Caracas Chronicles

When the history of injustice in Venezuela over the last two decades comes to be written, one of the most lurid chapters will be headlined Maria Lourdes Afiuni.

It was Hugo Chávez’s 2009 decision to persecute her, a sitting Judge, that set off the  collapse of his Bolivarian Revolution’s international reputation. The basic facts are simple; a sitting judge, Maria Afiuni, determined that the law required her to release a prisoner on bail. A common occurrence in a democratic country, this decision implicitly challenged Hugo Chavez’s painstakingly-constructed subordination of the judiciary, and of the rule of law itself, to his own authority.

Chavez responded as any twentieth century television caudillo might. He went on his personal TV show and denounced the judge as a bandit, a criminal, demanding she must suffer the maximum legal penalty, 30 years in jail, while muttering that this too was evidence of his magnanimity; “in Bolivar’s time she would have been shot”.

That same day, his toadying Prosecutor General, Luisa Ortega Diaz, caused Afiuni to be arrested, charged with “corruption”, as well as “assisting an escape”. Afiuni was pulled from the bench and locked up at INOF, the women’s prison in Los Teques.

Soon after, Ortega Diaz went on television to say that a missing court document, the “boleta de excarcelación” was clear evidence of Afiuni’s guilt on the charge of assisting an escape. No prisoner’s release can be lawful without this document, she told the interviewer. Its absence screams guilt.

Soon, Afiuni’s lawyer Jose Amalio Graterol discovered the missing document, properly included in Cedeño’s court file, correctly dated with Afiuni’s judicial stamp and signature affixed. Since she was arrested and jailed within an hour of Cedeño’s release, and her judicial stamp confiscated, there is no possibility the boleta was created after her arrest.   

He published a photograph of it online.

The regime shifted gears. Now it was alleged that Afiuni “received a benefit” in return for her decision to release Cedeño. This is the bribery section of the Penal Code. Here, though, no money had changed hands, so the prosecutors argued that the benefit referred to was not money or property, but “afectivo o espiritual”, that is, emotional or spiritual.

They argued that the approval abroad for the Cedeño decision was a “benefit” which Afiuni “received” as envisaged by the Penal Code: if, in other words, you felt a surge of approval back in 2009 when you heard a judge had defied Chávez and freed one of his political prisoners, you were by that very fact paying the bribe Afiuni is now accused of accepting.

This justification was sufficiently laughable that even Noam Chomsky, a long-time regime supporter, wrote to Chávez requesting leniency, suggesting that the honour of the  Bolivarian Revolution was at stake.

The main author of the Venezuelan Penal Code, Professor Alberto Arteaga,  called the decision “absurd”, and pointed out that any correct legal decision will have admirers, and the more important the correct decision, the larger the circle of admirers.

Consequently, the prosecutorial argument against Afiuni stands for the proposition that a judge who makes an important, correct legal decision in Venezuela commits a criminal offence if it meets with approval elsewhere.  

This justification was sufficiently laughable that even Noam Chomsky, a long-time regime supporter, wrote to Chávez requesting leniency, suggesting that the honour of the  Bolivarian Revolution was at stake. After all, if law becomes the creature of the Executive, lawful behaviour means only complying with the Executive’s will. This doctrine, otherwise known as the “Führerprinzip” has not been popular in human rights circles, however convenient it might be to the ruler.

Chávez did nothing.

Meanwhile, Afiuni languished in Los Teques, where, among other abuses, she was raped by representatives of the state, in closely monitored quarters under the eyes of guards and other surveillance. She became pregnant, suffered complications, lost the fetus, and was released to hospital, and from there, to house arrest, after a total of fourteen months in jail.

The house arrest lasted several years more.

No one has yet testified to any impropriety that she committed, yet her liberty remains constrained.

The timing and circumstances of her pregnancy makes it certain that it occurred inside prison walls. When a second Afiuni lawyer, Thelma Fernández, pointed out that international authorities had been given relevant material which would prove the facts she alleged (presumably including fetal DNA which would identify one perpetrator scientifically), the Prosecutor General turned her back on the evidence. Instead, she threatened Afiuni with another criminal prosecution, this time for “calumny” against the state. In assisting an accused rapist to escape prosecution through her own wilful blindness, Ortega Díaz opens the door to an eventual criminal prosecution of herself.

Seven years later, Afiuni’s trial drags on. By contrast, the US narco-nephews trial lasted twelve months from arrest to conviction by a jury.

No one has yet testified to any impropriety that she committed, yet her liberty remains constrained. She signs in twice weekly with police authorities, where she is often subjected to verbal abuse and other indignities.

While the regime seems committed to dragging her criminal trial out into eternity, other methods of attack have presented themselves as well. As a judge, Afiuni supposedly has security of tenure. A separate administrative hearing began in her absence, with the potential outcome being loss of her judicial position and pension.

Consequently, two ex-PSUV deputies, transformed magically into judges, plus a third person, launched a hearing. The allegation, once again, was “corruption”, with no specifics being alleged. However, “hearing” isn’t the right word here, since that implies that Afiuni would have the right to be heard by counsel of her choice.

Afiuni formally filed papers designating Jeset Garcia as her lawyer. The tribunal quickly removed him from the record, without reasons being given.

Called to the hearing last week, Afiuni refused to enter or to allow it to commence unless Garcia were permitted to enter also. She wished to be represented by counsel, and would not grant an unlawful audience any legitimacy by her presence without counsel. Nonetheless, the hearing commenced illegally.  Surprisingly, even the representative of the Inspectorate of Tribunals, lawyer Luzmila Reyes, argued that the hearing should not proceed without counsel. The panel of judges decided they would name counsel for Afiuni, and settled on…Susana Barreiros.

Barreiros has been a regime enforcer for many years. She reached an apogee when, as a judge, she convicted Leopoldo López for supposed crimes including “belonging to an organized crime group” and “instigating crimes”. When the regime presented witnesses who testified that “subliminal messages” in Lopez’s tweets constituted the crime of instigating an offence Barreiros didn’t hold them in contempt of court or laugh in the face of their perjury.

As things stand now, Afiuni has been told that she cannot change to another lawyer; another right denied her.

Instead, she convicted López on that evidence, sentencing him to almost fourteen years in prison. As López’s now-exiled prosecutor has said, the whole trial was a farce from beginning to end. Susana Barreiros presided over that trial, eventually imposing the harshest of sentences.      

As things stand now, Afiuni has been told that she cannot change to another lawyer; another right denied her. She’s stuck with Barreiros, or someone Barreiros designates, to perpetuate the injustice.

Last Friday, Afiuni filed a complaint against her treatment with the National Assembly, asking that body to debate her case formally and react. Such procedural violations, if they go unchallenged, may be used as precedent in future situations where the intention is to undermine the judicial branch.

While restitution of Afiuni’s own lawyer will do some good in the administrative trial; nothing will cure the accumulated monstrous abuse suffered by Judge Afiuni at the behest of state authorities.