Rule of law: Afiuni case has ‘chilling effect’ on Venezuela’s judiciary

Yola VerbruggenWednesday 6 January 2021

After being arrested in 2009, Judge Afiuni suffered sexual, mental and physical abuse during her imprisonment. She was later removed and placed under house arrest. Having recently been diagnosed with cancer, Judge Afiuni now faces five more years in prison.

In mid-November 2020, the IBA’s Human Rights institute (IBAHRI), the Raoul Wallenberg Centre for Human Rights and the Human Rights Foundation made a joint submission to the United Nations office on the Independence of the Judiciary (the ‘Joint Submission’), in which they refer to Judge Afiuni’s trial as ‘Kafkaesque’.

‘After many years of observing the case against Judge Afiuni, our trial report concluded that there was a complete disregard for due process and fair trial guarantees, primarily owing to the absence of judicial independence and arbitrary decision-making,’ says Baroness Helena Kennedy QC, Director of the IBAHRI.

‘Her case is formative to the situation of the legal profession in Venezuela, demonstrating the significant and gradual deterioration of the rule of law and human rights in the country, creating a chilling effect,’ adds Baroness Kennedy.

Despite the international attention that Judge Afiuni’s case received, the Venezuelan government has not toned down their threats against judges, many of whom are provisional and could be replaced at any time.

Judge Afiuni was arrested under former President Hugo Chávez a mere 15 minutes after granting parole to Cedeño, but her ordeal continued under President Nicolás Maduro’s rule.

‘Under Chavez or Maduro, the pattern hasn’t changed. The political decision taken by Chavez and sustained by Maduro was decisive for the submission of not just one judge, but the whole judiciary,’ Diego García-Sayán, UN Special Rapporteur on the independence of judges and lawyers, tells Global Insight.

The deterioration of the independence of Venezuela’s legal system started in 2004, when then President Hugo Chávez and his party packed the country’s highest court with pro-government justices. Together with the creation of a new power allowing the governing coalition – dominated by Chávez’s party – to remove judges from the court, this marked the beginning of the end of the judiciary as an independent branch of government.

In 2013, the year Maduro became Venezuela’s President, protestors took to the streets in response to the country’s failing economy and high rate of violence. It wasn’t until 2019 that protestors started demanding Maduro’s resignation.

In December 2020, Maduro reaffirmed his power when he claimed a majority win in the country’s parliamentary election, a result that the European Union, United States and over a dozen Latin American countries have said they will not recognise.

Hundreds of peaceful protesters have been arrested since the start of the demonstrations and the chilling resonance of the ‘Afiuni Effect’, as it has been dubbed, has particularly had an impact on judges presiding over their detention. The subsequent imprisonment of the lawyer who dared to defend Judge Afiuni in court, José Amalio Graterol, has increased lawyers’ fear of taking on political cases.

A case in point is the conviction of Venezuelan opposition leader Leopoldo López in 2015. In this case, Judge Ralenis Tovar accepted that she had signed a warrant for López’s arrest out of fear of reprisals, according to the Joint Submission.

The judge who eventually sentenced López to over 13 years imprisonment in a military facility had been Judge Afiuni’s replacement and was well aware, therefore, of the precarity of her position.

‘The music being played is so clear that everyone knows they can’t dance out of tune,’ García-Sayán says. ‘In no case can such pressure be accepted. The world should continue to follow the developments in Venezuela very closely and try to find a political solution to the situation.’

López, a former Caracas area mayor, spent three years of his sentence in a military jail, after which he was placed under house arrest. He was freed by his guards during an attempted military uprising to overthrow Maduro in 2019, which failed. He later sought refuge in Spain’s embassy in Caracas, before fleeing Venezuela for Spain in October 2020.

‘What Judge Afiuni and thousands more experience today in prisons in Venezuela is what has also allowed for the prison system to be used as an implicit threat against those who dare to disobey or oppose the executive,’ said Verónica Hinestroza, a former IBAHRI programme lawyer who was involved in the trial observations, during a recent IBA event in which she discussed the case.

According to the Penal Forum (Foro Penal), a Venezuelan network of pro bono criminal defence lawyers, 356 political prisoners were held in the country as of the end of November 2020.

‘The case of Judge Afiuni increases our concerns about the weakness of the rule of law in Venezuela,’ says Juan Carlos Rocha, Co-Chair of the IBA Latin American Regional Forum.

‘The legal community in Latin America together raise their voice against patterns and decisions that have impacted a great number of universal principles, such as fair trial, due process and legality, which in no circumstances should be violated,’ adds Luis Carlos Rodrigo, Immediate Past Chair of the IBA Latin American Regional Forum.