June 17, 2004

IV. Disposable Judges

Provisional Judgeships

Venezuela denies its judges one of the most basic safeguards of judicial independence: security of tenure.While this problem existed long before President Chvez came to office, it has become particularly acute as the country has become politically polarized over the last few years.The vast majority of the country's judges hold provisional or temporary appointments.The tenuousness of their postings makes them more vulnerable to external pressures aimed at influencing their application of the law.

The Venezuelan constitution safeguards judicial independence by requiring that judges be selected through public competitions and removed only through legally sanctioned procedures.[16]The constitution requires that these procedures provide the judges with due process (including the right to be heard).[17]The laws regulating the procedures for removal require that it be motivated by misconduct on the part of the judge.[18]

Yet only 20 percent of the country's 1732 judges currently hold permanent appointments and enjoy the rights established in the constitution.The remaining 80 percent hold positions as "provisional" judges (52 percent), "temporary" judges (26 percent), or other non-permanent postings (2 percent).[19]The provisional judges hold their posts until a public competition is held to select the judges who will fill them on a permanent basis.Temporary judges are appointed to fill temporary openings, such as those created when a sitting judge takes a parental or sick leave.

The Judicial Commission of the Supreme Court, made up of six justices including the Supreme Court president, is in charge of appointing and removing these non-tenured judges.The commission maintains that it can summarily dismiss temporary judges, without cause and without the due process protections afforded permanent judges.[20]Provisional judges, by contrast, are entitled to the same security of tenure as permanent judges, at least until the public competition are held to fill their posts.Yet, as described below, the Judicial Commission has also summarily fired provisional judges.

International human rights monitors have repeatedly criticized Venezuela's reliance on provisional judges.In 2001, the United Nations Human Rights Committee expressed its concern that, under the current system, Venezuelan judges could be removed for merely fulfilling their judicial duties.[21]In 2003, the Inter-American Commission on Human Rights echoed this concern, observing that "having a high percentage of provisional judges has a serious detrimental impact on citizens' right to proper justice and on the judges' right to stability in their positions as a guarantee of judicial independence and autonomy."[22]

Venezuelan justice officials, judges and jurists of all political stripes also acknowledge the problem.In interviews with Human Rights Watch, the Supreme Court president, other Supreme Court justices, the attorney general, the ombudsman, and current and former judges all conceded that the prevalence of provisional and temporary appointments undermines judicial independence.

A major obstacle toward translating this consensus into real change has been, ironically, the constitutional requirement that judges be selected through public competitions.When the constitution came into effect in 1999 there were already a large number of provisional judges in the country.Figures from 1997 show only 40 percent of judges holding permanent appointments.[23]The number of provisional judges increased considerably after the judicial emergency declared in 1999 led to large numbers of dismissals.(And it has increased further since then as the judiciary has opened new courts in an effort to increase access to justice.)Turning this large-and growing-number of provisional judgeships into permanent ones requires holding public competitions for each one.

Toward that end, the judiciary launched a program of public competitions for judgeships in November 2000.It was the most ambitious program of its sort that Venezuela had seen, and produced over 200 permanent judges over the next two years.[24]This addressed only a fraction of the provisional judgeships, however, and in order to make a real difference, the program should have been expanded and accelerated.

Instead, in March 2003, the program was suspended.Human Rights Watch received contradictory explanations for what prompted the suspension.Supreme Court President Ivan Rincn Urdaneta said it was because the evaluation system had broken down due to a variety of factors, including efforts by powerful law firms to control some evaluation committees and the decision of numerous evaluators to abandon the program.[25]Others involved in the program dispute this account.Ren Molina, a former Inspector General of the Judiciary who helped design the competition program, insists that the "double-blind" procedure for selecting evaluators and administering the competitions made it virtually impossible for special interests to take over the committees.[26](Molina further recalled receiving pressure from government officials to rig the competitions in favor of specific candidates.)The Network of Watchers (Red de Veedores), a nongovernmental organization that monitored the program, did report instances of possible collusion between participants and jurors and various administrative irregularities, but nothing that would justify suspending the program.[27]

Critics of the government have suggested that the real motive for suspending the program was the desire of Judicial Commission members to continue naming and removing judges at their own discretion.Whatever the true motive might be, the outcome has been precisely that: the Judicial Commission continues to exercise virtually unchecked authority to appoint and remove judges.

Judges Summarily Fired

The danger of denying judges secure tenure was apparent earlier this year when three judges were summarily fired after releasing people detained during anti-government protests.The firings occurred on March 2, when Venezuela was in the midst of the most serious unrest it had seen since the attempted coup against the government in April 2002.An opposition demonstration on February 27 had turned violent as civilians clashed with units of the National Guard in central Caracas.Street protests and confrontations continued through the next week, leaving thirteenpeople dead and over 100 wounded.Government forces detained hundreds of people and, after violently abusing some of them, sought court orders for their prolonged detention pending prosecution.

