Summary, comments and trnslaton by Carlos Armando Figueredo P.

Claudia Nikken, a graduate of the School of Law, Universidad Católica Andrés Bello, Caracas, wrote an defended a paper for her Doctor’s degree in Advanced Studies, Université Panthéon-Assas (Paris II) in France, tiltled "The President of the Republic of Venezuela Under the Point of View of Political-Criminal and Political-Constitutional Justice (The case of Mr. Carlos Andrés Pérez, former President of the Republic)", under the direction of Professor Claude Goyard.

It is a most interesting, well written and documented work, centering basically on the treatment of the political responsibility of the Head of State and governement in Venezuela.

The paper’s author introduces the theme by clarifying that in order that there may be political responsibility it is necessary that a disagreement should exist between the subject of such responsibility and the body that such subject is bound to render account. Thus, when the President of the Republic is not bound to account to any body, one may say, as some of the authors of constitutional law affirm, that the President of the Republic is not politically liable.

Nikken recalls that, under the Venezuelan constitutional system, the Head of State’s responsibility is "political-moral" since it is only questioned through the political responsiblity of the ministers of the cabinet, who may indeed be censured by parliament. A minister’s vote of censure may imply his dismissal but it only affects "the Head of State’s leadership". She adds that "the way to seek the President of the Republic’s political liability is indirect: he shall not be the dismissedsubject, only one of his ministers, as a result of the former’s political policies".

In the paper’s introduction it is expressed that the posecution of the President of the Republic of Venezuela seems to "be featured by a process pertaining to political-criminal justice". Nikken tells us forthwith that the "prosecution in 1993 of the President of the Republic, Mr. Carlos Andrés Pérez seems o have torn down the Venezuelan conception of the prosecution of the Head of State: to move for his criminal liability appears to have been the only way to move for his political liability.

The first part of Claudia Nikken’s doctoral paper is titled "The Prosecution of the President of the Republic, a case of political-criminal justice". She observes that "political-criminal justice tranlates into special proceedings, as a privilege of jurisdiction and of criminal proceedings granted to the highest holders of State functions, when accused of having commited acts being able to imply constitutional responsibility". She then says "These proceedings are political not only because the intention is to prosecute the persons performing political power within the State, but also because a series of privileges are vested upon them. It is criminal because the rules applicable thereto pertain to regular criminal law".

The First Chapter of this first part reviews the President of the Republic’s constitutional responsibility , recalling that, under aticle 192 of the Venezuelan Constitution, the President of the Republic is liable for the failure to comply with his constitutional duties, Now then, "this failure may be legally defined, or not, as a punishable ction". Nikken underlines that "this is why the Constitution does not mention the action from which the prosecution of the President of the Republic may resut: the judge is left with some sort of discretionary power to determine the seriousness of such actions." She adds that, faced with the commission by the President of the Republic of an act being considered as a crime by the criminal law, his criminal libility arises therefrom; if dealing, however, with the commission of acts not being defined as crimes, there would be room for political sanction only, to wit: dismissal. As it is accurately said in the paper, however, the President of the Republic may be tried only by the Supreme Court of Justice whenever he may have committed acts defined as crimes in the law; these are the only causes to prosecute the President of the Republic and, if his guilt should be proved beyond reasonable doubt, he may be dismissed.

In the same chapter of the doctoral paper there is review of crimes being defined in Venezuelan law. There is a distinction between political crimes and odinary crimes, making it clear that Venezuela statute law does not establish such distinction, although the Penal Code does define facts and acts as crimes "that may be deemed as political from an objective point of view, that is those threatening the State’s political order. It is reminded that the crimes that may be deemed objectively as politicl are those qualified by Book Two of the Criminal Code as crimes against the Nation’s independence and security and threatening political freedoms. Nikken points out that these political crimes from an objective point of view may be committed by the President of the Republic "either through action or omission, that is to say by infrigement of his constitutional duties, the first of them being that of guaranteeing the Republic’s internal order and international security". The existence is underlined of doubts as to the possibility of proving that the President of the Republic’s action or omission may fit the definition of one of those crimes. The paper’s author puts the follwing questions: Is it that the President of the Republic’s omission when facing an internationl urgency situation results in criminal liability? As from what moment shall his omision become criminal?".

