The Dirty Forty-Five

In Venezuela, less than fifty military officers are entrusted the mission of administering justice to their military counterparts. But as the Government of Nicolás Maduro sends more political dissidents and insubordinate civilians to be tried in that jurisdiction the weakest flanks of a lodge of judges arbitrarily appointed by the Ministry of Defense, who have unclear merits and a clear willingness to follow orders, are more evident.

21 September 2017
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"Let him go," "Leave him alone," the protesters shouted at the Bolivarian National Police (PNB) agents, who arrested Sergio Contreras, leader of the Free Will party (Voluntad Popular - VP) and professor at Universidad Católica Andrés Bello. On that Wednesday, May 10, 2017, Contreras was using a megaphone to broadcast slogans at an opposition march on Avenida Vollmer in San Bernardino, La Candelaria parish, in north-central Caracas. He was trying to mediate between the marchers and a police squad that prevented the crowd from passing, according to witnesses of the event and Contreras' lawyer, Lilia Camejo. The photos of the police taking him by force in a motorcycle freely circulated in the social media.

He was taken to the headquarters of the National Police and then transferred that same day to the Bolivarian National Intelligence Service (Sebin, political police) and, in the early hours of the next day, he arrived at the headquarters of the Directorate General of Military Counterintelligence (DGCIM), in the northeast of Caracas.

The roulette of transfers ended on Friday, May 12, at night, at the First Military Court of Proceedings of Caracas before which Contreras was presented. That court is led by Captain Claudia Carolina Pérez de Mogollón, a lawyer with a diploma from Centro de Estudios del Ejército y Fuerza Aérea Mexicana (Mexican Army and Air Force Studies Center) with a major in Human Rights and Armed Forces. Her curriculum certifies studies on Human Rights in Fundación "Juan Vives Suria," attached to the Ombudsman's Office.

Like Contreras, hundreds of civilians have been presented before military courts since the opposition protests began on April 1, 2017 ?a real intifada to demand the Supreme Court of Justice (TSJ) to respect the autonomy of the National Assembly and call for general elections to overcome the political crisis, among other demands.

According to leaks of the meeting that Nicolás Maduro had last week with the military high command, ?which the electronic press has echoed and opposition leader Henrique Capriles Radonski also broadcasted?the Venezuelan president informed the officers of his intention to transfer to the martial justice the street demonstrators under arrest, whose cases the Public Prosecutor’s Office will not accept to process. That was his way to overcome the obstacle now imposed by an unexpectedly indocile Prosecutor’s Office led by Luisa Ortega Díaz against his efforts to stifle the civil rebellion that began in April 2017. Whether a deliberate strategy or not, the ongoing claims from human rights organizations allow verifying that in the fight against the revolt that began 50 days ago, the Government is opting ?without further regard to local regulations and international standards? to try civilians before military courts.

Six out of ten accused in military courts were arrested in the State of Carabobo

According to data from the Foro Penal Venezolano (Venezuelan Criminal Forum) - a non-governmental organization that assists political detainees -, as of May 17, 295 civilians had been presented before military courts, 161 of which were deprived of their liberty in violation of article 49 of the Constitution in force, which reads?"Everyone has the right to be judged by their natural judges in ordinary or special jurisdictions with the guarantees provided for in this Constitution and the law." In addition, there are 14 detainees in Nueva Esparta who were sent to the Sixteenth Military Court of proceedings based in Barcelona.

Six out of ten people tried in military courts were arrested in the state of Carabobo, in the central region of the country, which has been the scenario of major disturbances. It may be purely coincidental, but the judge with the longest time in position in the national military jurisdiction, Major Luz Mariela Santafé Acevedo, appointed in November 2011 and ratified in late 2016, works in the court of proceedings of Valencia, the capital of the state. According to Rocío San Miguel, director of the organization Citizen Control for Security, Defense and the Armed Forces, such an extended term can result in perversions of court practices.

Justice or Duly Obedience

Just as there is an ordinary judicial circuit, the military has its own circuit of justice that is made up of Military Courts of First Instance, led by judges who discharge the duties of Proceedings, Trial and Enforcement of Judgement, and the Court Martial, acting as Court of Appeals and Constitutional Court with national jurisdiction, led by five professional judges.

