June 17, 2004

VI. Recommendations

To President Hugo Chvez Fras:

It is critically important that the issues here not be reduced to partisan wrangling and that the criticisms offered here not be mischaracterized as partisan attack.Human Rights Watch does not take a stand on the political conflict currently underway in Venezuela.When sectors of the opposition launched a coup d'tat in April 2002, we denounced their actions forcefully-just as we denounce any actions that jeopardize respect for fundamental human rights anywhere in the world, regardless of the political persuasion of their perpetrators.

Today the gravest threat to human rights in Venezuela is the potential political takeover of the Supreme Court made possible by the new court-packing law.It is not too late, however, for Venezuela to reverse course and salvage the independence and autonomy of its judiciary.Toward that end, the president should:

  • instruct his supporters within the National Assembly to suspend implementation of the new court-packing law immediately;
  • promote legislation that would modify those provisions of the new law that undermine the independence of the judiciary;
  • collaborate actively with the secretary general of the OAS, should the organization seek ways to help Venezuela address the crisis facing its judiciary (as described below).

To the Supreme Court:

The Venezuelan Supreme Court still has an opportunity to fix the aspects of the court-packing law that threaten its autonomy.Since the law was passed last month, the court has received several appeals that challenge the constitutionality of its most harmful provisions.The Supreme Court should:

  • act quickly to review these appeals, paying particularly close attention to the provisions of the court-packing law that allow for justices to be removed or suspended without the 2/3 majority vote required by article 265 of the Constitution.

The Supreme Court should take steps to strengthen the independence of judges.Specifically, it should:

  • reactivate the program of public competitions for selecting permanent judges;
  • cease from dismissing judges without cause and without due process, regardless of the nature of their appointment;
  • make it a priority to provide a prompt and impartial review of the appeals from judges who have been dismissed after handling controversial cases.

To international lending agencies:

The World Bank and the Inter-American Development Bank can play a significant role in strengthening Venezuela's justice system, as is clear from their involvement in the country to date.The Inter-American Development Bank provided a loan for $75 million in 2001 for projects in the Attorney General's Office and Ministry of the Interior and Justice aimed at improving the efficiency, professionalism and equity of the criminal justice system.

The World Bank has supported the Venezuelan judiciary in recent years with a $30 million loan for a project (authorized in 1993 and completed after multiple delays in 2003) that aimed to modernize the infrastructure of the judiciary, as well as a $4.7 million loan for a project (authorized in 1997 and completed in 2000) that aimed to improve the functioning of the Supreme Court.The Venezuelan judiciary has since developed a proposal for a third loan from the Bank.

The most pressing issue facing the Venezuelan justice system now is the threats to its independence and autonomy.Until these threats are addressed, improvements in other areas may only help a fundamentally flawed system function more efficiently.

Therefore, international lending agencies interested in supporting the Venezuelan judiciary should:

  • direct aid toward efforts to strengthen the independence of its judges and autonomy of its courts.
  • suspend all future assistance for justice sector projects until Venezuela takes concrete steps to address the threats to judicial independence documented in this report.

To the Organization of American States:

The Inter-American Democratic Charter, adopted by the thirty-four foreign ministers of the OAS in 2001, recognizes that "one of the purposes of the OAS is to promote and consolidate representative democracy," and reasserts the proposition (originally articulated in the Declaration of Managua for the Promotion of Democracy and Development) that the organization's mission is not limited to the defense of democracy wherever its fundamental values and principles have collapsed, but also calls for ongoing and creative work to consolidate democracy as well as a continuing effort to prevent and anticipate the very causes of the problems that affect the democratic system of government.[57]

Toward that end, article 18 of the Charter establishes that "[w]hen situations arise in a member state that may affect the development of its democratic political institutional process or the legitimate exercise of power," the secretary general and the Permanent Council of the OAS may take steps to investigate and respond to the situation, "with prior consent of the government concerned."[58]

The current crisis facing the Venezuelan judiciary threatens to have a profoundly negative affect on the country's democracy.Unless Venezuelan government takes concrete steps immediately to reverse this course, the secretary general of the OAS:

  • should use his authority under Article 18 of the Charter to engage with the Venezuelan government to address the threats to its judicial independence that affect the country's democratic system of government.

[57] Preamble, Inter-American Democratic Charter.

[58] Art. 18, Inter-American Democratic Charter."When situations arise in a member state that may affect the development of its democratic political institutional process or the legitimate exercise of power, the secretary general or the Permanent Council may, with prior consent of the government concerned, arrange for visits or other actions in order to analyze the situation. The secretary general will submit a report to the Permanent Council, which will undertake a collective assessment of the situation and, where necessary, may adopt decisions for the preservation of the democratic system and its strengthening."

The Inter-American Charter also authorizes the OAS to act without obtaining prior consent of the member state "[i]n the event of an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order" of that state (art. 20).Under such circumstances the secretary general or any other member state "may request the immediate convocation of the Permanent Council to undertake a collective assessment of the situation and to take such decisions as it deems appropriate."