It is pointed out in the same part, as it is obvious, that the President of the Republic, just as any other common citizen, may be liable for the commission of clearly common crimes and other common crimes committed while performing his functions, There follows a review of the crimes defined by the Organic Law for the Safeguard of Public Property. The active subject of the crimes defined in this law is qualified, we are dealing with a public officer and the President of the Republisc is the highest public officer. The protected property is the public patrimony, the victim is the State, a public entity. Nikken offers us a summary of the crimes of a general nature that may be committed, in certain cases, by the President of the Republic: deviation of public funds, undue use of bank accounts, abuse of authority, influence traffic, embezzlement of public funds, extortion, corruption, illegitimate use of information, unawful enrichment.

The first chapter ends with the following paragraphs:

Prior to reviewing the second chapter, I am compelled to say something on what has been considered as a privilege of jurisdiction and proceedings. The "privilege" of being tried by the Supreme Court of Justice as sole instance deprives the President of the Republic, as it does the other officers eventually being tried with him in the same manner by the highest Court of the Republic, of the possibility of having a recourse to a higher instance whenever the judgment may be adverse. There is a denial of the right of appeal been guaranteed to all persons by the American Human Rights Convention.

The second chapter deals with the prosecution of the President of the Republic. In a first section there is emphasis on the character of special criminal judge being attributed in this case to the Supreme Court of Justice, on its criminal competence, on the proceedings before the Court, the rules being applicable to such proceedings, the effects of the final judgment by the Supreme Court.

A second section offers a review of the proceedings to accuse the President of the Republic, pointing out that the President’s criminal liability is demanded on two occasions during the proceedings: at the time of filing the writ of accusation and when filing formal charges. It is made clear that, under Venezuelan law, any citizen is entitled to formally accuse the President of the Republic. There s an analysis of the bona fide role to be played by Public Prosecution. It is pointed out that in the accusation proceedings against the President of the Republc, as regulated by the laws being in force in Venezuela, there is a plain contradiction: the Attorney General of the Republic files the writ of accusation with the Supreme Court of Justice, during the entire proceedings he acts as an accusing party. Now then, how is it possible to be at the same time an accusing party and a bona fide party? Prior to the creation of the office of the Attorney General under the Organic Law of the Office of the Attorney General of the Republic, the General Counsel of the Republic, who performed both the functions of highest Public Prosecution authority and of Counsel or Solicitor General of he Republic, the writ of accusation to prosecute the President of the Republic was filed and forwarded by the Counsel General of the Republic, but the bona fide role was performed by the Special Prosecutor to the Supreme Court of Justice. In the trial against Mr. Carlos Andrés Pérez as President of the Republic, the Attorney General acted both as prosecutor and bona fide party. The motion of counsel for the defense for the bona fide role to be performed by the Special Prosecutor was denied. This is what Nikken says on the issue:

Claudia Nikken’s doctoral paper closes its first part that deals with the prosecution of the President of the Republic as a political-criminal justice, using words that we transcribe textually:

In the second part, Claudia Nikken’s doctoral paper comments on the Antejuicio and the Senate authorization for the prosecution of the President. She calls them a case of political-constituional justice. She explains how the proceedings operate during the antejuicio de mérito before the Supreme Court of Justice, in order to determine if the accusaton is well grounded and if there are probative elements justifying the President’s prosecution. She then refers the proceedings before the Senate of the Republic to authorize the Prosecution if the Supreme Court ruled that tehere was cause for it.

The question is put of knowing whether the preliminary proceedings of the antejucio and the Senate authorization are part of the political-criminal justice as a privilege of proceedings or if, on the contrary, they pertain to the political-constitutional justice, noting that the latter is that which "seeks to apply an exceptional politcal sanction, following jurisdictional proceedings, to officers having committed a wrong of such nature that it affects their political liability".

She enters the world of comparative law, reviewing the proceedings to establish political-constitutional liability of the United States’ President, through impeachment, and of the French Republic’s President, where the competent court to try him is the High Court of justice, being made of senators and deputies. She notes that the North American impeachment has the purpose of establishing the President’s political liability and of sanctioning him, adding that if the action leading to his liability is of a criminal nature, he may be tried by regular courts, under regular proceedings since he no longer is the President. She comments that, in France, the President is tried only by the High Court of justice in cases of high treason, it being the duty of regular courts to try him in cases of liability resulting from ordinary law. After these considerations, she concludes that, in Venezuela, the proceedings prior to the prosecution of the President of the Republic (antejuicio and Senate authorization), are a necessary condition in order that the porsecution may be forwarded, underlining that "even if the goal is to impose a political sanction on the Head of State by suspending him and if these proceedings differ from the trial, they should not be considered as having a political-constitutional nature: these would be prerrogatives concerning the political-criminal justice."

