‘Nobody wants to be the next Afiuni’

“The Afiuni case has created an atmosphere of fear amongst judges, known as the ‘Afiuni effect’. Prior to the case, the IBAHRI found that Venezuelan judges were fearful of disciplinary proceedings or dismissal if they returned decisions unpopular with the executive.

As a result of the Afiuni case, in particular the multiple violations of the Covenant that have occurred throughout the process and the above-mentioned statement that her case should be considered exemplary, Venezuelan judges are now fearful of criminal proceedings and/or losing their liberty. This has caused significant damage to judicial independence in the country and as reported by the IBAHRI following its 2011 visit to Caracas, ‘Nobody wants to be the next Afiuni’.”

Meanwhile, more than five years have passed since Maria Afiuni was arrested for lifting the provisional detention of a suspect who was considered by the then President Chavez as an enemy of the state.

The criminal case against Afiuni has still not been dealt with substantively because of numerous postponements, all kinds of procedural circumstances and the restarting of the process in July 2014. Afiuni is currently at home, she must adhere to restrictive suspension conditions, she is unable to work and therefore has no form of income and is subsequently completely dependent from family and friends.

It is quite cynical that Alí Fabricio Paredes, the judge who presided at the first stage of the criminal case against Afiuni, was arrested on the 10th of February 2015 by the Security Service. This happened just days after he had sentenced a suspect in a high-profile criminal case to 14 years imprisonment because of the trafficking and money laundering, a punishment that was too low in the eyes of the authorities.

Rightly so Co-Chair Hans Corell of the IBAHRI said the following about this matter:
‘To arrest any judge for passing a sentence considered too lenient by the Government, as in Judge Paredes’ case, fundamentally undermines basic notions of the rule of law, democracy and the separation of powers. We strongly condemn Judge Paredes’ arrest, and remind Venezuela’s authorities that he is entitled to due process and that any sentence is subject to appeal and judicial control.’

International pressure on Venezuela remains high, the UN CAT Committee made the following urgent recommendations in its Concluding Observations at the end of November 2014 (thanks to our Spanish translation pool!):

16. The Committee is gravely concerned about the lack of independence of the Judiciary in relation to the Executive power, which is demonstrated by the case of Judge María Lourdes Afiuni. Afiuni was imprisoned after the executive power publicly claimed that Afiuni should be imprisoned for 30 years after she ordered the conditional release of a prisoner whose legal detention limit had been exceeded and was considered arbitrary by the Working Group on Arbitrary Detention. The Committee notes that Afiuni was subject to preventive detention for more than a year under circumstances that threatened her health and safety. The Committee furthermore expresses its deep concern in relation to the reports that she was sexually harassed by a government official during her detention. The Committee regrets that, although this is a crime that should be prosecuted by the government, to this date an official investigation re-mains absent. Furthermore, the Committee observes with concern that the stability of judges in their function is not guaranteed, since 62% of the judges are appointed temporarily and are freely appointed and dismissed from their jobs. The Committee is concerned that the prosecu-tion of Judge Afiuni and also the dismissing of temporarily appointed judges, presumably because of the decisions they made that were detrimental to the Government, have had a neg-ative impact on the independence of other judges, and undermine the guarantees of a consti-tutional state that are necessary for effective protection against torture (art. 2, 12 and 13).

The Member State must:

1. Compulsory and at a timely, fully and impartial manner, investigate the allegations of tor-ture and mistreatment by sexual assault allegedly committed against Judge Afiuni during her detention at the Instituto Nacional de Orientación Femenina;
2. Guarantee Judge Afiuni a legitimate and independent case as well as adequate compensa-tion for the physical and psychological damage suffered during her detention;
3. Respect the principle of innocence, and refrain from public statements or actions which may result in a negative impact on the independence of the judiciary;
4. Take urgent steps to ensure the full independence and irremovability of judges in accord-ance with the international standards on this topic. Specifically, the State should organize with the greatest urgency public selection procedures for access to the judiciary, run by inde-pendent authorities, and to abolish the system of temporary appointments of judges, and to guarantee the stability and independence of the temporarily appointed judges.

It would be great if we could write more positive news about the situation in Venezuela in the next newsletter.