The courtroom of the court martial is made up of a presiding judge, Major General Henry José Timaure Tapia; a chancellor, José de la Cruz Vivas Sáez; a court reporter, Colonel Jesús E. González Monserrat; a first officer, Carmen Lucía Salazar Romero; and a second officer, Edmundo Ramón Mujica Sánchez.

Everything suggests that the number of cases and regions involved will increase

There are 19 courts of proceedings, five trial courts and seven enforcement courts in the entire military jurisdiction. Its judges, 45 magistrates, have jurisdiction over the future of military accused of committing a crime, but with the new doctrine that the Government of Nicolás Maduro tries to impose, they also have jurisdiction on civilians accused of military crimes. Obviously, not all of them are currently deliberating on the fate of the 161 civilians referred to military courts during street protests. According to reports from social media, this has happened in Caracas and in states like Carabobo, Barinas, Táchira and Nueva Esparta. However, everything suggests that the number of cases and regions involved will increase.

These judges have been handpicked by the Ministry of Defense. Although the Internal Regulation of the Military Criminal Judicial Circuit provides that the members of the Court Martial will be appointed by the Supreme Court, it is done through a list sent by the Ministry and not through a contest, as established by the Constitution, Ali Daniels, director of the Access to Justice organization, explains.

Moreover, according to Official Gazette 40.462 of July 28, 2014, it was the Ministry of Defense who appointed without objections Military Public Prosecutor Siria Venero, Military Public Defender Oscar Alfredo Gil Arias, and the Presiding Judge of the Court Martial. All remain in office and have been holding their position for nearly three years, contrary to the convention that provides for the constant rotation of these positions, which the Bolivarian Revolution has virtually turn into a mantra.

"The Supreme Court of Justice endorsed this usurpation of its own duties, and with confidently published a press release informing that this Court swore in the new presiding judge of the Court Martial without explaining that it did not appoint him and submissively accepted the unconstitutionally decision of the Minister of Defense," says the Access to Justice spokesperson.

Ironically contrasting, since 2011, the Ministry of Defense stopped publishing military justice appointments in the Official Gazette. As provided for by the Internal Regulations of the Military Criminal Judicial Circuit, since that date, the appointments of judges, magistrates and military public defenders - in short, members of the jurisdiction, excluding administrative and accounting staff - appear on the Supreme Court’s website. 

Executive Connection

The modality is not new though. Previous cases now look like tests to measure the willingness of the military justice apparatus to take civil cases.

Among them, one case of September 2016 stands out. At that time, the Primero Justicia (Justice First) party circulated a video on the media showing a recreation of military staff suffering, like any other citizen, the problems of the economic and political crisis that the country is going through. That is why producers Marco Trejo, César Cuellar and James Mathison were arrested and referred to military courts.

On that occasion, the chief justice of the Supreme Court of Justice, Maikel Moreno,?sanctioned this week by the US Department of Justice?, ordered "to remove this case from said jurisdiction and refer it to its natural jurisdiction, as the ordinary criminal jurisdiction, for the process to continue ensuring the protection of rights and constitutional guarantees."

In spite of this precedent, now the Judiciary - under strict control of the Executive - agrees to accept the prosecution of civilians by military courts. The change is likely to be due to the need to evade the sphere of influence of General Prosecutor Luisa Ortega Díaz. From the dependence of military judges with the Ministry of Defense, another line of command is deduced, one that connects them with the Commander in Chief of the Armed Forces, Nicolás Maduro, president of the Republic.

The night that Sergio Contreras was presented at the Military Court, Captain Claudia Carolina Perez de Mogollón charged him with crimes of Military Rebellion, Treason against the Homeland and Subtraction of Elements from the Armed Forces. He was sent to the military prison of Ramo Verde, in the mountains southwest of Caracas, where the most well-known political prisoner of the Bolivarian Revolution and party companion, Leopoldo López, former mayor of Chacao municipality (northeast of Caracas), has also been confined for three years.

His family has not been able to see him. They demand – still without success - to know about his health and imprisonment conditions. His lawyers expect the delivery of copies of actions and appointment of the defense to go to Ramo Verde and try to see him. Meanwhile, the 45 days given to submit the final decision of the investigation, to finally know the fate that the military justice chose for Contreras, go by.

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