VZCZCXRO9631
OO RUEHAG RUEHAO RUEHCD RUEHGD RUEHHO RUEHMC RUEHNG RUEHNL RUEHRD
RUEHROV RUEHRS RUEHSL RUEHSR RUEHTM
DE RUEHCV #1569/01 3512356
ZNY CCCCC ZZH
O 172356Z DEC 09
FM AMEMBASSY CARACAS
TO RUEHC/SECSTATE WASHDC IMMEDIATE 0171
INFO EU MEMBER STATES COLLECTIVE IMMEDIATE
WESTERN HEMISPHERIC AFFAIRS DIPL POSTS IMMEDIATE
RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC IMMEDIATE
RHMFISS/HQ USSOUTHCOM MIAMI FL IMMEDIATE
RUCNDT/USMISSION USUN NEW YORK IMMEDIATE 0002
RUEHGV/USMISSION GENEVA IMMEDIATE 0001

C O N F I D E N T I A L SECTION 01 OF 05 CARACAS 001569

SIPDIS

E.O. 12958: DECL: 2034/12/17
TAGS: PREL PGOV VE
SUBJECT: Sorting Out the Cedeno Story

REF: 09 CARACAS 1553; 09 CARACAS 1537; 09 CARACAS 1509 09 CARACAS 1491; 09 1555

CLASSIFIED BY: Robin D. Meyer, Political Counselor, State, POL; REASON: 1.4(B), (D)

¶1. (C) Summary. The December 10 release of imprisoned
banker Eligio Cedeno and the immediate detention of Judge Maria
Lourdes Afiuni, who ordered his release, have merged two issues:
corruption by Chavez insiders and the politicization of Venezuela's
judicial system. Embassy recommends a principled position on due
process issues but the avoidance of statements regarding the
particulars of specific charges. If not, Embassy cautions that we
could fall into a trap whereby the Venezuelan government (GBRV)
makes it appear that the United States is in collusion with corrupt
bankers. Embassy believes at least seven bankers being sought in
connection with recent banking scandals are in the United States.
End Summary.

Who is Cedeno and What Has He Allegedly Done?

¶2. (C) Eligio Cedeno is the former president of several
banks, including Banpro, Banco Bolivar, and Banco Canarias. He was
charged, along with Gustavo Arraiz, in November 2005 with
embezzlement ("distraccion de recursos financieros") in the case of
Microstar. The Prosecutor's Office alleged irregularities in the
authorization of USD 27 million to Microstar by CADIVI (Currency
Administration Commission) for the import of computers that
allegedly never entered the country. At the time, Cedeno was the
owner of the bank through which Microstar solicited the dollars
from CADIVI, and Arraiz was Microstar's representative. Cedeno and
Arraiz were detained in February and March 2007, respectively.
Their trial was annulled in May 2009 at the request of the Public
Ministry. The detention order against Cedeno was reinstated while
the case was reinitiated. In October, the Appeals Court for
Caracas ordered Cedeno's release because his detention had exceeded
the two-year maximum (see para 13 below). The Public Ministry
appealed the release order to the Constitutional Committee of the
Supreme Court and prevailed. The Court reportedly extended the
period of permissible detention until July 2010.

¶3. (C) Views vary regarding the legitimacy of the
underlying accusations against Cedeno. In an interview with "El
Mundo Economico y Negocios" in October 2009, Cedeno said he
believed his arrest was related not to the Microstar case, where he
claimed there was no evidence of any damage to the bank, but to his
alleged assistance in the escape from the country of union leader
Carlos Ortega, who being investigated on corruption charges.
According to Cedeno, "since they could not prove that I paid for
his escape, well they said, 'open a case against him and detain
him.'" Human rights attorney Carlos Ayala told Polcouns on
December 14 that two former prosecutors involved in Cedeno's case
were now in Miami, where they reportedly had filed affidavits
claiming they had been ordered to prosecute Cedeno regardless of
the facts. However, Embassy is aware that there may be information
linking Cedeno to criminal activities, including the illicit
acquisition of two banks.

Assessing Judge Afiuni's Decision to Release Cedeno

¶4. (C) On December 10, Judge Afiuni convened a hearing on
the embezzlement charges against Cedeno. According to press
reports, the two prosecutors involved in the case notified her that
they could not attend because of their required attendance at
another hearing on the bankers detained in connection with the
recent banking scandal (reftels). Judge Afiuni decided to defer
the hearing. However, she then considered Cedeno's defense
attorneys' request to revoke Cedeno's detention order. They
reportedly presented her with the opinion of the UN Task Force on
Arbitrary Detention, which argued that Cedeno's detention was a
violation of due process because of the repeated trial delays due
to government inaction and because his detention exceeded two
years. Judge Afiuni agreed to his release but prohibited him from
leaving the country, required him to surrender his passport, and
required him to appear before her every 15 days.

