June 10, 2017

Keymer Ávila | @Keymer_Avila

Last week the German correspondent Jürgen Vogt interviewed me about the military trials of civilians, the justice system, the demonstrations and the current conflict in Venezuela, the extended version of which was already published in Neues Deutschland, a brief summary of it . it can also be found in Die Tageszeitung taz . Below is the original exchange I had with Vogt. It is worth noting that, unfortunately, the figures indicated today are higher:

How many people are in custody today?

It is important that these figures have a minimum context. Venezuela is currently going through crises of various kinds: political, institutional, legitimacy of its authorities, economic and social. This serves as a breeding ground for people to come out and express their discontent and disagreement. It should be noted that although many of the rallies that began in April have been peaceful, with massive attendance from both political sectors, there have also been demonstrations that have turned violent, and on occasions specific crimes have been committed, They have even attacked state security forces with firearms. The important thing is not to confuse one event with another. The peaceful demonstration is a right and when it stops being peaceful it loses that legitimate status.

Within this framework, according to NGOs specialized in this matter, some 2,660 people have been arrested, of whom 1,089 are still deprived of their liberty.

– How many people are prosecuted by military justice?

Up to now, some 334 people have been prosecuted by military justice. This is something that has skyrocketed in the last month, for a civilian to be prosecuted by military courts was something very exceptional.

– How is the situation of the detainees? Do they have lawyers? And if so, can lawyers meet with them?

-The situation of the detainees in general is not the best, and this transcends the current situation. What happens is that, as now the defendants are not only humble people but middle-class students, this situation of our penitentiary system becomes more visible. And now with this abrupt increase in detainees, conditions deteriorate even more. The places where they are being deposited are exceeded in their capacities, creating overcrowding and collapse of services. But in addition, the very functioning of the penal system also collapses: police cells, custodians, prosecutors and judges. So the processes become slower and more cumbersome.

Yes, they have lawyers, in these cases they are usually private defenders, since the public ones could give in to different types of pressure from the Executive. What I have been able to discuss with various defenders is that in the military jurisdiction everything is more difficult, access to the detainee, presentations, filing of documents, there is more opacity, discretion on the part of the authorities and obstacles to the exercise of defense .

– What is the reason or motive for which people are prosecuted by military justice? Why does the Government choose to prosecute civilians through military justice?

-The immediate reason in operational and instrumental terms is that apparently the prosecutors of the Public Ministry have not been available to make accusations in cases that do not correspond, nor to endorse arbitrary actions by the State security forces.

In political and ideological terms, this obeys a war rationale , where the idea of ​​”internal order” prevails, a concept of a military nature that is applied in the framework of war, where you have to protect the territory from enemies that attack the system political. In this framework, any action that questions or puts the system at risk will be considered a threat and action must be taken accordingly. Under this logic, protests can be understood as “threats” and the citizens who protest as “enemies”.

In any case, these cases must be very exceptional because the control of demonstrations according to our legislation is of a civil nature, not a military one, so the presence of military personnel should be the exception and not the rule. The control of the demonstrations corresponds in the first place to the state police . If these are exceeded in its capacity and means, it must be supported by the National Police, and only in cases in which the National Police does not have the capacity and means can the GN (the only military component with these powers) intervene, but under the instructions of the Ministry of Popular Power for Interior Relations, Justice and Peace, which is purely civil in nature. The problem lies when they want to impose the exception as the rule.

–In what measures or forms are the normal (civil) courts and military courts different?

-In the civil jurisdiction there are all the legal and constitutional guarantees that citizens enjoy in full exercise of their rights, the object of protection and the recipient of it are the citizens. The military jurisdiction is intended for the protection of the military institution and the security of the State, the addressees of the same are its officials who must exercise a role with respect to these institutions, they are not free subjects, any breach of these institutional duties immediately entails a responsibility, in many criminal cases. It is a jurisdiction where guarantees are reduced in pursuit of State security, for this reason officials enjoy fewer protections and have greater responsibility in their actions, because they have a duty of special care, of discipline and subordination that the common citizen does not have nor should have, at least not in a democracy. The logic of military jurisdiction is that of the exception, that of war.

Finally, from the formal point of view, civilians commit common crimes that are found in the Penal Code and other related laws, its core is the protection of people’s rights. In contrast, crimes of a military nature are contemplated in the Organic Code of Military Justice, whose core lies in armed and military threats against State security, are committed by soldiers in acts of service. It should be noted that this code predates our current Constitution and has not been adapted to it, so some of its provisions may be unconstitutional.

When civilians who have not committed military crimes are prosecuted by courts of this type, a violation of their human rights is committed, especially due process and the right to a natural judge, leaving a very dangerous precedent for the consolidation of a social State, democratic of law and justice. This type of process violates what is established in our Constitution, as well as what is ordered by both national and Inter-American Court judgments on this matter .

– Could it be that the Government no longer trusts civil justice?

– What happens is that in the face of the crisis of legitimacy and institutionality, it is possible that the Executive branch needs to exercise greater controls, they have them over the civil courts, but it seems that it has lost influence over the Public Ministry, a key actor in our criminal process that It is of an accusatory nature, for which reason this institution has the monopoly of criminal action and directs investigations in this matter.

–Who decides if a civilian has to be prosecuted before the civil justice or the military justice?

-At the moment it seems that these decisions are being taken directly by the military institution, the first step is possibly being taken by the Police and the GN that are in public order work. Although those practices must come from a high level instruction. However, defense attorneys tell me that everything is very dynamic and variable. It is still too early to establish a definitive clear pattern.

