For years, Venezuelan President Nicolás Maduro and his allies have relied on their control of the judiciary to harass and sideline prominent opposition politicians. However, they have often left the repression of everyday protests up to armed supporters linked to colectivos.
That’s changed. A report published last week by the Office of the United Nations’ High Commission for Human Rights (OHCHR) reveals that judges and prosecutors are no longer merely turning a blind eye to the repression of ordinary Venezuelans, they are in many cases actively facilitating it.
After last summer’s crackdown on mass protests, the United Nations’ Human Rights Council (UNHRC) sent a team of investigators to Venezuela to determine how the judiciary had come to permit “extrajudicial executions, enforced disappearances, arbitrary detentions and torture.” In its recent report, the team concludes that “the independence of the justice system is considerably undermined.” Citing dozens of interviews with judicial authorities, victims, and human rights advocates, the report provides evidence of pervasive political interference at all levels of the judiciary.
As a result, impunity for human rights violations by both state and non-state actors are now the norm. The UNHRC argues the lack of judicial independence explains why judges and prosecutors are unable or unwilling to curtail a variety of rights abuses. These include forced disappearances by security forces to gender-based violence and extrajudicial killings of indigenous leaders in the Arco Minero del Orinoco region, where organized crime groups battle for control of the lucrative illegal gold-mining trade.
Although the report does more to confirm existing allegations of abuse rather than bring to light new occurrences, it underscores an overlooked yet puzzling development: as the Maduro regime grows increasingly repressive and authoritarian, it has come to rely more, not less, on courts and prosecutors to punish everyday dissent and shield the security forces from accountability. The judicialization of repression goes to show that while the ruling coalition may have closely avoided losing power in 2019, Maduro and his allies are now in the process of institutionalizing an authoritarian regime designed to last.
Captured courts, old and new
Political interference in the judiciary is of course nothing new in Venezuela. The country’s traditional parties, Democratic Action and COPEI, exercised significant influence over the judiciary during the latter half of the twentieth-century. Still, the courts were far more independent than they later became under Chávez, who made capturing the judiciary his first move. At the start of his first term, Chávez’s allies in the National Constituent Assembly declared a “judicial emergency” and replaced hundreds of ordinary court judges with hand-picked provisional appointees, circumventing the very constitutional rules they were busy writing. Then, Chávez packed the Supreme Court of Justice (TSJ), after it rebuffed him in 2004, with allies and relied on it to greenlight further steps to concentrate power in the executive.
The pervasive impunity for human rights violations is in part a product of these years. Venezuela expert Javier Corrales argues that capturing the courts was one of two key conditions that paved the way for the slide toward autocracy in Venezuela, along with the fragmentation of the opposition. “With those two factors in place, it’s more or less inevitable that a country will shift towards autocracy if that’s what the president aims for,” Corrales stated in an interview for Global Americans. As the UNHRC notes, “Since 2002, there has been no open and transparent recruitment of judges.” By 2019, less than 25 percent of judges were tenured. This has given Supreme Court magistrates “effective control over lower court decisions nationwide, particularly in the area of criminal law.” Most lower court judges refuse to move forward with sensitive cases until they receive instructions on how to rule from top magistrates. Otherwise, they risk losing their jobs or even facing criminal prosecution, like Judge Maria Lourdes Afiuni who was jailed for three years after releasing a Chávez critic from pretrial detention.
However, the current pervasive impunity described in the UNHRC report cannot be entirely explained by events that occurred under Chávez. At least until the mid-2010s, Venezuela’s judiciary occasionally functioned as a “double-edged sword”: most of the time it helped Chávez and Maduro concentrate power, but judges and prosecutors occasionally challenged the government. For instance, Chief Prosecutor Luisa Ortega—a longtime member of the ruling party—unexpectedly condemned Maduro’s attempt to disempower the opposition-controlled National Assembly in 2017, arguing Venezuela was no longer a democracy.
