Editor’s introduction, by Joaquin Flores: That Guaidó was NOT Arrested upon Return To Venezuela is EVIDENCE that the Bolivarian Republic is Ruled by Law, not a Dictator
This professional legal opinion by Ms. Bracho explains why Guaidó was able to return to Venezuela without being arrested. To summarize, and in the interests of explaining a document (below) which contained some phrases that were difficult to precisely translate in the language of Venezuela’s constitutional legal framework, given my time constraints and not being a Venezuelan lawyer, I can nevertheless explain what is being said:
Guaidó is wanted for questioning, but there is not an arrest order against him. He violated a court order not to leave the country while the investigation is pending, but he also appealed this order and ‘jammed’ the legal process in so doing, so that his otherwise unlawful exit from the country actually placed him in a grey-zone. That means that in the interim, the courts may decide not to issue an arrest warrant based upon his departure from the country. While the courts generally frown on flagrant cases of not acknowledging a court order (prohibition), the courts should generally tend to use the least amount of coercion against a person who is being accused, or is wanted for questioning in a process which could lead to being accused. The latter case actually applies to Guaidó who has not yet been accused.
More significantly, Venezuela was very wise not to balance on the side of coercion, and instead interpret Guaidó’s rights as liberally as possible, and not arrest him upon return. The U.S plan was based upon the idea that Guaidó would be arrested, thus furthering their line that Venezuela is run by a dictatorship and not the rule of law.
Venezuelan media went into a feigned frenzy and convinced the American plotters that he would be arrested upon return, and were prepared to wave the bloody shirt. The non-event of his return was therefore anti-climatic and deflated any potential hype that would have been borne from his possible arrest.
There is still an investigation on Guaidó, and Venezuela will now be in the position to keep him in Venezuela if Guaidó’s appeal is validated, and only this investigation’s completion can lead to a duly lawful arrest.
Another interesting thing to consider: Guaidó’s propaganda team had ‘set up’ his return to Venezuela as some sort of confirmation of his resoluteness, fearlessness, righteousness, and even something of a ‘victory lap’.
This was meant to stoke a Venezuelan reaction that he ‘would be arrested upon return’, which Venezuelan media coyly allowed to be promoted, confusing the American plotters.
But in reality, Guaidó returning to Venezuela now puts him in compliance with the order to be in Venezuela! In essence, he has buckled under the real pressure, perhaps accurately predicting that his appeal against the ban on leaving the country would ultimately fail in court. Now Guaidó is back in compliance with Venezuelan law, and there is no arrest warrant issued yet, as the investigation against his possible crimes continues.
Therefore, we can predict that he will attempt to leave the country again, thereby violating the same order, having exhausted his appeal. The goal will be the same, to trigger a premature warrant not based on the actual crimes he’s being investigated for. But this will likely have very negative ramifications in terms of his public image in Venezuela, and spoils efforts to paint the Venezuelan government as dictatorial, and increasingly portrays him instead as acting in flagrant disregard for the blind and unbiased justice that in fact rules Venezuela. Remember that you read it here first – Flores
Published on: Mar 6, 2019 @ 09:43
On January 29, 2019, the Attorney General of the Republic, Tarek William Saab, petitioned the Supreme Court of Justice for authorization to initiate a criminal investigation against citizen Juan Guaidó. He did so when he considered that the acts carried out by this deputy were related to the occurrence of “violent acts in the country, pronouncements of foreign governments and the freezing of assets of the Republic, which would imply the commission of serious crimes that threaten the constitutional order “. His request was accompanied by the demand for precautionary measures that would allow the investigation to advance and settle the situation in a possible criminal proceeding.
On the same date, the Supreme Court of Justice communicated through its Chief Justice , that the collegiate body had adopted decision No. 1 in plenary session, with a presentation by Judge Juan José Mendoza Jover, through which he declared himself competent, agreed authorize a preliminary investigation against Guaidó, as well as issued measures prohibiting him from leaving the country without authorization until the investigation is completed; to freeze his physical assets and ability to transfer property; and the blocking and immobilization of bank accounts and / or any other financial instrument in Venezuelan territory.
On February 22nd, despite the court order that expressly prevented him from leaving the country without authorization, Guaidó appeared in Cúcuta as part of the concert that served as a facade to the alleged violation of national sovereignty that had been announced on February 23rd. Since then, he undertook a Latin American tour within the framework of which he announced that he would return to Caracas on March 4th.
