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Imprisonment of Judge Reflects Poorly on Venezuelan Justice

CARACAS, Aug 11 2010 (IPS) - “One day more, one day less,” says María Lourdes Afiuni when she says hello or goodbye to her thousands of followers on Twitter. The Venezuelan judge has spent the last eight months in prison, because she decided that a defendant should be released on bail pending trial.

María Lourdes Afiuni, handcuffed, under guard and on trial. Credit: Courtesy of Andrés Bello Catholic University Human Rights Centre

María Lourdes Afiuni, handcuffed, under guard and on trial. Credit: Courtesy of Andrés Bello Catholic University Human Rights Centre

United Nations agencies, judicial bodies and regional and international human rights organisations, as well as the European Parliament and other legislatures, have been calling for her release since she was arrested in her own court on Dec. 10 and later taken to a prison where 14 of the inmates were sent down by her.

The U.N. Human Rights Council (UNHRC), for example, deemed her arrest “arbitrary” in its June sessions in Geneva. It also expressed regret that Afiuni is in prison for implementing a resolution of the UNHRC Working Group on Arbitrary Detention.

Activist Ligia Bolívar told IPS that this is an emblematic case because Venezuelan President Hugo Chávez “sent a very clear message to the judicial branch about his power to condemn a person on a national radio and television broadcast, and woe betide anyone who should grant freedom pending trial to a judge imprisoned for doing exactly that.”

Banker Eligio Cedeño had spent two years and 10 months in preventive custody on corruption charges when Afiuni granted him conditional release, on the grounds that the criminal code sets a 24-month limit for pretrial detention. She also based her decision on U.N. rules and an opinion on the case by the UNHRC Working Group on Arbitrary Detention.

Afiuni and her 'Wilsons'

Afiuni, 46, has a reputation among her colleagues and lawyers for diligence, and for having no backlog of cases at the various courts where she has worked as a tenured judge since 2006. She suffers from several health problems as a result of her isolation and "permanent stress," according to her lawyers.

Her main link with the outside world is via Twitter. She says that when she feels up to it, and if her mobile phone has not been confiscated, she gets in touch with her followers, who have increased in number from 7,000 to close to 26,500 over the past three months.

She calls them "my Wilsons," after the volleyball actor Tom Hanks talks to in the film "Cast Away".

In her profile at @mariafiuni she describes herself as a "kidnapped judge," and in the few interviews she has given, she says "I'll get out when Chávez says so."

On the outside chance that Afiuni was elected in the Sept. 26 legislative elections -- she was nominated by a small group with no connections to the governing party or the opposition alliance -- she would be released immediately.

On Aug. 1, human rights activists and her family led a motorcade through Caracas in support of her candidacy.

Afiuni was arrested moments after Cedeño left her courtroom, and the next day President Chávez said, during his regular national radio and television broadcast, that she was “a crook,” adding that “a judge who frees a crook is much, much worse than the crook himself.” He asked that she be punished with the maximum possible sentence for corruption: 30 years in prison.

The judge released Cedeño on two conditions: he was banned from leaving the country and had to turn over his passport; and he had to appear before the authorities at 15-day intervals. But a few days later the defendant fled to the United States.

Cedeño is accused of fraud and embezzlement of 27 million dollars, that were granted by the administrative commission controlling foreign exchange for the purpose of importing computers, which are alleged not to have entered the country. Until the scandal broke out, he was regarded as close to the leftist government.

Since Afiuni’s arrest, Attorney General Luisa Ortega has repeatedly stated that the judge herself was guilty of corruption, abuse of authority and aiding Cedeño’s escape. She added that under Venezuelan law, corruption is considered treason against the state.

The U.N. Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, described Afiuni’s detention as “unacceptable” and “intimidatory.”

Bolívar, head of the Human Rights Centre at the Andrés Bello Catholic University, the local organisation that is most closely following the case, says that Venezuela has taken one step further in the direction of what some experts and activists call “rebellion” against international justice bodies.

Even before Chávez became president in 1999, “Venezuela ignored recommendations and rulings by international and regional human rights bodies,” Bolívar said.

Later, “the national justice system overthrew international sentences, such as when the Supreme Court determined that a theoretically unappealable decision of the Inter-American Court of Human Rights, ordering the reinstatement of several judges, was unenforceable,” Bolívar said.

“Now another step has been taken: whoever enforces a legal decision by international bodies goes to jail,” she said. In her view, that is why there has been “an outpouring of international pronouncements in favour of Afiuni since Dec. 16.”

Supreme Court president María Estela Morales has said “our jurisdiction will not be handed over to any foreign power,” and called the Inter-American Commission on Human Rights “one of those international bodies that disguises itself as a protector of basic rights, to serve its own interests.”

She has also frequently said that “the separation of powers weakens the state,” and has proposed amendments to some parts of the 1999 constitution that are “in contradiction with the Chávez regime.”

Morales and Ombudswoman Gabriela Ramírez have rejected accusations from human rights organisations like Amnesty International and Human Rights Watch that Afiuni is in danger and is being discriminated against at the women’s prison in Los Teques, on the outskirts of Caracas.

Investigation of the case was completed in late May with the decision to put Afiuni on trial. The court accepted the prosecution’s argument that there is no evidence of enrichment or a promise (by Cedeño) to pay the defendant, but claims that Afiuni did receive other illegal benefits.

Motions for dismissal of the case, release on bail, house arrest or other forms of restriction without confinement to keep her safe from attack by other prisoners, have all been denied by the trial judge, Alí Paredes, on the grounds that “it’s not the season for precautionary measures,” according to the complaint lodged by Theresly Malavé, one of Afiuni’s lawyers.

On Aug. 6, Afiuni’s defence lawyers asked the Supreme Court to recuse judge Paredes, who had announced a trial date for Aug. 10 and refused to form a three-person tribunal, with two citizens chosen by lot, to try the case.

They alleged Paredes had shown “manifest partiality,” and supported their claim with documents apparently taken from the governing United Socialist Party of Venezuela (PSUV) web site, in which the judge stated that “I would give my life for the revolution and I would never betray my commander Chávez.”

Alberto Arteaga, a criminal lawyer and one of the architects of the 1998 criminal code, said the case “is a devastating blow to a system of justice based on guaranteeing civil liberties, the presumption of innocence and the avoidance of undue delay.”

According to Arteaga, several of Afiuni’s rights have been trampled on, beginning with her arrest, which would only have been justified if she had been caught redhanded accepting a bribe.

“She was handcuffed and detained in her own courtroom, for doing something that was within her competence as a judge, and now she is facing the absurd charge of corruption without any financial benefit,” he told IPS.

In Venezuela there is no “non-material” corruption, he said. The code stipulates fines for acts of corruption “according to the benefit obtained,” so there must be economic gain, he explained.

Afiuni is being held in isolation in a cell measuring six square metres in a special part of the prison, and cannot take part in prison activities, for her own protection, as more than once an inmate has entered her cell with a homemade weapon.

Her case also reflects the grave situation of criminal justice in Venezuela, according to the non-governmental Justice and Peace Support Network, which published a document Jul. 30 reporting that there are 807 criminal judges in the country, of whom 482 are not tenured, which makes them insecure and hinders them when it comes in imparting justice.

Each criminal judge handles an annual average of 316 cases, nearly one a day, in a country with one of the lowest proportions of criminal judges in Latin America, at 2.84 per 100,000 population.

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