Farewell to the Presumption of Innocence in Venezuela

[Carlos Lusverti is the Latin America Legal advisor with the International Commission of Jurists]

The principle of presumption of innocence in criminal cases is core to the rule of law. It is also a universally recognized general principle of law, incorporated into general international human rights treaties, the Venezuelan Constitution and domestic law as part of the Criminal Proceedings Code. However, Venezuelan authorities at high-levels, including the Chief Prosecutor, have repeatedly disregarded in recent years, it violating defendants´ rights.

Political Actors Interfere with Criminal Proceedings

Under domestic law, criminal prosecution is conducted by prosecutors of the Public Prosecutor’s Office. The Venezuelan Constitution (Article 285) states that Public Prosecutor’s Office must “order and direct the investigation of criminal offences within the national territory”. Prosecutions may be initiated ex officio, without the approval of the Chief Prosecutor and should be independent and non-politically motivated. Prosecutors must investigate with “the required diligence,” establishing the facts of the crime, identifying possible perpetrators, and collecting all evidence. This  includes both evidence which supports an indictment of an individual and that which suggests innocence, according with Venezuelan Criminal Procedure Code. 

Similarly, under international standards,

“prosecutors shall, in accordance with the law, ….respect and protect human dignity and uphold human rights, thus contributing to ensuring due process and the smooth functioning of the criminal justice system.”

Despite these legal obligations, the Independent International fact-finding mission on Venezuela (FFM) established by the United Nations Human Rights Council has documented the involvement of external political actors in criminal prosecutions of real or perceived political opponents. These high-level public officials, which include high ranking executive authorities, and legislators, have released statements about the cases even before indictments are issued. The statements have been made in the media, including on television shows, social media (Twitter), press conferences or before the parliament. They have presented “theories” about how individuals or civil society organizations have allegedly taken part in criminal acts, especially involving terrorism or treason offences.  As the FFM noted, “[t]he statements routinely express[ed] conclusions about the guilt or innocence, the character or the reputation of the subjects of the investigation, potentially prejudicing their rights”.

Often times, those authorities have publicly divulged information that should be restricted to prosecutors and defence lawyers. Some of this information involved “confessions” made or information given in coercive circumstances, including without the presence of a lawyer or during incommunicado detention. Moreover, there are reasonable grounds to believe that those detentions were arbitrary and “confessions” were extracted under torture or other proscribed ill-treatment. For example, the FFM documented that in the case of the journalist Roland Carreño, the Minister of Communications tweeted that he “was in custody, had been detained in flagrante delicto and had confessed”(…) “actions against the peace of the nation”. At the time,  none of his lawyers or family new about his whereabouts

Equally problematic has been the conduct of the Chief Prosecutor, Tarek William Saab, who is the chief of the Prosecution Office charged with acting with independence, impartiality and objectivity.  The Chief Prosecutor has labelled persons under investigation as “criminals” when investigations were just beginning, in violation of specific legal provisions in the criminal proceedings code. He has done so during press conferences, speeches before the Parliament and through his Twitter account. As documented by the local NGO Acceso a la Justicia, the Chief Prosecutor publicly and frequently referred to defendants with descriptions such as “aberrant”, “delinquents” or “thieves”, especially in cases of persons he perceived to be political opponents. Thus, Venezuelan civil society organizations such CECODAP, which defends children’s rights, has denounced the Chief Prosecutor for disclosing the names, surnames, photographs, and videos of teenagers involved in alleged violence and bullying.

Undue Pressure and Influence by Authorities 

The rule of law has collapsed in Venezuela.  Prosecutors and judges may interpret declarations of high-ranking political officials as effectively constituting “instructions” to proceed with prosecutions and/or convictions persons perceived as political opponents or otherwise disfavoured. Prosecutors or judges may consider that they will subject to reprisals they do not comply with such orders. Such instructions clearly contravene the criminal procedures law (article 263) and international standards of prosecutorial and judicial independence.

Under Venezuelan domestic law, the Chief Prosecutor’s Office and the prosecutors must act with independence and impartiality. However, the Chief Prosecutor himself breaches these duties when he publicly stigmatizes defendants, as his office is responsible for the prosecution of crimes, and he is the highest authority in the Prosecution Office. In this context, individual prosecutors are also likely to interpret his statements as instructions to seek convictions of the accused no matter what. The Inter-American Court of Human Rights, has found that speeches by high-ranking public officials may be interpreted by public officials as directions and concluded that “the content of the statements made by high-ranking public officials placed the people (…) into a position of greater relative vulnerability towards the State”.

These situations are a constant threat to judicial and prosecutorial impartiality in criminal cases, as well as to be investigated and prosecuted with due guarantees. The UN Human Rights Committee has stated that “[i]t is a duty for all public authorities to refrain from prejudging the outcome of a trial, e.g. by abstaining from making public statements affirming the guilt of the accused”.

Regarding Venezuela, the Committee underscored this duty and concluded

“it is not necessary for the authorities to be directly involved in the proceedings in question for their actions to give rise to a rights violation, nor is it necessary for their comments to be presented as elements in the indictment of the defendant”. 

Thus, Venezuelan authorities must refrain from making statements that prejudge guilt and that put judicial and prosecutorial independence under a siege. Also, judges and prosecutors must act independently and must enjoy have real guarantees, not only in law but also in practice, to enable them to act truly independently and impartially in the proceedings. This includes the need for officials who intervene in criminal proceedings to be held accountable for their misconduct.