Prosecution of Sumate leaders in Venezuela: ABA's observer preliminary report

Originally published here

The complete report can be found here

By Douglass Cassel | Center for International Human Rights

Editor's note: At the request of Mr. Robert D. Evans, Director of Governmental Affairs of the American Bar Association, I include this disclaimer: "The attached report was prepared by Professor Douglas Cassel for the American Bar Association following his observation of preliminary proceedings in the Sumate case. It has not been approved for release by the American Bar Association and therefore does not represent the views of the Association or any of its entities but only the personal views of Professor Cassel."

This preliminary report is presented by American Bar Association observer Douglass Cassel, following a visit to Venezuela during pretrial proceedings held on July 6 and 7, 2005, in case no. 41-C-4077-04 before the Fourth Court of Control of First Instance in the Criminal Judicial Circuit of the Metropolitan Area of Caracas.

Introduction

Venezuelan prosecutors have charged two leaders of a civic group for soliciting funds from the National Endowment for Democracy (“NED”) in Washington to educate voters about their right to participate in a referendum to recall Venezuelan President Hugo Chávez Frías. Two trainers who led voter education workshops are charged as accomplices. The recall referendum, held in August 2004, was unsuccessful.

The case is brought in a context of political polarization between Venezuela’s government and the opposition, and amid disputes between its government and the government of the United States and NED, a private, non-profit organization with an independent board of directors, but which by law receives annual funding from the US State Department.

As an independent professional organization dedicated to the rule of law, the American Bar Association takes no position on Venezuela’s internal political affairs. Nor does the ABA take a position on policy differences between the governments of Venezuela and the US, or on whether the NED grant in question was advisable as a matter of policy. The ABA’s sole concern is whether the proceedings in this case comport with international standards governing criminal prosecutions and rights of political participation, and the implications of this case for the rule of law and the exercise of internationally protected rights in Venezuela.

The civic group that solicited the NED grant is called Súmate (“Join up”). Venezuelan prosecutors appear to concede that, except for the solicitation of NED funds, Súmate’s educational and promotional activities relating to the referendum were lawful. However, they accuse Súmate’s President, Alejandro Plaz, and Vice President, María Corina Machado, of violating a law that imposes prison terms of 8 to 16 years on any Venezuelan who “solicits foreign intervention in the internal political affairs of Venezuela.”

In the opinion of this observer, both that law as applied in this case and the criminal proceedings to date fail to meet international standards.

First, as applied in a novel way in this case, the law is impermissibly vague. Although it dates from early in the last century, it apparently has never previously been used to prosecute foreign funding of otherwise lawful activity in Venezuela. Its meaning in this context is so unclear as to violate international standards requiring fair notice to defendants of what conduct is deemed criminal. How are Venezuelan citizens to know whether a civic group’s seeking foreign funding for lawful activities equates to soliciting “foreign intervention”?

Second, the ambiguities in the law should be resolved in a manner consistent with Venezuela’s international legal obligations. So interpreted, the law would not criminalize Súmate’s solicitation of NED funds. International law protects both the right to solicit funds to educate citizens about the exercise of fundamental rights, and the right to make effective the exercise of the vote in a referendum.

Third, the case is brought before a Venezuelan judiciary that fails to meet international standards of judicial independence. More than 80% of Venezuelan judges, including the pretrial judge in this case, are “provisional” judges. They have no tenure and can be removed by the Supreme Court at any time without explanation.

The Supreme Court likewise lacks structural independence. During 2004 it was expanded from 20 to 32 justices, and other justices were replaced, so that the overwhelming majority of justices are now considered pro-Chávez. And their appointments may be suspended or annulled based on such subjective standards as omitting “true facts” from their opinions or bringing the judiciary into “disrespect.”

The vulnerability of the judiciary to outside influence is of particular concern in the politicized context of this case. Not only did Súmate promote a referendum to recall the President, but the President publicly accused Súmate leaders of committing crimes by soliciting NED funds. The prosecution began soon thereafter and has continued during public, mutual recriminations between Venezuelan authorities and NED.

Fourth, certain aspects of the pretrial proceedings to date violate due process of law. For example, even though Súmate leaders were the targets of the preliminary criminal inquiry, the prosecutor initially accorded them rights only as witnesses rather than as suspects. However, it is not yet clear whether these violations will ultimately be prejudicial at trial.

On the other hand, Venezuelan courts have protected the rights of the accused to remain at liberty pending trial. The Supreme Court ruled in November 2004 that they should not be incarcerated pending trial. In July 2005 the pretrial judge again refused the prosecutor’s request that they be jailed pending trial.

Despite these laudable rulings, the proceedings overall fail to meet international standards of the rule of law. Súmate leaders are being prosecuted in a highly charged political atmosphere under an impermissibly vague law, interpreted in a manner inconsistent with their internationally protected rights, before a judiciary that lacks independence and has already violated certain of their due process rights.

Moreover, during a pretrial hearing on July 6, 2005, the prosecutor warned that additional persons may be charged, and that further charges may be brought against Súmate leaders. Internationally respected human rights lawyers in Venezuela expressed concern to the observer that the prosecution of Súmate could have a chilling effect on the exercise of political rights, and that it is part of a broader pattern of persecution of groups opposed to President Chávez.

At the conclusion of that hearing on July 7, 2005, the pretrial judge overruled defense motions to dismiss and ordered that the case against all four defendants proceed to trial. Although the timing is uncertain, the trial could begin as early as August 2005.

The European Union has reportedly decided to send an observer if the case is taken to trial. For the reasons discussed in part 10 below, the ABA should likewise send an observer to the trial. An ABA decision on further action, if any, can and should await the observer’s final report.