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On December 10, 2009, Judge María Lourdes Afiuni granted bail to Eligio Cedeño, a Venezuelan banker accused of currency fraud, who was imprisoned on February 8, 2007. The decision of Judge Afiuni was based on Cedeño having being detained for almost three years without trial, exceeding the two-year pre-trial detention limit under Venezuelan law. Afiuni was also implementing a decision by the United Nations Working Group on Arbitrary Detention who months earlier had concluded that the detention of Cedeño was arbitrary.
In addition to granting bail, Judge Afiuni mandated several measures alternative to pre-trial detention for Cedeño, including the obligation to appear in court every two weeks, the prohibition to leave the country, and the retention of his passport. Approximately twenty minutes after Cedeño left the courthouse, around ten DISIP agents (today, Servicio Bolivariano de Inteligencia Nacional “SEBIN,” Bolivarian National Intelligence Service in English) arrested Judge Afiuni and her court’s bailiffs. According to an “arrest police report” and a “warrantless search police report,” the agents failed to present any search or arrest warrants nor did they inform Afiuni as to the reason for her detention.
According to international human rights law, no one shall be deprived of his physical liberty or subjected to arbitrary detention except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto. However, both the arrest and search of Judge Afiuni’s office were conducted without a warrant and without disclosing the charges, and as a result of her decision to grant bail to a person who had been imprisoned for a period of time that exceeded the maximum of two years provided by Venezuelan law. Therefore, the arrest of Judge Afiuni was an arbitrary and illegal act that violated her right to personal freedom.
A day after her arrest, during a public event that was mandatorily broadcast on national television on all TV channels in Venezuela, President Hugo Chávez called Judge Afiuni a “bandit,” instructed Attorney General Luisa Ortega and Supreme Court Chief Justice Luisa Estella Morales to keep her “in jail,” and requested the “maximum penalty: 30 years in prison” for her.
According to international human rights law, due process is the right of everyone to be heard, with due guarantees and within a reasonable time, by a competent, independent and impartial court established by law, and includes the right of everyone charged with a criminal offense to be presumed innocent until proven guilty. This includes the obligation of all public authorities to refrain from prejudging the outcome of a case, and from making any public statements on the culpability of the accused.
Public comments by President Chávez declaring culpability and asking for the maximum penalty for Judge Afiuni constituted a prejudgment of the outcome of criminal proceedings against her and a violation of her right to presumption of innocence.
On December 11, 2009, the Judicial Commission of the Supreme Court suspended Afiuni from her position as judge “until the Inspector General of Courts completes its investigation.” The suspension occurred without any notice, hearing, disciplinary proceeding or administrative proceeding against her. According to the media, only on April 12, 2010, four months after her suspension was determined, did the Inspector General of Courts begin an “administrative inquiry.”
While held at the Instituto Nacional de Orientación Femenina (“INOF,” National Institute of Feminine Orientation in English) for more than 13 months, Judge Afiuni suffered death threats, assassination attempts and harassment by other inmates. These circumstances were aggravated by the lack of separation of convicted from unconvicted prisoners. Also during her detention, Judge Afiuni suffered various health complications that were not treated with due diligence by Venezuelan authorities. In virtue of her very poor health condition, on February 2, 2011 Judge Afiuni was placed under house arrest.
Judge Afiuni’s legal counsel recently denounced publicly that Judge Afiuni was the victim of rape while in prison. The rape of a prisoner is a form of torture under international law. States have the obligation to diligently investigate any rape allegations, and to prosecute and punish the perpetrators. Instead, Venezuelan authorities have responded claiming that Judge Afiuni is a liar, threatening to bring a slander lawsuit against her and failing to diligently investigate her allegations.
María Lourdes Afiuni is currently still suspended from her position as judge, as a result of an arbitrary decision by the Judicial Commission of the Supreme Court.
With these actions, the State of Venezuela (1) violated Judge Afiuni’s right to personal liberty; (2) her right to due process of law; (3) the right of all persons deprived of liberty to receive dignified treatment, including the right to separation of convicted from unconvicted prisoners; (4) its obligation to diligently investigate the allegations of rape by judge Afiuni and prosecute and punish the perpetrators; and (5) the guarantee of stability and tenure of judges and magistrates.
These international standards are binding to the State of Venezuela since June 23, 1977, when it ratified the American Convention on Human Rights. On August 9, 1977, the Venezuelan State recognized the jurisdiction of the Inter-American Commission on Human Rights, and on June 24, 1981, it also recognized the jurisdiction of the Inter-American Court of Human Rights. On May 10, 1978, Venezuela ratified the International Covenant on Civil and Political Rights, and the Optional Protocol to the International Covenant on Civil and Political Rights.
Summarizing, the State of Venezuela has violated Articles 5, 7, 8, 11 and 25 of the American Convention on Human Rights, as interpreted by the Inter-American Court of Human Rights, and Articles 9, 10, 12, 14, and 17 of the International Covenant on Civil and Political Rights. The case of María Lourdes Afiuni is the eighth documented through HRF’s Caracas Nine campaign.
The case of María Lourdes Afiuni is the eighth that HRF has documented through its Caracas Nine Project.
| Last and First Names: | María Lourdes Afiuni Mora |
| Age: | 48 |
| Occupation: | Judge |
| Marital Status: | Single |
| Children: | Geraldine Afiuni (19) |
| Date of pre-trial detention: | December 10, 2009 |
| Date placed under house arrest: | February 2, 2011 |
| Charges: | “corruption”, “aiding and abetting a criminal”, “criminal conspiracy” and “abuse of authority” |