October 24, 2016

Keymer Ávila | @Keymer_Avila

Some sectors of the new National Assembly have recently proposed a Bill to Reform the Organic Law of the Police Service and the National Police Corps (PLERLOSP) , so far the arguments that have been raised publicly for it do not seem convincing, let’s see and Let’s critically analyze each of them briefly:

1. Grant the power to create tactical groups to the state and municipal police (article 35 and seventh transitory provision of the proposal): regarding the police and their weapons we have already advanced some ideas in a previous article. Tactical groups are those made up of troops trained in assault and combat tactics, equipped with weapons and special equipment of a military nature, who intervene in extreme and high-risk situations, such as kidnappings, hostage-taking, direct confrontations with criminals, dangerous arrests, etc. A common characteristic of this type of situation is that in these cases the preventive and investigative police are overwhelmed with weapons or occur in places that are difficult for them to access. These groups represent the maximum expression of the criteria of intensity and specificity of police intervention that are required in situations of maximum complexity ( Gabaldón, Ávila et al., 2014). For this reason, these functions are reserved for the police and specialized bodies such as the CICPC, the GNB and the SEBIN. Neither these groups nor their weapons should be democratized or used discretionarily . The distribution of weapons of war to all police forces could be a false remedy that would further aggravate the disease . This problem is not legislative or normative, it is political, managerial and administrative. It is not necessary to make a reform of the law on this aspect, since this would destroy the police model designed by CONAREPOL since 2006 based on a rational and effective distribution of resources and functions. In this case, these bodies must be required to provide their services diligently, efficiently and within the framework of the law.
2. The rectory of the Ministry of the Interior and the discussion about the intervention of the police:the Ministry with competence in citizen security, according to articles 27, 73 and 76 of the Organic Law of the Bolivarian National Police Service and Police Corps (LOSPCPNB), only guarantees minimum general standards of the police model at the national level (regarding the endowment , equipment, training and performance), in an attempt to raise the quality of service and the protection of the fundamental rights of people. There is no hierarchical or subordinate position, neither administrative nor financial, between the National Executive and the states and municipalities. Article 28 of the LOSPCPNB reaffirms all of its constitutional and legal powers in these matters to these entities. The rectory of the Ministry is regarding the standards and protection of the police model throughout the country, not about the direction, command and daily operation of the state and municipal police. The intervention of the police forces embodied in the LOSPCPNB is only carried out when the “massive and continuous participation of its officials in violation of human rights, in criminal networks or in activities that violate the constitutional order” is determined. If the need is to question these processes,the object of the reform should be the resolution that governs these procedures, not the LOSPCPNB .

However, all norms can be perfected, and it should be considered that in the initial debates of the LOSPCPNB it was suggested at some point that the governing body should be a collegiate body, thus the initiative of the General Police Council (CGP) was born. In this way, the rectory was not concentrated by a single institutional actor. The CGP in its original conception was not only an advisory body, its decisions should be binding. Regarding the intervention and suspension processes, which would form part of the necessary stewardship of the service at the national level, in the first discussions of the law it had also been suggested that for the first of them there should be a prior judicial order that would decide on the cases of fact that motivates the intervention, whose process should be accompanied, in addition, by by a prosecutor from the Public Ministry as guarantor of due process, and thus avoid arbitrary or discretionary interventions. So then, it is reiterated, that the discussion should focus on the forms, on the procedure, and not on the rectory, intervention or suspension. In this sense, the suppression of the power of the Minister to remove police directors without a clear action protocol, as stated in article 32 of the PLERLOSP, seems to be correct.

3. Registry of dismissed police officers (arts. 19.11, 58 and transitory provision nine of the PLERSLOP): the colloquially known “recycling of officers” is a problem that must be addressed within each police institution and be part of their internal procedure manuals for the income, career and promotions. But they also need to be effectively implemented. From the normative point of view, these norms are specific to Law Regulations or Resolutions related to Personnel Statutes, all of a sub-legal nature. In any case, these administrative and procedural aspects are not part of the LOSPCPNB, but of the Law of the Statute of the Police Function, which already establishes the record of dismissal of dismissed officialsin its article 103, in accordance with its articles 22 (National Public Registry of Police Officials) and 33 (personal history of police officers). These last articles constitute the legal basis of a special Ministerial Resolution in force that already regulates this matter. So then, the registry of dismissed officials is already regulated and has legal and regulatory bases. What is required is that they be executed . One task of the National Assembly, for example, would be to immediately demand compliance with the transitory provisions of these regulations, many of which may already be 5 years overdue.

In conclusion: no legislative reform is required on this matter, numeral 11 of article 19 of the PLERLOSP, which is repeated in the sole paragraph of article 58, is redundant and unnecessary, and in any case should fall on the aforementioned ministerial resolution Since these administrative, operational and managerial aspects of detail are more of a sublegal nature, they do not have the generality or abstraction of the norms that must conform a law.

