2003 CCPR/C/78/D/814/1998), the removal of a constitutional court judge by presidential decree was deemed to be an attack on the independence of the judiciary in violation of Article 14(1) of the ICCPR, to which Venezuela is also a party. The judge had been elected for a period of 11 years but was removed from office after three years on the grounds that his term of office had expired following the entry into force of a new constitution.

[136] Supreme Court Constitutional Chamber, Franciso Antonio Carrasquero López, Case No. AA50-T-2004-003227, March 11, 2005, http://www.tsj.gov.ve/decisiones/scon/Marzo/233-110305-04-3227.htm (accessed July 7, 2008).

[137] Supreme Court Electoral Chamber, Alberto Martini Urdaneta, Case No. AA70-E-2004-000021, March 15, 2004, http://www.tsj.gov.ve/decisiones/selec/Marzo/24-150304-X00006.htm (accessed July 7, 2008).

[138] Eugenia Ramiro, "El Reafirmazo contra Chávez divide al Tribunal Supremo," América Económica, vol. 257, March 18, 2004, http://www.americaeconomica.com/numeros4/257/reportajes/mariaeugenia257.htm (accessed July 7, 2008).

[139] "Consejo Moral inició procedimiento a Magistrados de la Sala Electoral", Radio Nacional de Venezuela, March 17, 2004, transcribed by the Ministry of Communication and Information, http://rnv.gov.ve/noticias/?act=ST&f=2&t=4251 (accessed July 7, 2008).

[140] The decision of the Moral Council was adopted on June 18, 2004. Official Extraordinary Gazette, No. 5712, Caracas, June 22, 2004, http://www.tsj.gov.ve/gaceta_ext/junio/220604/220604-5712-01.html (accessed July 7, 2008).

[141] Organic Law of the Supreme Court, art. 23 (3).

[142] "Designada nueva directiva del TSJ, aprobadas jubilaciones", Radio Nacional de Venezuela, July 8, 2004, transcribed by the Ministry of Communication and Information, http://rnv.gov.ve/noticias/?act=ST&f=2&t=6576 (accessed July 7, 2008). "Cambios en TSJ por jubilaciones favorecerán a el oficialismo", La Voz, July 7, 2004, http://www.la-voz.net/seccion.asp?pid=18&sid=1755&notid=89706&fecha=07/07/2004 (accessed July 7, 2008).

[143] Human Rights Watch interview (name withheld), April 30, 2008; Human Rights Watch interview (name withheld), May 23, 2008.

[144] Ministry of Communication and Information, "Designados 49 Magistrados del Máximo Tribunal Venezolano," December 14, 2004, http://www.mci.gob.ve/noticias/1/2011/designados_49_magistrados.html (accessed July 7, 2008).

[145] Javier Pereira, "Chavismo designa hoy 49 nuevos magistrados," El Nacional, December 13, 2004, http://infovenezuela.org/T1ST02P7V1.HTM (accessed July 7, 2008). "Nosotros no nos vamos a meter autogoles… En el grupo de postulados no hay nadie que vaya actuar contra nosotros."

[146] "TSJ determinó sobreprecio en terrenos adquiridos por Velázquez Alvaray," Radio Nacional de Venezuela, July 3, 2006, transcribed by the Ministry of Communication and Information, http://www.rnv.gov.ve/noticias/index.php?act=ST&f=27&t=35177&hl=alvaray&s=1331d552c16ca9881690d7a027899398 (accessed July 7, 2008).

[147]The Supreme Court justified giving the Judicial Commission such broad discretion by pointing out that provisional judges have not taken part in the public competitions required to enter the judiciary, and by stating that temporary appointments are necessary to keep the judiciary functional while it undergoes the structural reorganization process prompted by the LOTSJ. For example, in the case of Yolanda del Carmen Vivas Guerrero, whose appointment as "provisional" judge in the state of Mérida was revoked in June 2005, the court held that while tenured judges can only be removed or sanctioned after receiving an oral public hearing with full due process guarantees, provisional judges can be summarily fired at the discretion of the Judicial Commission. Supreme Court Constitutional Chamber, Carmen Zuleta de Merchán, Case No. 07-1417, December 20, 2007, http://www.tsj.gov.ve/decisiones/scon/Diciembre/2414-201207-07-1417.htm (accessed July 7, 2008).

This decision was later cited as supporting precedent when the Supreme Court decided to deny Rafaela de Morales's appeal to be reinstated as temporary judge. Supreme Court Political-Administrative Chamber, Levis Ignacio Zerpa, Case No. 00517, April 30, 2008, http://www.tsj.gov.ve/decisiones/spa/Abril/00517-30408-2008-2005-5065.html (accessed July 7, 2008).

[148] The remaining 80 percent held positions were "provisional" judges (52 percent), "temporary" judges (26 percent), or other non-permanent postings (2 percent). The provisional judges held their posts until a public competition was held to select the judges who will fill them on a permanent basis. Temporary judges were appointed to fill temporary openings, such as those created when a sitting judge takes a parental or sick leave. Human Rights Watch e-mail correspondence with Ricardo Jiménez Dan, then-executive director of the Magistracy, Supreme Court, May 20, 2004.

[149] According to the IACHR, the Venezuelan government reported that "as of December 31, 2007, judges nationwide totaled 1,840, of whom 443 (24%) were provisional, 108 (5.87%) were special alternates, 303 (16.47%) were temporary, and 986 (53.59%) were tenured." Inter-American Commission on Hurnan Rights, "Annual Report of the IACHR 2007," ch. IV (Venezuela), http://www.cidh.org/annualrep/2007eng/Chap.4g.htm (accessed July 24, 2008), para. 280.

[150] Supreme Court Constitutional Chamber, Jesús Eduardo Cabrera Romero, Case No. 04-1385, June 27, 2007, http://www.tsj.gov.ve/decisiones/scon/Junio/1325-270607-04-1385.htm (accessed July 7, 2008).

[151] Ibid., section IV.

[152] The Supreme Court used this argument to close seven cases. It closed the eighth case arguing that the petitioner had requested the court to refrain from deciding his case, but avoided explaining that he did so because the court had failed to address his claim. Tulio