Three Caracas judges who received such cases were Miguel Luna, Petra Jimnez and Maria Trastoy.Luna received the case of two detained opposition legislators on Saturday, February 28; Jimnez received the case of a detained man on Monday, March 1; and Trastoy received the case of six other detainees at the end of that same day.

All three judges ruled that the public prosecutors had not presented sufficient evidence to warrant ongoing detention of the suspects and ordered their immediate and unconditional release.[28]Their rulings would all be upheld subsequently by appellate courts.[29]

All three were dismissed from their posts on Tuesday, March 2. They received notices from the Supreme Court President Ivan Rincn Urdaneta informing them that the Supreme Court's Judicial Commission had decided that morning to nullify their appointments "due to observations that were presented before this office."[30]The notices did not reveal what the "observations" had been, nor why they might have warranted their dismissal.

When asked about the three judges, Rincn told Human Rights Watch that they had been temporary judges, who had been in their posts for a short period, and were not entitled to the administrative procedures afforded permanent and provisional judges.He insisted, however, that this did not mean that they had been denied their due process rights, as they were entitled to challenge the decision through an "appeal for reconsideration" (recurso de reconsideracin) to the Commission.Only one of the judges had chosen to do so, he said, and that one had been reinstated.The other two had chosen instead to take their claims to the press.He said they were working with an opposition political party and were "just doing politics."[31]

Rincn's account was inaccurate on several levels.None of the judges had temporary appointments.Two were provisional judges and therefore, by his own admission, entitled to the normal disciplinary procedure.[32]The third judge, Petra Jimnez, who had an appointment as a "special substitute" (suplente especial), had been serving as a judge continuously for almost three years.

All three judges did in fact challenge their dismissals through "appeals for reconsideration" to the Judicial Commission.One of them, Luna, was indeed reinstated, (though he has since been summarily fired once again.)The other two, Trastoy and Jimnez, report receiving no response to their appeals.[33]

The recourse provided by the appeal process does not change the fact that these judges were fired without a hearing.They may be able to present a defense, ex post facto, through the appeals process.However, this right to appeal is largely meaningless so long as they are not informed of the reasons for their dismissals (since it requires them to guess the charges they must defend themselves against)-and so long as the commission maintains that its decision is entirely discretionary.

Human Rights Watch obtained a copy of a ruling issued by the Judicial Commission in response to an "appeal for reconsideration" submitted by another judge who had been summarily fired under questionable circumstances.Mercedes Chocrn was removed from her post as a temporary judge in January 2003 after she attempted to carry a judicial inspection of a military base where a general was being held on charges of alleged crimes committed in the context of anti-government activity.(The purpose of the inspection was to ensure that the government was complying with precautionary measures ordered by the Inter-American Commission on Human Rights.)The Judicial Commission's ruling did not address the reasons for Chocrn's dismissal but merely provided a legal basis for its claim to complete discretion in removing temporary judges, arguing that this faculty has "no substantive limit whatsoever" and that its reasons "cannot be questioned or subject to review."[34]

Second Highest Court Shut Down

The problem of due process for dismissed judges is not limited to those who are summarily fired by the Judicial Commission.In one case from 2003, a court was effectively shut down after its judges were dismissed and the Supreme Court neglected to review their appeals.

Under existing procedures, permanent and provisional judges may be dismissed by an administrative body within the judicial branch, known as the Commission of Functioning and Restructuring of the Justice System, based on charges brought by the Inspector General of the Judiciary.The judges have an opportunity to defend their record before the commission.They are allowed five days to prepare their written defense, and the commission ten days to make its determination.[35](The commission sometimes grants the judges more than their allotted time, and itself often takes more than its allotted time.)The judges may appeal the commission's decision to the Supreme Court, but in contrast with the hasty dismissal proceedings, the appeal process can drag out indefinitely, leaving the dismissed judges in limbo and the validity of their dismissals in doubt.[36]The resulting uncertainty is especially problematic when it involves judges who have handled controversial cases.