4. Diplomatic custody, protection of personalities and protection of senior State officials (arts. 35, 38, 40 and 66 PLERLOSP): another aspect that has also been mentioned by some promoters of the reform of the LOSPCPNB is the employment of police officers on duty. of “escorts”. Articles 37 and 39 of the LOSPCPNB indicate the custody and protection service for personalities, which is part of the exclusive powers of the PNB. The regulation of this service, due to its characteristics, is of a sublegal nature, that is, for the regulation of the law, regulation of the PNB or specific resolutions, since they are part of the operation and detailed functioning of this body, so that a legislative reform is not necessary for this matter. While this specific area of ​​the police service is regulated, for example, the Anti-Corruption Law may be applied, which establishes various crimes, including embezzlement (article 54), which could punish possible misuse of the police service. for private or individual purposes.
5. The end of the “zones of peace”(art. 8 and eighth transitory provision PLERSLOP): the insertion of these articles, beyond the search for some media or propaganda impact, contributes very little, and from the substantive and legislative technical point of view it is unnecessary, and even affects the original structure of the law. The legislative exercise cannot be assumed to solve situations, but to establish institutions. If what is wanted is to prevent the provision of police services in certain areas of the national territory due to a discretionary or arbitrary order of a national or local authority, the current legislative block already establishes various regulations that prohibit this type of decision, so that the work on this matter is not normative, but institutional, of application of the current norms.

In short, no legislative reform is necessary to prohibit the cessation of police service in any part of the national territory, because it, legally and constitutionally, is continuous and permanent .

6. Portal of the most wanted (article 19 and twelfth transitory provision): displaying through the media or on the internet people formally requested by the criminal courts, is a matter that largely escapes the essence of the provision of the search service. police and enters the field of the affectation of fundamental rights enshrined in the Constitution and in international human rights treaties.

The arguments in favor of these practices revolve around emergency discourses and logics, very much in tune with warlike discourses, where the law vanishes. Usually, when it comes to regulating exceptionality, this becomes the rule, and when this happens, the rights and guarantees of all are diminished in a permanent and hardly reversible manner. They also use terms such as “dangerousness” that have been surpassed by current criminology, especially after the Second World War, due to their costs in human lives and legitimization of serious human rights violations by Western penal systems.

In any event, this would be the subject of special legislation, of dubious constitutionality, which must be separated, totally and absolutely, from both the LOSPCPNB and the COPP. Not only for constitutional, substantive, adjective and legislative technical reasons, but also, to preserve the indemnity of these two fundamental laws.

In conclusion: a reform of the LOSPCPNB is not required to regulate the aforementioned practice .

As we have affirmed on repeated occasions, insecurity and problems with our police are not resolved with newsletters or legislative reforms, they are resolved with political and institutional will. The LOSPCPNB is a good law that was the product of a long process of consultations and studies carried out by CONAREPOL. This law is the basis of the Venezuelan police model , which is threatened by practices such as the OLP , which come from the National Executive, and now seems to also receive attacks from the Legislature.

The National Assembly in these matters can do much more than reform laws that do not warrant it. The parliamentary exercise is much more than legislating. It must exercise its controlling and supervisory powers .

To see this analysis in detail, you can download the full report we did with the people of Paz Activa

An order of this nature violates the essence of the police service that is reflected in articles 5, 47 and 63 (preventive nature, reason for which the service must be provided continuously and permanently, that is, uninterruptedly).); 3 and 7 (the police service is exercised exclusively by the State, it cannot be delegated to individuals); 4 (service purposes); 8 (principle of speed: timely, necessary and immediate response); 13 (principle of universality and equality: provision of the service to the entire population without any distinction or discrimination); 14 (principle of impartiality); 51 (territoriality criterion: the police service is provided throughout the national territory); 65.10 (refrain from executing orders that involve the practice of illegal actions or omissions); 77 (periodicity of the rendering of accounts); all in accordance with article 34 (common powers to all police forces) of the LOSPCPNB. That they would find their constitutional basis in articles 25 (nullity of state acts that violate rights); 51 (right to obtain a timely and adequate response), 55 (guarantee of citizen security and protection of rights); 3 (state purposes); 7 (constitutional supremacy); 19 (guarantee of human rights); 137 (principle of legality that governs the actions of the organs of the Public Power); 139 and 285.5 (liability derived from the exercise of Public Power); 141 (principles of public administration); 145 (duty of impartiality of public officials); 164 (municipal police officers); 178 (state police); 156.6 (national police); 247 (Citizen Power mission); 281.2 (duty of the Ombudsman to ensure the proper functioning of public services); 332 (function of citizen security forces). 3 (state purposes); 7 (constitutional supremacy); 19 (guarantee of human rights); 137 (principle of legality that governs the actions of the organs of the Public Power); 139 and 285.5 (liability derived from the exercise of Public Power); 141 (principles of public administration); 145 (duty of impartiality of public officials); 164 (municipal police officers); 178 (state police); 156.6 (national police); 247 (Citizen Power mission); 281.2 (duty of the Ombudsman to ensure the proper functioning of public services); 332 (function of citizen security forces). 3 (state purposes); 7 (constitutional supremacy); 19 (guarantee of human rights); 137 (principle of legality that governs the actions of the organs of the Public Power); 139 and 285.5 (liability derived from the exercise of Public Power); 141 (principles of public administration); 145 (duty of impartiality of public officials); 164 (municipal police officers); 178 (state police); 156.6 (national police); 247 (Citizen Power mission); 281.2 (duty of the Ombudsman to ensure the proper functioning of public services); 332 (function of citizen security forces). 5 (liability derived from the exercise of Public Power); 141 (principles of public administration); 145 (duty of impartiality of public officials); 164 (municipal police officers); 178 (state police); 156.6 (national police); 247 (Citizen Power mission); 281.2 (duty of the Ombudsman to ensure the proper functioning of public services); 332 (function of citizen security forces). 5 (liability derived from the exercise of Public Power); 141 (principles of public administration); 145 (duty of impartiality of public officials); 164 (municipal police officers); 178 (state police); 156.6 (national police); 247 (Citizen Power mission); 281.2 (duty of the Ombudsman to ensure the proper functioning of public services); 332 (function of citizen security forces).

Publicado originalmente en Provea.