The controversy behind Venezuela's sweeping judicial reforms

This is the seventh set of reforms to Venezuela's penal code since Chavez took office. But changes, like allowing trials to proceed behind closed doors, could lead to an abuse of power.

• Insight Crime researches, analyzes, and investigates organized crime in the Americas. Find all of Elyssa Pachico’s work here.

Venezuela's recent approval of a set of sweeping judicial reforms intends to speed up the processing of court cases and ease the burden on the country's overwhelmed prison system, though a closer examination of the measures reveals that they may do more harm than good.

On June 12, Venezuela’s attorney general announced the approval of several far-reaching judicial reforms, marking the culmination in a series of pledges issued by the Chavez administration to stem the country’s rising violence rates. Aside from rolling out a new security plan, the government had promised to tackle inefficiencies in its judicial system and the reforms to Venezuela’s Organic Penal Procedures Code (COPP) are designed to do just that.

This is the seventh set of reforms to the code since President Hugo Chavez took office 13 years ago. The minister of prison affairs praised the recent changes, asserting that they would help eliminate the “pebbles” that make the judicial system slow and inefficient. As the Council on Hemispheric Affairs observed, of the nearly 2,000 criminal complaints that an average prosecutor in Venezuela receives, only 20 go to court and only two end in convictions.

Despite the intentions for expedited, efficient proceedings, the reforms have been lambasted by many members of Venezuela's opposition – criticism the government declared to be politically motivated – and drawn plenty of scorn from Venezuelan legal scholars. “One of the unspoken aims of these reforms is the total political control which this administration wants to wield over the justice system,” criminal lawyer Alberto Arteaga of the Central University of Caracas told El Nacional.

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“These reforms aren’t serious and are pretty improvised,” Francisco Abreu, a judicial expert and professor at the University of the Andes, told InSight Crime. “The government is making some rushed decisions partly to show that they’re taking action against insecurity. But at the end of the day, these penal code reforms are totally regressive.”

Of the measures passed, three are particularly controversial. These include:

1- Declaring that there will be “increased citizen participation” in selecting and appointing judges.

While the new code is short on specifics on how this process would work, this point is a step further away from an impartial, nonpartisan election of judges. Such a reform opens the door for judges to be appointed based on political favoritism, or their overall willingness to gear their rulings towards the governing party. Groups like the Organization of American States (OAS) and Human Rights Watch have already detailed how independent judges have been increasingly replaced by Chavez loyalists, to the point that Venezuela’s judiciary can no longer be considered truly independent from the government.

2- Creating tribunal courts to handle minor infraction cases, involving crimes that would result in a maximum 8-year prison sentence.

This solution is meant to address the huge backlog of cases in Venezuela’s criminal courts, and allow cases to be processed more quickly. However, creating a new network of local tribunals means finding the judges and public defenders qualified enough to staff them. Considering that in some states the average number of cases handled per public defender has reached as high as 520, according to the US State Department, it is unclear where the government will find the staff needed to run the new municipal tribunals.

3- Allowing trials to be conducted without the presence of the accused, or behind "closed doors"

This is the murkiest of the changes and has sparked some of the most heated criticism from the opposition. The measure is intended to confront the significant problem of trial proceedings being delayed when the accused (or public defender) fail to show up to court. The president of Venezuela’s Supreme Court specifically highlighted the failure of suspects to show up for trial as one of the main reasons why trials move so slowly. However, the opposition argue that the measure goes against Venezuela’s Constitution, which states that no trial can be carried out without the presence of the defendant, critiques that the president of Venezuela’s Supreme Court has dismissed as baseless.

It is worth noting that there are different reasons why a defendant could refuse to appear in court. In some cases involving organized crime, for example, prison bosses – or “pranes” – have been known to issue orders over whether a suspect should appear in court or not, one indication of how little authority the courts wield. In other cases, prisoners are forced to pay prison guards to take them to their trial. Those who cannot pay miss their court dates, and may see their case drag on for months.

Defendants have also been known to refuse to appear in court because they say they won’t receive a fair trial, in protest against what they describe as the system’s pro-government political bias. This happened most prominently in the case of Judge Maria Lourdes Afiani, a fierce critic of the Chavez government who was jailed in 2009.

In another cause for concern, Article 316 of the reforms states that judges will have the right to conduct trials that are closed to the public, in "whatever circumstances" that the judge considers necessary for the "normal development" of the trial. This is a new addition to the four previous exceptions to a public trial in Venezuela. Prior to the reform, trials could only be conducted privately if they violated the privacy of an actor involved, if they could endanger national security, reveal commercial secrets, or if a minor was testifying. Needless to say, this addendum could open up the trial system to numerous abuses.

It is clear that Venezuela is in urgent need of judicial reform. However, these new measures will only further compromise judicial independence, and could open the door to the abuse of power by the courts. While the reforms have been upheld as evidence that the government is taking action against Venezuela's judicial inefficiencies, this is arguably not the kind of action that best serves Venezuela's needs.

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–  Insight Crime researches, analyzes, and investigates organized crime in the Americas. Find all of Elyssa Pachico’s work here.