¶5. (C) According to press reports, about twenty minutes
after Cedeno's departure from the courthouse, DISIP agents appeared
and detained the judge and two sheriffs, Rafael Rondon and Carlos
Lotuffo. DISIP agents later searched Cedeno's residence and
detained one of his attorneys, Jose Rafael Parra Saluzzo, who was
planning to leave the country, presumably for the holidays. They
also later issued an arrest warrant for Cedeno as a fugitive.
Cedeno's attorney was released later that same day, while the
sheriffs were released conditionally on December 14 following
protests by the sheriffs' organization. The two sheriffs are
charged with corruption, aiding in the evasion of justice
("favorecimiento para la evasion"), and conspiracy ("asociacion
para delinquir").

¶6. (C) Judge Afiuni is being held in the DISIP facility,
Helicoide, pending her transfer to the women's detention facility
("Instituto Nacional de Orientacion Feminina," INOF). Judge
Afiuni's attorney has requested that she not be transferred because
of concerns that women she might have sentenced might harm her. In
a December 15 interview on the official VTV television, Attorney
General ("Fiscal") Luisa Ortega Diaz said that Judge Afiuni had
committed many procedural irregularities and questioned the
"inordinate haste" with which she had acted to authorize Cedeno's
release. The government charged Judge Afiuni with corruption,
abuse of authority, aiding in the evasion of justice, and
conspiracy. To date, only circumstantial evidence has been
reported in the press to justify those charges, specifically, the
allegation that the judge herself took Cedeno out the back exit of
the courthouse to a waiting motorcycle (see para 8 below).

¶7. (C) There are different views on the facts and law
involved in Cedeno's release and the judge's imprisonment:

* Contact with Lawyers: Attorney General Ortega alleged
that Judge Afiuni had violated Article 12 of the Penal Code by
having contact with one of the parties without the presence of the
other parties to the case. The President of College of Attorneys,
Ivette Lugo, publicly argued that Article 264 of the Penal Code,
which deals with the review of a detention order, does not require
the presence of the Public Ministry.

* Pre-Trial Detention: Cedeno's attorneys argue that his
continued detention contravenes Article 244 of the Penal Code that
establishes a maximum two-year period for pretrial detention. The
President of the College of Lawyers said that Cedeno's detention
violated Article 244 because it exceeded two years. In contrast,
Attorney General Ortega noted in the December 15 interview that
Article 244 also provides for extensions to that two-year maximum
for "serious cause" and that the Appeals Court had in fact granted
a 16-month extension.

* Release Order ("Boleta de Excarcelacion"): Some press
reports quoted Cedeno's attorneys as saying that Judge Afiuni
signed and issued a release order before Cedena left the
courthouse. Some reports cited the sheriffs as saying that the
judge had said she was going to issue the order. PSUV National
Assembly Deputy Escarra said on December 15 that the judge had
issued the release order. However, Attorney General Ortega said in
the December 15 interview that no such required release order had
been issued.

* Cedeno's Departure from the Courthouse: Some press
reports claimed that Cedeno left the courthouse through the main
entrance. However, most later press reports said he immediately
departed the courthouse through the judges' private elevator,
through a garage, and out a back exit, where a motorcycle was
waiting for him. Some reports say that Judge Afiuni personally
accompanied him to the back exit and to the waiting motorcycle.

* Sheriffs' Arrest: The sheriffs argue they were just
following judge's orders in permitting Cedeno's departure.
Attorney General Ortega, however, accused them of violating
procedures by not requiring the release order before permitting
Cedeno to leave the courthouse.

* Judge's Imprisonment: President Chavez and Attorney
General Ortega initially focused on the fact that Judge Afiuni made
the release decision without the participation of the prosecutors
and thereby had impermissible contact with one of the parties to
the case. According to Article 86 of the Penal Code, recusal is
the prescribed sanction for judges who, inter alia, have
"maintained directly or indirectly, without the presence of all of
the parties, any kind of communication with any one of them or
their lawyers, about the matter submitted for his knowledge."

Chavez Orchestrates the Judicial and Legislative Response to
Cedeno's Release

¶8. (C) In a television and radio broadcast on December 12,
President Chavez called for Judge Afiuni's imprisonment for 30
years to set an example for other judges. "This judge is a
criminal, everything was prearranged, the judge violated the law
because she called Cedeno to a hearing without the presence of the
representatives of the Public Ministry and took him out by the back
door." He demanded that the Attorney General ensure that the judge
and all those involved pay with "the full force of the law" and
said "it is more serious that the judge frees a criminal than the
criminal himself." President Chavez also asked the National
Assembly to pass a law to prevent similar judicial actions in the
future.