The most notorious case of this sort is that of three judges who were dismissed from the First Administrative Court (Corte Primera de lo Contencioso Administrativo, CPCA) in October 2003.The CPCA is the second highest court in Venezuela and has national jurisdiction over cases involving challenges to administrative actions by the government (with the exception of those taken by cabinet-level officials, which are reviewed directly by the Supreme Court).In the year prior to their dismissal, the CPCA judges had granted numerous appeals challenging policies and programs of the Chvez government.In several cases the court ruled on behalf of municipal governments (run by opposition mayors) who challenged military interference with their own police forces.In another notable case, in August 2003, it ruled that hundreds of Cuban doctors sent by the Cuban government to work as volunteers in poor communities could not practice medicine in Venezuela without being certified by the Venezuelan medical association.[37]

President Chvez publicly denounced the court and its judges on several occasions.After the August 2003 decision on the Cuban doctors, for instance, he referred to them as "judges who shouldn't be judges," and said:

I'm not telling them what I'd like to because we're in front of the country.But the people are saying it.Go take you're decision where you want, you can carry it out in your home if you want . . . . Do you think the Venezuelan people are going to pay attention to an unconstitutional decision, well they're not going to pay attention to it.[38]

In September, in a highly unusual move, members of the Directorate of Services of Intelligence and Prevention (DISIP) arrested the driver of one of the judges as he was delivering a court document to someone outside the courthouse.The driver's action violated regulations on the handling of court documents, though the Supreme Court would rule (after the driver had spent 35 days in jail) that he had not committed a crime and order his release.[39]Two days after the arrest, President Chvez spoke out against the court, reportedly calling its chief judge a "criminal."[40]Three days later, a public prosecutor accompanied by police, reportedly armed with high-power weapons, conducted a surprise search of the CPCA courthouse.

Two weeks later, the Inspector General of the Judiciary submitted a recommendation to the Commission of Functioning and Restructuring of the Judicial System that the five CPCA judges be dismissed on the basis of an entirely unrelated issue: a determination by the Supreme Court the previous May that that the CPCA had committed an "inexcusable error" in a decision rendered in 2002.After reviewing the charge and the judges' defense, the commission ordered the dismissal of four of the judges (the fifth had already retired and therefore was not subject to sanction).[41]

Three of the judges appealed the decision to the Supreme Court, filing two appeals the following month.Venezuelan law obligated the Supreme Court to respond to each type of appeal within specified periods of time.A "hierarchical appeal" (recurso jerrquico), which they filed on November 13, warranted a ruling within 90 days.[42]And the "nullification appeal" (recurso de nulidad) filed on November 27 warranted a ruling within three days.[43]

Over half a year later, the Supreme Court has failed to rule on either of the appeals.When asked why not, Supreme Court President Ivan Rincn Urdaneta told Human Rights Watch that it was because these cases were "not a high priority."[44]

There are several reasons, however, why the Supreme Court should consider these appeals to be of highest priority.First is the simple matter of the due process rights of the dismissed judges.A second is the fact that, lacking a quorum of judges, the country's second highest court has ceased to function, leaving a huge backload of unresolved cases (by one estimate as many as 2000 cases, all involving challenges to administrative actions by the government).While Supreme Court President Rincn said the Court intends to fill the vacancies with new judges, they have yet to do so after over half a year.Moreover, it is unclear what would happen to the new appointees if the dismissed judges were to win their appeals.

A final reason the appeals should be treated as high priority is the extremely controversial nature of the case-and specifically the perception created by President Chvez's public comments, as well as the unusually aggressive police actions against the CPCA, that the dismissal reflected the will of the executive rather than the application of the law.This perception, which was shared by many of the people Human Rights Watch interviewed, has only been reinforced by the Supreme Court's failure to review the legality of the dismissals.

[16] Art. 255, Constitution of the BolivarianRepublic of Venezuela. "Appointment to a judicial position and the promotion of judges shall be carried out by means of public competitions, to ensure the capability and excellence of the participants and those selected by the juries of the judicial circuits, in such manner and on such terms as may be established by law. The appointment and swearing in of judges shall be the responsibility of the Supreme Court of Justice. Citizen participation in the process of selecting and designating judges shall be guaranteed by law. Judges may only be removed or suspended from office through the procedures expressly provided for by law."(Emphasis added.)

[17] Art. 49, Constitution of the BolivarianRepublic of Venezuela. "Due process will be provided in all judicial and administrative proceedings; consequently . . . . 2) Every person has the right to be heard in any type of proceeding, with the proper guarantees and within a reasonable time determined by law, by a competent, independent and impartial tribunal established previously. . . . ."

[18] Art. 3, Ley de Carrera Judicial (1998):"Judges will have the benefit of security of tenure in the fulfillment of their office.Consequently, they will only be subject to removal or suspension in the exercise of their function in the situations and through the process determined by this law." Art. 40:"Without prejudice to the criminal and civil penalties that might be applicable, judges will be dismissed from their posts, after receiving due process, for the following causes: . . ." (The article then lists types of conduct that provide cause for dismissal.)

[19] Information provided through e-mail correspondence with Executive Director of the Magistracy, Supreme Tribunal of Justice, Ricardo Jimnez Dan, May 20, 2004.

[20] The Judicial Commission of the Supreme Court has asserted this authority explicitly in written responses to appeals filed by judges it has summarily fired.See note 37 below.