Courts as a tool of repression
Since then, Maduro has effectively tightened his grip over the judiciary—not only ruling out new acts of resistance by judges and prosecutors, but also repurposing parts of the judiciary to help punish everyday dissent. First, as soon as the opposition gained control of the National Assembly in 2015, Maduro and his allies repacked the TSJ with loyal allies. MPs from the ruling United Socialist Party (PSUV) pressured 13 judges to retire early and quickly filled the vacancies with regime loyalists, circumventing the judicial appointment procedures laid out in the constitution. With loyalists in place, the TSJ became a tool for overriding the opposition’s electoral victory.
“The moment Maduro knew he lost the National Assembly, he disarmed it using the judiciary,” explained Corrales. “The high court has become just another executive ministry—essentially, a set of cabinet positions.” According to the UNHRC, the TSJ has now delivered 127 rulings invalidating actions by the National Assembly and removed 29 MPs from office without due process. The TSJ also moved to replace the leadership of competing unelected bodies: first suspending elections to the Venezuelan bar association and then completely replacing the leadership of the National Electoral Council just last month, even though the National Assembly is supposed to choose who fills these positions. Most recently, the TSJ took over the leadership of Juan Guaidó´s Popular Will party, as well as two other opposition parties: First Justice and Democratic Action.
In my research, I have shown that autocratic presidents often duplicate institutions they wish to control. Why go to all the work of transforming an existing institution if you could simply create your own parallel organization to get the job done? The strategy of duplication is frequently on display in Venezuela: the National Constituent Assembly has become a de facto parallel legislature and communal councils have long acted as parallel local governments in cities and states formally governed by the opposition. The Maduro regime has followed the same playbook to criminalize dissent. Rather than rewriting the criminal code with new and harsher sentences or monitoring each court case against a protestor, the ruling coalition increasingly shuttles cases against civilians to a parallel system of military tribunals and special anti-terrorism courts set up by a Supreme Court decree in 2014.
Relying on military courts to try civilian protestors is not unusual for authoritarian regimes, but it was unusual for Venezuela—at least until recently. “Under Chávez, there was much less political prosecution of ordinary citizens,” stated Corrales. However, as protest in Venezuela shifted from the mass demonstrations of 2014, 2017, and 2019 to a growing number of scattered, local-level demonstrations, more and more civilians are appearing in front of military judges. There are clear incentives for the regime to channel trials to the specialized tribunals: lawyers, judges, and prosecutors are all active duty military members and subject to hierarchical discipline, increasing higher-ups’ control over verdicts, and hearings are almost always closed to the public. Over 800 civilians faced trial in the parallel court system between 2014 and 2018, including for obscure crimes such as “outrage against the military”—the charge used to jail prominent labor leader Ruben González since 2019.
Meanwhile, the ruling coalition has essentially shut down the parts of the justice system tasked with monitoring security forces. The unit in the Ministry of the Interior in charge of monitoring the infamous Special Action Forces (FAES) is even alleged to have carried extrajudicial killings of its own. Families that search for victims are denied information—or worse, become victims themselves.
Giving security forces an outsized role in administering justice also serves another function—it helps them maintain a veneer of legitimacy, at least among supporters. According to Corrales, constant corruption scandals and human rights violations actually make security forces more eager to take over the justice system, bureaucratic trappings and all. “Precisely because they are so lawless, they want to give signs of being law-abiding,” he explained.
But the damage goes deeper than that. While the Maduro regime won’t last forever, it’s transformation of the judicial system will leave a long-term obstacle for a post-transition government. Research on twentieth-century transitions has shown that it’s particularly hard for democratic governments to reform judiciaries if they actively facilitated repression under dictatorship. For instance, Chile’s “two-tier” justice system—one set of courts for security forces and another set for everyone else—continues to fuel impunity for human rights abuses even decades after the end of authoritarian rule. For this reason, changes within Venezuela’s courts documented by the UNHRC may cast a shadow over the country’s politics for years to come.
Will Freeman is a Ph.D. candidate in Politics at Princeton University. You can follow him on Twitter @WillGFreeman