¶9. (C) President Chavez' PSUV Party (United Socialist Party
of Venezuela) announced on December 15 that it would propose in the
National Assembly the creation of an inter-branch ("interpoderes")
commission to evaluate judges. PSUV Deputy Escarra explained that
the commission would go beyond the specific case of Judge Afiuni to
clean up the system "that still in great measure is in the hands of
mafias who have distorted justice and fertilized the ground with
impunity." According to Escarra, the Commission "will do an
exhaustive evaluation of each and every judge and reinvigorate the
judiciary. It is necessary to combat this kind of conduct by this
judge and others who buy million dollar homes" with their salaries.

¶10. (U) On December 15, Public Defender Gabriela Ramirez said
that the investigation into Cedeno's release should include all
those officials behind this case and who were complicit.

The Backlash against the Judicial Attack

¶11. (U) The College of Lawyers, opposition political parties,
and NGOs have protested the continued detention of Judge Afiuni and
called for her immediate release. The spokesperson for the College
of Lawyers said the case of "makes clear the breakdown of the rule
of law and of the principle of the separation of powers." The
Venezuelan press reported the statements of the UN Task Force on
Arbitrary Detention, in which they accused the government of Hugo
Chavez of "creating a climate of terror in the judiciary" with the
goal of "undermining the rule of law." The papers also quoted them
as saying that the Cedeno case demonstrated the interference of the
executive branch in the judiciary. They called the arrest of the
judge a "strike by President Hugo Chavez at the independence of the
judges and lawyers of the country."

Relevant Provisions of the Penal Code (informal translation)

¶12. (U) Relevant Provisions of the Penal Code include:

* "Article 243: Liberty (Estado de Libertad): Everyone
accused of participating in a punishable act shall remain in
freedom during the trial except in exceptional circumstances
established by this Code. The deprivation of liberty is a
preventive measure that shall only be applied when other preventive
measure are insufficient to assure the purposes of the trial."

* "Article 244. Proportionality. No coercive measure
shall be ordered when such a measure appears disproportionate in
relation to the gravity of the crime, the circumstances of its
commission and the likely sanction.

In no case shall it exceed the minimum penalty established for each
crime nor exceed a period of two years. In exceptional
circumstances the Public Ministry or the plaintiff may request the
officiating judge ("juez de control") an extension that shall not
exceed the minimum sentence established for the crime . . . when
there exists serious causes ("causas graves") that justify it,
which shall be duly explained by the prosecutor or the plaintiff.
In this case, the officiating judge shall convoke the accused and
the parties to an oral hearing with the goal of deciding, taking
into account, with the objective of establishing the period of the
extension, the principle of proportionality."

* "Article 264. Review. The accused may seek a revocation
or substitution of the judicial measure of preventive detention as
many times as he may consider it pertinent. In any case, the judge
shall examine the necessity of maintaining the preventive measures
every three months and when he considers it appropriate may
substitute less serious measures. The denial by the court of a
revocation or substitution is not appealable."

Context: Wider Banking Scandal

¶13. (C) Between November 20 and December 11, the GBRV closed 8
banks associated with government insiders (Banpro, Banco Canarias,
Banco Bolivar, Banco Confederado, Central Banco Universal, Banco
Real, Baninvest, and Banorte) (refs a-d). Cedeno is the former
president of three of these banks, Banpro, Banco Canarias, and
Banco Bolivar. According to press reports, 10 bankers are being
detained, another 28 detention orders have been issued, 9 Interpol
red alerts have been requested by the GBRV, and 15 people have been
prohibited from leaving the country. Embassy understands that
about eleven people being sought are believed to have left the
country, of whom seven are believed to be in the United States.

Comment

¶14. (C) While it seems that Cedeno's incarceration may have
exceeded Venezuelan legal norms, the Embassy is not in a position
to evaluate the underlying merits of the government's original case
against Cedeno, the circumstances of his release from detention, or
the legal arguments regarding the correctness of the judge's
decision under Venezuelan law. The Embassy notes that the timing
of Cedeno's release and the banking scandal may be coincidental.
However, the factual, legal, procedural, and public diplomacy
issues raised in the Cedeno case are likely to arise again in the
cases of the individuals involved in the recent banking scandal.
For this reason, Embassy urges the Department to avoid statements
on the particulars of specific charges. Such statements could lead
us into a trap whereby the Venezuelan government makes it appear
that the United States is in collusion with corrupt bankers.
President Chavez would likely relish the opportunity to make such
an accusation.

¶15. (C) However, Embassy strongly believes that the
politicization of the judicial process -- as evidenced by President
Chavez' immediate demand for the judge's imprisonment for 30 years,
the statement by the President of the Supreme Court that the
separation of powers weakens the state (ref e), and the National
Assembly's decision to establish a judicial review commission --
demonstrates the alarming erosion of due process in Venezuela.
Embassy urges Department to take a principled stand on the general
issues of due process and the separation of powers, while
recognizing that such statements may be used to support potential
asylum requests.
DUDDY