-In an article I have read that the decision to bring civilians before military judges was rejected by the Public Ministry. Is it so?

-Yes, as I told you a while ago, not only has the Public Prosecutor’s Office refused to charge people in cases that do not correspond, nor to endorse arbitrary actions by the security forces in these events, but it has also questioned this type of of processes carried out irregularly in military jurisdiction.

Thus, for example, a couple of weeks ago he asked a Zulia state court that 14 people who had been responsible for damages caused to a mayor’s office and a plaza be tried in the ordinary jurisdiction and not in the military.

– How is legal certainty? Is Venezuela still a state of law?

–No country complies one hundred percent with its legislation, that is a goal that must be tried to be achieved. I am not a friend of negative patriotisms. What I can tell you is that we are going through a delicate institutional crisis, with a deterioration in the legitimacy of the authorities, with an economic crisis, shortages, inflation and high levels of violence at different levels ; we have a homicide rate of 70 per hundred thousand inhabitants . The extremes of both political camps have us between an illegitimate and dangerous call for a National Constituent Assembly– which, far from institutionally stabilizing and ratifying the rule of law, rather deteriorates it – and general elections that are not in the Constitution either. In the middle is all the citizens submerged in uncertainty.

– What weight and influence does Attorney General Luisa Ortega Díaz have?

–The Attorney General since 2015 has taken correct institutional positions that gradually become more and more noticeable. It has rejected the militarization of the control of the demonstrations , the arbitrary police operations , and more recently it has expressed its institutional concern for the existing conflict between the public powers , for those who have died in the context of the conflict in recent weeks, as well as for the questioned call to the National Constituent Assembly. They have been necessary institutional positions, adjusted to the law, but above all courageous in a context in which it seems that no institutional actor wants to assume its role.

In symbolic and institutional terms, its weight and influence is fundamental. It is currently one of the few institutional references that exist. However, in operational terms, a Public Prosecutor’s Office without security bodies to support it, or courts that decide on its actions in accordance with the law, cannot go beyond the symbolic.

Is there an independent judiciary? Are there fractions, are there fissures?

–The independence of the judiciary is also an aspiration. It is a goal that must be pursued. The crisis of the Venezuelan justice system is not recent. In a work on judicial reform in Venezuela carried out in 1998 by UNDP, called “Justice and Governance”, the following conclusions had been reached: 1) Justice must be transformed; 2) The population does not have confidence in that justice; 3) The Judiciary is the institution with the least credibility in public opinion; 4) People do not denounce because they do not trust; 5) The “E” stratum of the population (the poorest) prefers to take justice into their own hands; 6) The great problem of Venezuelan justice is corruption.

What has happened during the last 20 years? That perception has not improved, I would dare to say that it has deteriorated considerably.

In a survey carried out by the State itself in 2009, people preferred the intervention of a policeman over that of a judge, who were the worst rated in the entire system. These results coincide with the 2014 survey of the Development Bank of Latin America (CAF) in which trust in justice in the region did not reach 20%, and in Caracas it barely reached 5%.

The latest events that the Supreme Court of Justice has carried out, such as the appointment of some of its members by the outgoing National Assembly to prevent the new one from doing so as appropriate; the profile of many of those magistrates who do not meet the requirements to hold office; the fact that those same magistrates have subsequently “suspended” deputies elected by the state of Amazonas; A little less than two months ago, through some controversial sentences, they tried to subrogate the powers of the National Assembly, which, in part, have been the trigger for the current conflict ; They show that the current Judicial Power, far from contributing to the reduction of conflicts, has become a factor that generates and enhances them.

– Can you describe the limits of legitimacy between civil protests, looting, violent actions, taking into account the specific situation of the country and the population?

–The discontent is legitimate and has its bases both concrete and immaterial. But we must be very clear that legitimacy is one thing and legality another.

Faced with the crisis of legitimacy and institutionality, it is possible that the Executive branch needs to exercise greater controls, they have it over the civil courts, but it seems that it has lost influence over the Public Ministry, a key actor in our criminal process, which is of an accusatory nature.

Peaceful demonstration is a rightwhich is part of the civil and political rights enshrined in our Constitution, which establishes in its article 68 that all “citizens have the right to demonstrate peacefully and without weapons, with no other requirements than those established by law.” The right to demonstrate, then, is not absolute: it is conditional on it being peaceful and without weapons. This is not only in our Constitution but in the various international treaties on human rights. Consequently, if both conditions are not met, it is not the right described above; If you stop complying with them, it ceases to be that right. For example, the obstruction of roads, devastation, looting, use of dangerous substances, damage to offices and means of transportation, roads, telecommunications, services and public works,

As I told you at the beginning of our conversation, many of the demonstrations have been massive and peaceful, but there have been others that have turned violent and even criminal, there is even a case of a deceased GN official. On the other hand, in some cases there is also a disproportionate and arbitrary use of force by officials of the State security forces.

So we have many types of violence : structural, institutional, social, criminal, intra-class, and possibly if this is not stopped in a timely manner we could begin to have violence of a political nature, we must avoid falling into that spiral, which, unfortunately, we seem to be falling into. very close. We have to defuse that bomb.

A general hypothesis could be found in the popular saying: “When the cat is not there, the mice have a party.” When the heads of state are not there to carry out their duties or carry out the exercise of government, the police, military and criminal groups party. One thing is the exercise of government and another the conservation of power. Here everyone is busy to stay in power or to snatch it away, meanwhile no one exercises government, or cares about the State, or about the concrete and daily needs of the people.

Publicado originalmente en Provea.