In 2009, Judge María Lourdes Afiuni released a political prisoner on bail. Hours after the judgment was delivered, the late President Hugo Chávez appeared on national television, labelling Afiuni a ‘bandit’, calling for her imprisonment and warning that her case would be an example to other judges. Judge Afiuni was arrested and is now standing criminal trial. The is the consequence of correctly applying the Venezuelan penal code and a decision of the UN Working Group on Arbitrary Detention to the defendant’s case, finding his two-year pre-trial detention to be unlawful. The shocking treatment of Afiuni is as emblematic of the crisis in Venezuela’s justice system as it is tragic.
Judge Afiuni was charged with ‘spiritual corruption’ and held in the same maximum security facility as prisoners whom she had sentenced, where she was severely tortured and raped. Her health deteriorated to the point where she needed emergency surgery, after which she was placed under house arrest. Her trial eventually began in 2012, however it was annulled after the prosecution, which had already admitted that it had no proof against her, failed to turn up at several evidentiary hearings. Earlier this year, over five years since her arrest and despite widespread national and international condemnation, her retrial started. Last month in Geneva, Attorney-General Luiza Ortega Díaz brazenly told the UN Human Rights Committee that it had received no torture complaint and that she was making things up. In the words of UN Special Rapporteur on Torture, Juan Méndez, himself a torture survivor, ‘it is growing increasingly difficult to understand what Judge Afiuni is living through’.
The case has also exposed the disastrous state of the Venezuelan justice system and its inability to function independently from political influence. When the charismatic Hugo Chávez came to power in the late 1990s amidst the so-called ‘Pink Tide’ of leftist governments that swept the continent, his ambitious social and economic reforms were broadly welcomed. However, whilst others operated more democratically, Chávez became increasingly autocratic, systematically dismantling independent institutions and persecuting opponents in order to consolidate power and push through the policies of his revolución bonita, or pretty revolution.
This has left the Venezuelan judiciary in an ugly state. As part of a transitional regime that has been in place for over 15 years, approximately 66% of judges are ‘provisional’, meaning they can be freely appointed or removed by the Government. The competitive judicial service exam required by the Constitution has been suspended so that judges are appointed in an opaque process by a politically-appointed body and the Judicial Code of Ethics has been in permanent abeyance. The majority of the members of the Supreme Court are former politicians or government officials and a recent study found that 92% of challenges against government decisions were dismissed. More seriously, before the Afiuni case judges were only worried about losing their jobs if they returned unfavourable decisions. Now, they fear the same fate and a chilling effect has swept through the judiciary – nobody wants to be the next Afiuni.
Since Chávez’s death in 2013, resentment at the subsequent disputed presidential election as well as rampant inflation, corruption and serious shortages of basic goods and services has led to large-scale protests throughout the country. Disturbing levels of impunity have also inflamed public anger. Venezuela has one of the highest murder rates in the world and its struggling justice system is unable to cope, with approximately 90% of homicides going unpunished and, according to the Attorney-General Office’s own statistics, 99% of human rights complaints did not make it to trial phase. Nevertheless, in the run-up to municipal elections in December, a shaky Government is increasingly using its compliant judiciary as a political weapon to convict and imprison any opposition, perceived or otherwise – from the elected Mayor of Caracas to supermarket owners, lawyers and students. It seems that no-one is safe. Even the judge who had presided over the multiple due process violations in the first Afiuni trial, a self-proclaimed servant of the Revolution, was arrested earlier this year for passing a sentence that was considered too lenient.
Venezuela’s road to recovery and stability will be complex and, amongst other things, needs meaningful political reconciliation. However, in order to restore public faith in the fair administration of justice and the rule of law, it will also need to rebuild the decimated independence of its judiciary. A significant and symbolic first step would be dropping the charges against Judge Afiuni and releasing her from her Kafkaesque nightmare.