[21]Concluding observations by the Human Rights Committee: Venezuela, 26/04/2001."An extended reform process threatens the independence of the judiciary, given the possibility that judges could be removed as a result of the performance of their duties, thus infringing art. 2, paragraph 3, and art. 14 of the Covenant."

[22] Inter-American Commission on Human Rights, "Report on the Situation of Human Rights in Venezuela," December 29, 2003, paras. 159-177.

[23] Tribunal Supremo de Justicia, Direccin Ejecutiva de la Magistratura, Unidad Coordinadora del Proyecto de Modernizacin del Poder Judicial, "Proyecto para la Mejora de la Administracin de Justicia en el Contexto de la Resolucin de Conflictos en Venezuela," p. 22.

[24] Ibid, p. 23.

[25] Human Rights Watch interview with Supreme Court President Ivan Rincn Urdaneta, Caracas, May 13, 2004.

[26] Human Rights Watch interview with Rene Molina, Caracas, May 14, 2004.

[27] Red de Veedores, "Poder Judicial y Sistema de Justicia en Venezuela 2002-3."Available at http://veedores.org/nodos/veejudicial/informes/observacionpoderjudicial.htm.

[28] Human Rights Watch telephone interviews with Maria Trastoy and Miguel Luna, May 18, 2004.

[29] Ibid.Corte de Apelaciones del Circuito Judicial Penal de la Circunscripcin Judicial del Area Metropolitana de Caracas Sala Quinta, Actuacin No. SA-5-04-1442, Caracas, April 12, 2004 (upholding ruling by Petra Jimnez).Corte de Apelaciones del Circuito Judicial Penal de la Circunscripcin Judicial del Area Metropolitana de Caracas Sala Quinta Accidental, Actuacin No. SA-5-04-1436, Caracas, April 14, 2004 (upholding ruling by Mara Trastoy).

[30] (". . . en razn de las observaciones que fueron formuladas por ante este Despacho.")Tribunal Supremo de Justicia, Sala Plena, Documents No. TPE-04-0231, Caracas, March 2, 2004 (notification to Mara del Carmen Tratoy Hombre); Tribunal Supremo de Justicia, Sala Plena, Oficio No. TPE-04-0231, Caracas, March 2, 2004 (notification to Petra Margarita Jimnez Ortega).

[31] Human Rights Watch interview with Supreme Court President Ivan Rincn Urdaneta, Caracas, May 13, 2004.

[32]Tribunal Supremo de Justicia, Direccin Ejecutiva de la Magistratura, "Designacin del Martes, 02 de Marzo de 2004."Available at http://www.tsj.gov.ve/designaciones/designacion.asp?fecha_id=93.

[33] Human Rights Watch telephone interview with Mara Trastoy, May 18, 2004

[34] Comisin Judicial, El Tribunal Supremo de Justicia, Magistrado Ponente: Luis Martnez Hernndez, Exp. No. CJ-2003-0015, 16 de junio de 2003): "Given that the petitioner does not enjoy security of tenure [estabilidad] in her post, it is evident that the [Judicial Commission] . . . . can freely revoke [her] appointment, which entails the exercise of a broad and discretional faculty for which there is no substantive limit whatsoever, since she is not protected by the limits of security of tenure of a judicial officer.From this perspective the revocation of the appointment of the petitioner established by the Judicial Commission cannot be considered a disciplinary act, that is, it does not consist of the application of a penalty based on an offense, but rather it consists of an action based on discretionary concerns; concerns which, consequently, cannot be questioned or subjected to review." (Emphasis added.)

[35] Human Rights Watch interview with member of Commission of Functioning and Restructuring of the Justice System, Laurence Quijada, Caracas, May 13, 2004.

[36] One provisional judge, Luis Enrique Ortega Ruiz, filed an appeal in September 2002 and has yet to receive a response over a year and a half later.Another provisional judge, Mara Cristina Reveron, who filed an appeal in April 2002, has yet to receive a response over two years later.

[37]"Corte Venezuela ordena dejar de ejercer mdicos Cuba en Caracas," Reuters, August 21, 2003.

[38] Unofficial transcript of radio and television program, "Al Presidente," No. 161, Aug. 24, 2003, pp. 22 24.

[39]Human Rights Watch interview with IGHTn RightsMagistrate 3)na can carry it out in your home if you want...Supreme Court Justice Blanca Rosa Mrmol de Len, Caracas, May 13, 2004.

[40] Unofficial transcript of address by President Chvez, September 20, 2003.

[41] Gaceta Oficial de la Repblica Bolivariana de Venezuela, Caracas, November 4, 2003, p. 330, 848.

[42] Art. 91, Ley Orgnica de Procedimientos Administrativos.

[43] Art. 10, Cdigo de Procedimiento Civil.

[44] Human Rights Watch interview with Supreme Court President Ivan Rincn Urdaneta, Caracas, May 13, 2004.