On this date, with an important call of national and international media, as well as the presence of international delegations, Guaidó returned to Venezuela entering through the Simón Bolívar International Airport. The presence of foreign officials accredited in Venezuela in this act generated the official rejection of Miraflores.
In the last hours, the international media had fixed their attention on this event that we can classify as a kind of second round on February 23rd, because they had promised that this would be the occasion where the world would see the dictatorial character of the Maduro government, to which they had alerted of international consequences if some act happened against the foreign appointed ‘opposition leader’.
Thus, despite the fact that during an interview with journalist Patricia Janiot, Abrams indicated that they would not take military action if he was imprisoned, the Inter-American Commission on Human Rights before the announcement of the return of the self-proclaimed interim president, dictated on February 28, 2019, Resolution 1 / 2019 that contains the precautionary measure No. 70-19 in protection of the interests of Guaidó.
Now, these facts, read from the provisions of Venezuelan law, force us to make some considerations.
The first is to observe that it is another act of illegally disregarding the National Assembly and its majority caucus, of the authority of the Venezuelan Judicial Branch. Well we remember that we have observed this situation since the month of July 2016, the National Assembly decided to deviate from the normal relationship with the rest of the Public Powers.
The second is the individual flagrant disregard by Guaidó of a judicial order. It is important that we bear in mind that, according to our Constitution and international treaties, few elements are more important than equality before the law of all citizens. In this way we will see that everyone, regardless of whether we are civil servants or not, must respect the law and the actions of the courts.
Thus, if in general we all have the right to be presumed innocent and the obligation to comply with the orders of the courts, in the case of criminal trials, irreverence or contumacy has particularly burdensome consequences. It is through these judgments that the most sensitive interests of society are secured and this is the face of greater strength that the State has, within the framework of legislation.
Based on this, we have to observe that the status of deputy does not grant impunity or irresponsibility. The only form of immunity which exists is that which requires that, in case of being appointed, the highest authorities should be the ones who authorize the judicial procedure (whereas other citizens may find lawful procedures initiated against them by lesser or lower authorities – ed, J. Flores). Which, as we refer to at the beginning of this note, has already occurred. Likewise, when a Court of the Republic grants a precautionary measure, it does so because it observes the legal elements of prior and necessary are present together so that they may proceed.
The manner in which they are applied, in accordance with the provisions of the Organic Code of Criminal Procedure and the Constitution, obeys the logic of affirming the principle of a right to a free trial, seeking that whatever is done until there is a conviction, be the least overwhelming possible (as the suspect is generally free until accused, and is furthermore innocent until proven guilty, the state should use the least possible coercion to bring the suspect to questioning, and later the least possible in bringing the accused to trial – ed., J. Flores).
Now, in the present case, what we have is a citizen facing criminal proceedings, who received a clear and expressed order, which he did not acknowledge. This is a common assumption in the criminal sphere, and that is why the same Organic Code of Criminal Procedure in the chapter referring to the Substituting Precautionary Measures , indicates what the judicial authority should do when faced with this scenario.
In this case, when a citizen has failed to acknowledge a prohibition to leave the country, based on a request to the Public Ministry that the judicial authority revoke the injunction for non-compliance (as Guaidó’s lawyers have done, ed. Flores), or that the judicial authority proceed to do so ex officio, logically the tendency is to use a measure of greater weight against the citizen who did not acknowledge the order received.
It is important to note that there is no arrest warrant against Guaidó, or at least it has not transpired, and this is the judicial instrument that allows a public authority to arrest a citizen, and the acts that he has engaged in have not yet been qualified in the context of flagrancy to allow an exception to this principle.
In the same way, we must observe that the expression of a judicial decision on what happened is not simply automatic, because in the Venezuelan scheme in this phase, the judicial authority has as a function to tend to balance, to facilitate the procedures that allow an investigation – in everything that helps prove the guilt or innocence – as well as being the guarantor of the rights of the accused.
That is why, in these matters, the decision of the authorities should be expected to avoid stating a position that, without having all the necessary elements in consideration, prematurely issue an arrest warrant, because what is expected is a justice based decision, reasoned and weighted in accordance with the law.