Considering it of interest in the context of the political-institutional crisis that Venezuela is experiencing, we share this note from Acceso a la Justicia on the most recent decisions of the Supreme Court of Justice regarding the presidential election.
The Constitutional Chamber of the Supreme Court of Justice (TSJ) has put a judicial end to the issue of the July 28 elections with its rulings No. 211 and 212, in which it declared inadmissible the appeals for review that former presidential candidates Enrique Márquez and Antonio Ecarri filed against ruling No. 31 of the Electoral Chamber, in which the counts offered by the referee in the early hours of July 29 were certified “in an unobjectionable manner” and “categorically” validated.
All of the above has occurred despite the fact that one hundred days after the elections the National Electoral Council (CNE) has still not presented the voting results broken down table by table, a demand that more than fifty democracies in America, Europe and Asia have made to recognize the Venezuelan government. “There are doubts, serious doubts of legitimacy and legality that must be dispelled,” Colombian Foreign Minister Luis Gilberto Murillo said a few days ago, reiterating that “President Petro has been very clear: we will not recognize the results until these doubts are dispelled, which has not been done.”
The extraordinary appeal for review, provided for in numeral 10 of article 336 of the Constitution, is the last action that any person seeking justice could resort to in Venezuela during a judicial process, and is designed to protect the supremacy, integrity and uniformity in the interpretation and application of the fundamental text and the binding criteria of the Constitutional Court.
However, in the last two decades the court has been expanding its powers under this figure. Thus, through various rulings, it has assumed the power to review and annul not only appeal decisions, but also sentences of any court, including the TSJ itself in full. These powers ended up being recognized by the National Assembly (AN) in article 25 of the Organic Law of the Supreme Court of Justice (LOTSJ).
As if the above was not enough, in 2023 it went so far as to review its own decisions in order to favor the interests of the Government, as occurred with the case of the intervention of the Peasant Federation of Venezuela.
In the dark
What were the reasons why the Constitutional Court rejected the actions brought by Márquez and Ecarri? 25 days later in the case of the first decision and 22 since the second was issued, the causes are unknown, because the texts of the sentences have not been published in full.
The interpreter of the Constitution only announced on its website the operative part of its decisions, in which it reissued the operative part of the ruling no. 31 of the Electoral Chamber, which validated the results of the CNE that declared the current president Nicolás Maduro the winner of the elections of July 28. However, like the Electoral Chamber, the Constitutional Court also did not present the arguments to adopt its decisions, thus reinforcing a practice that has become routine in recent years and that we have denounced from Access to Justice.
The above omissions represent a flagrant violation of the provisions of article 243 of the Civil Procedure Code, which establishes that:
«Every ruling must contain:
1. The indication of the Court that pronounces it.
2. The indication of the parties and their representatives.
3. A clear, precise and concise summary of the terms in which the controversy has been raised, without transcribing in it the acts of the process that are recorded in the files.
4. The factual and legal reasons for the decision.
5. An express, positive and precise decision in accordance with the claim made and the exceptions or defenses raised, without in any case being able to absolve the court from the instance.
6. The determination of the thing or object on which the decision falls.
Antonio Ecarri described the response of the highest court as a “telegram with the rank of a sentence”, insufficient and lacking arguments. For his part, Enrique Márquez denounced that the TSJ has done nothing but aggravate the institutional crisis in the country and announced that he will return to that instance to ask it to order the CNE to publish the electoral records.
The Constitutional Court backtracks once again
Although the full rulings are unknown, in what the Constitutional Court has announced it is observed that one of the arguments to dismiss the actions would be res judicata, that is, that the matter has already been definitively decided by the corresponding instance.
This argument, however, contradicts the jurisprudence of the instance itself, according to which a necessary condition for the admission of a constitutional review is the existence of a definitively firm decision; that is, that res judicata has occurred, so the true reason for the rejection of the attempted appeals is not clear.
Precisely the argument of res judicata was the reason given by critics of the figure of the appeal for review to question the power of the Chamber to study cases already decided by other instances of the TSJ.
The pronouncement of the Constitutional Chamber is another demonstration that, in order to favor the interests of the Government, it is willing not only to go back on its word and throw overboard years of reiterated jurisprudence, but to endorse procedures not provided for in the law such as the one that the Electoral Chamber followed to certify the results issued by the CNE on the presidential elections of July 28. The failure to publish the rulings with which the TSJ has sought to settle the dispute regarding the election results violates the right to effective judicial protection, which requires that a ruling must be motivated and well-founded to be considered as such.
Furthermore, this irregularity confirms the worrying opacity with which the administration of justice operates in the country and only aggravates the doubts that exist regarding the veracity of the election results.
In a third decision, through judgment No. 603 of November 4, the Constitutional Court declared inadmissible the amparo action filed against the CNE and its alleged failure to publish the results of July 28. The ruling is not yet available, but in the extract published on the TSJ website it is read that the Court considered the action to be reckless and imposed a fine on the lawyer María Alejandra Díaz, who assisted the parties that filed the action. The fine imposed is equivalent to one hundred times the official exchange rate of the currency of greatest value, established by the Central Bank of Venezuela, which must be paid within a period of 5 days following notification of the decision. The Court warns the sanctioned party that failure to pay the fine within the established period will cause the sanction to increase by between one third and one half of the total fine. The Supreme Court also ordered the initiation of disciplinary proceedings against the lawyer and temporarily suspended her practice, all of this because it considered that Díaz questioned and disrespected the electoral and constitutional chambers, intending to generate anxiety and commotion in the population. In this way, the TSJ sends a message to the lawyers’ guild that may have inhibitory effects.