Venezuela – Closure of Court violates the independence of the Judiciary
The centre for the independence of judges and lawyers of the International
Jurists Commission requested the competent Venezuelan authorities to reinstall
the judges of the First Court, who were dismissed in disregards of the due process
17 of November of 2003
Hugo Rafael Chávez Frias
President of the Republic
Palace of Miraflores
Av. Urdaneta. Esq. of Bolero
Caracas, Venezuela
Fax: +58 212 806-3860
Excellency,
The International Commission of Jurists (ICJ) is composed by jurists coming
from all the regions and legal systems of the world dedicated to promote the
empire of the right and the legal protection of the human rights.
The Centre for the Independence of Judges and Lawyers (CIJL) makes part of the
ICJ, its mission being to promote anywhere in the world the independence of
judges and lawyers. We would like to take this opportunity to express our utmost
surprise in regards to the destitution of all the judges who integrate the First
Administrative and Contentious Court, with the consequent closing of this Court.
These facts constitute an attack to the independence of the Judicial Power,
which are incompatible with international standards.
According to the information we have received, the past 10th of October two
of the judges of the First Court, Mr. Juan Carlos Apitz and Mr. Perkins Rocha,
were suspended by the Commission of Operation and Reconstruction of the Judicial
Power. The apparent reason for the suspension of the judges would have been
the previous detention of the driver of one of the judges of the Court, under
the charges of "concealment and retention of a public document ".
Reports received by the CIJ however reveal that the driver would have limited
himself to take, from the Court to an external relater, a file, by order of
one of the judges.
This detention was described as arbitrary by the Hall of Penal Abrogation of
the Superior Court of Justice on 22nd September 2003. In its sentence, the Hall
maintained that illicit acts had not taken place. Consequently, the reason that
gave rise to the suspension of the judges was not an illicit conduct and such
suspension should have being stopped. The suspension of both judges produced
the "de facto" closing of the First Court for lack of quorum.
Later, the 27 of October, the Commission of Operation and Reconstruction of
the Judicial Power decided to dismiss the five judges of the First Court, 13
days after receiving denunciations about "inexcusable judicial errors".
The dismissed judges questioned this decision considering that the competition
to dismiss them corresponds to the Supreme Court, body who appoints them, and
not to the Commission. Also, the judges objected the reasons for their destitution
to consider that they had not committed any serious offence that justified their
removal.
As expressed to Your Excellency in our letter of past 14
of October in the occasion of your verbal attacks against the judges of
the First Court, the independence of the Judicial Power is condition necessary
for a suitable accomplishment of the right to a fair trial and essential for
the rule of law.
One of the essential mechanisms to protect the independence of the Judicial
Power is the establishment of procedures to remove judges according to the highest
requirements of justice, thus avoiding arbitrary removals subject to criteria
that have nothing to do with the correct performance of a judge. In this sense,
we would like to call once again your attention upon the basic Principles relative
to the independence of the Judiciary adopted by the General Assembly of the
United Nations in 1985. These Principles establish clearly that the procedures
of removal of magistrates must adjust to the premise of “due process”,
stating that a person accused of having committed a crime or an offence must
be heard by the judges in charge of the case. In particular, the Principles
establish:
Principle 17. All accusation or complaint formulated against a judge for its
judicial and professional performance will transact with promptness and impartiality
according to the pertinent procedure. The judge will have the right to be heard
impartially. In that initial stage, the examination of the question will be
confidential, unless the judge asks for the opposite.
Without a doubt a judge, like any other civil employee of the State, must perform
his functions with a high degree of responsibility and in agreement with rigorous
ethical norms. Also, any civil employees accused to have committed an offence
must be put under a procedure in which the facts are exposed and, if responsible,
sanctions are to be imposed accordingly. However, this procedure must be made
according to the law and in total observance of the international standards
that guarantee a fair trial as well as the independence of the Judiciary. In
view of the legal nature of the judges of the First Court, who belong to a court
of high hierarchy, the expeditious character of their dismissal is alarming.
In effect, the destitution of a magistrate, and with more reason of all the
judges of a Court, must be the result of a procedure where the right of the
defendant is guaranteed before the Judiciary. Also, due to the seriousness that
the destitution of a magistrate of high hierarchy implies, the body in charge
of the procedure must evaluate in depth the positions and tests against him
before arriving at a decision.
Without entering into the legitimacy of the Commission to declare the destitution
of the judges of the Court, it is the swiftness of the process which led to
the decision that leaves serious doubts with respect to its impartiality and
the respect to the procedural guarantees.
The decision of the Commission of Operation and Reconstruction of the Judicial
Power after a summary procedure, added to the repeated expressions of Your Excellency
and other civil employees of your government about the necessity to remove the
judges of the First Court, take us to the conclusion that the removal of the
judges and later closing of the Court came against the interests of the government
and constitute an attack against the independence of the Court and the Judiciary
as a whole.
In this sense, we take the liberty to mention the Principles again, in which
all type of interference in the subject is prohibited and is the exclusive competition
of the Judiciary:
1. The independence of the Judiciary will be guaranteed by the State and proclaimed
by the Constitution or the legislation of the country. All the governmental
institutions and those of another nature will respect and accept the independence
of the Judiciary.
2. The judges will solve the issues before them with impartiality, based on
the facts and in total observance of the law, without being objects of restriction
or influences, incentives, illegal pressures, threats or interferences, direct
or indirect, of any sectors for whatever reason.
For these reasons, we call upon your government so that it transmits to the
competent authorities the necessity of restoring the judges of the First Administrative
and Contentious Court, who were dismissed after a procedure that did not fulfil
the requirements of the law. Also, in case of procedures of removal of judges
are reinitiated, we urge you that these procedures adjust to international standards.
Finally, we reiterate our preoccupation owing to the continuous attacks against
the independence of the Judiciary on the part of Your Excellency and other civil
employees of your government and ask for the cease of these attacks.
Trusting that Your Excellency will pay special attention to these worrisome
matters, I take advantage of this opportunity to send my most respectful greetings.
Ernst Lueber
Temporary Secretary General
Cc: Mrs. Blancanieve Portocarrero
Permanent mission of the Bolivarian Republic of Venezuela before the United
Nations
Chemin François-Lehmann 1å
1218 Grand-Sacconex
Geneva, Switzerland
Fax: 022 717 0941
Mr. Lucas Rincon Romero
Minister of Interior and Justice
Ministry of Interior and Justice
Av. Urdaneta, Seat MIJ, Floor 1
Caracas, Venezuela
Fax: +58 212 5061557
Sr. Iván Rincon Urdaneta
President of the Supreme Tribunal of Justice
Esquina de Dos Pilitas final Av. Baralt, Foro Libertador
Edif. Tribunal Supremo de Justicia
Caracas, Venezuela
Fax: +58 212 563 8481 / 563 6506
Sra. Marisol Plaza Irigoya
Attorney General
Paseo Los Ilustres, Edif. Procuraduría General de la República
Caracas, Venezuela
Fax: +58 212 693-2998
Sr. Francisco Ameliach
President of the National Assembly
Monjas a San Francisco, Palacio Federal Legislativo
Caracas, Venezuela
Fax: +58 212 409 7029
Sr. Isaías Rodríguez Díaz
Public Prosecutor
Av. México. Manduca a Pelelojo. Edif. Fiscalía General de la República
Caracas, Venezuela
Fax: +58 212 577 2144
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