of Justice in Caracas. Below, image altered.
On January 18, 2022, the National Assembly (AN) voted in December 2020, passed the partial
modification to the Organic Law of the Supreme Court of Justice (TSJ), which is added to the
list of legal reforms of September 2021 regarding the Organic Codes of Criminal, Penitentiary
and Military Justice Procedures and the Laws for the Protection of Victims, Witnesses and
Other Procedural Subjects, of the Investigative Police and Protection of Liberty and Personal
Security (hereinafter “protection law”). These reforms include new instruments analyzed by
VenezuelaAlert, such as the laws on genocide and crimes against humanity, and reparations
for victims and guarantees of justice.
This set of reforms to the justice system is part of an ongoing official strategy to show
“cooperation” with the International Criminal Court (ICC) before the opening of an
investigation that in itself constitutes an acknowledgment that the Government’s attempts to
simulate justice lack credibility. The same conclusion is obtained even highlighting all the
positive aspects of the modified regulations because they do not attack the power structure
that generates repression and impunity in the country; on the contrary, they reinforce it in
practice.
The Organic Code of Criminal Procedure, among other advances, reduces from 8 to 6 months
the period of investigation of the prosecution to decide whether to process people before a
judge (article 295); preliminary hearings, if postponed, will be held within the following 5 days,
and no longer in 20 (article 309). The Organic Code of Military Justice took a step in the
demilitarization of justice by annulling the legality of trial of civilians by military courts, as
stated in article 261 of the Constitution, and that the Bolivarian National Guard continues to
guard prisons, by transferring the function to the Bolivarian National Police. The new
protection law recognizes the legitimacy of human rights organizations to represent victims in
protection processes and so on other advances might be added as long as it is an abstract
exercise.
The legal changes are intended to tilt the spirit of reforms towards a progressive side, but they
mean nothing in the face of the power structure that the government strictly protects: the lack
of independence of the judicial system. In fact, the reform of the Organic Law of the Supreme
Court of Justice (TSJ) exacerbates this structural problem given that the Judicial Nominations
Committee, the evaluation body that proposes the list of candidates for TSJ Magistrates, will
not only be made up of 11 members of the National Assembly and 10 from civil society,
contradicting article 270 of the Constitution that orders its integration only by members of civil
society, but now the latter will be previously selected by the National Assembly through a
“Preliminary Committee”, figure that does not exist in the Constitution and that clearly
destroys the effective participation of civil society in the formation of the country’s highest
court.
The political-partisan composition of the TSJ is not a minor thing. It means exercising absolute
control over all judicial decisions in Venezuela. As determined by the Independent
International Fact-Finding Mission on the Bolivarian Republic of Venezuela (FFMV), “the
Supreme Tribunal appoints provisional judges through its Judicial Commission (…) a series of
Supreme Tribunal resolutions have progressively granted it further-reaching powers to select
and discipline first instance and appellate judges. According to sources consulted, the Judicial
Commission makes nominations and removals based mainly on personal or political
considerations”.
This conclusion is inevitable if the scourge of provisional judges has been worsening since
2003, when the last public competition for the appointment of judges was held. According to
the most recent data available, by April 2019, of the more than 2,000 judges in the country,
85.3% had a provisional, temporary, or accidental nature. The Judicial Commission continues
to enjoy the power of free appointment and removal in the face of any decision adverse to the
national government, thus displaying a broad power of intimidation over judges. As the FFMV
denounced, the control of justice brought a “discernible downward turn in judicial
independence” with the retaliatory actions against Judge Maria Lourdes Afiuni.
Legal reforms and other political measures such as reopening cases and issuing isolated rulings
protecting the chain of command or altering the structure and powers of police bodies without
affecting their political-partisan dependency, even though they violate international
obligations of the State, are forming a smokescreen to appear cooperative with the human
rights system and international criminal justice. Actually, the State maintains its repressive and
protective judicial system intact for those close to power, so there is no possible justice
without a democratic re-institutionalization. Without the founding basis of the system, judicial
independence, any effort to find out the truth of the crimes, do justice, render accounts, and
repair the victims will be riddled with deception and propaganda.
On April 16, 2022, when the deadline for the State to inform the ICC prosecutor about the
progress of the investigation expires, it will be necessary to demonstrate with updated
evidence why it was justly decided to open the investigation: the Venezuelan State lacks the
genuine will to reform its justice system and hold authors accountable for the crimes
committed. The advocacy work ahead is to dismantle the official narrative of “cooperation”
point by point.