The firt chapter of this part of the paper deals with the constitutional grounds for the proceedings being peliminary to the prosecution of the President of the Republic, referring to the antejuicio de mérito, to the aspect of a procedural privilege implied, to the object of the decision adopted in it, to its procedural regulation. It refers also to the obligation imposed on the Supreme Court to provide the President of the Republic with a copy of the writ of accusation prior to any decision, clarifying that "the sole purpose attributable to this Court obligation is to allow the President to participate in the proceedings of the antejuicio in order to assert his arguments, so that the Court may decide having taken into consideration all the elements surrounding its decision". She then notes that in the antejuicio de mérito one is not faced with contradictory proceedings and that "they being most brief proceedings, there would be little time available to allow the accused subject to present his arguments since, in all events, the purpose of the antejuicio is not that of establishing the accused subject’s guilt", adding that "even if denying the judicial character of the antejuicio de mérito, the denial of the accused subject’s right of defense is absolutely contrary to the Constitution".

On this issue of the right of defene, Nikken has very clear concepts. She quotes a precedent from the very same Supreme Court of Justice, in Political-Administrative Chamber, of November 17, 1983, that we quote here also:

Nikkent asserts, most accurately, that the Supreme Court of Justice, "during the proceedings of the antejuicio de mérito in 1993 against the President of the Republic, Mr. Carlos Andrés Pérez, ignored the provisions governing it, and this tainted the proceedings with a series of irregularities." The first of these irregularities, she tells us, is the violation of the President of the Republic’s right of defense. In effect, these are her words:

Another irregularity being referred consisted in the lack of respect for the maximum term of the proceedings’ duration; ten days of hearings.

She concludes this part of the paper related to the proceedings of the antejuicio by saying the following:

In the same section’ s second part being commented, there is an analysis of the authorization to prosecute the President , corresponding to the Senate, whenever the Supreme Court should have determined, in the antejuicio, that there is cause for prosecution. We are told that this authorization by the Senate is a complement of the antejuicio de mérito and that its fundamental purpose, as that of the antejuicio, is to guarantee the continuity of public powers. As to the effects of the Senate authorization, it is confirmed to us that the Senate’s positive decision implies the criminal prosecution of the President of the Republic, and his immediate suspension in the performance of his duties while the trial lasts.

In the lasts paragraphs of this part of her paper, Nikken considers the facts having surrounded the Senate’s decision to authorize the prosecution of Mr. Carlos Andrés Pérez, President of the Republic, in clearly expressed words now quoted:

This section’s second chapter refers to the transition from the political-criminal justice to the political-constitutional one. It reviews the Supreme Court of Justice’s role as a Political Judge: the antejuicio as a deviation from what is legal to what is political; the Supreme Court of Justice as a judge of the opportunity; the opportunity faced to the legality. There are also considertions as to the role that the Senate should play as the President’s judge. There are thoughts on the need to regularize the antejuicio de mérito. There is a detailed analyss of a most important point which is that of the President of the Republic’s dismissal before the trial had concluded, that it to say when he had not yet been proven guilty, when he was under presumption of innocence. In this chapter there is emphasis on the aspects of inconstitutionality having tainted the entire process against Mr. Carlos Andrés Pérez --I must addhere as a comment that they also affected two members of Congress who had been ministers in his cabinet, and two high ranking officer of his administration-- with reiterated violations of the right of defense, of due process and with the Supreme Court’s autonomy and impartiality having been negatively affected by external influences and by marked political interests.

The conclusion of Claudia Nikken’s doctoral paper puts the following questions: Was it necesary to convict Mr. Carlos Andrés Pérez? She tells us that Mr. Pérez was not convicted by means of the criminal trial, that he was convicted by the political-constitutional proceedings prior to his prosecution, since he was dismissed before the Court had decided whether he was guilty or not of the crimes of which he had been accused. This leads the paper’s author to move for the need to have a new definition of the President of the Republic’s constitutional responsibility, with such new definition being reinforced with the implementation of constitutional controls on his administration.