Richard Mardo to Members of Parliaments of the World (07.25.2013) @MundoVente


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Richard Mardo to Members of Parliaments of the World (07.25.2013) @MundoVente

  1. 1. REPÚBLICA  BOLIVARIANA  DE  VENEZUELA ASAMBLEA NACIONAL Caracas, july 25, de 2013 Members of Parliaments of the World REF: ATTACK ON PARLIAMENTARY IMMUNITY IN VENEZUELA. THE CASE OF RICHARD MARDO. Esteemed colleagues: We the undersigned, MARÍA CORINA MACHADO, DINORAH FIGUERA, EDGAR ZAMBRANO, CARLOS BERRIZBEITIA and HÍRAN GAVIRIA, representatives elected by the people of Venezuela, and leaders of the opposition bench in the National Assembly of the Bolivarian Republic of Venezuela, would like to inform you of the grave threats that parliamentary immunity is currently facing, specifically in regards to Rep. Richard Mardo, who will be stripped of his parliamentary immunity on July 30 of this year. Such a situation compels us to request your support. I BACKGROUND On February 2013, during a plenary session of the National Assembly, Representatives Diosdado Cabello and Pedro Carreño, members of the government party (PSUV), publicly accused Rep. Richard Mardo of incurring in acts of corruption after having received checks and wire transfers amounting to important sums of money, allegedly originating from contractors employed by municipalities and governorships currently presided by Primero Justicia, the opposition party of which Rep. Mardo is an active member. The financial documents that served as evidence for Rep. Cabello’s and Rep. Carreño’s allegations were submitted before the Attorney General of the Republic at the same time that a warrant for Rep. Mardo’s arrest was issued, despite the fact that the latest financial movements on record date back to the year 2011, a time which precedes Richard Mardo’s condition as a parliamentarian.
  2. 2. Other investigations were launched in parallel, one by the National Assembly’s Accountability Commission (Comisión de Contraloría de la Asamblea General), and another by the Attorney General’s office, neither of which allowed the involvement of Rep. Mardo, who was even barred from seeking and appointing legal council, obtaining access to the investigation records, or examining the evidence brought forth against him. It is worth noting that the National Assembly’s Accountability Commission carried out its investigation of Rep. Mardo well into the present month of July, 2013, even though repeated calls for investigating PSUV Representatives for similar charges have been systematically denied, invoking the precept of parliamentary immunity. In the case of Rep. Richard Mardo, this consideration was summarily overlooked. 1 As a further injustice, the claim presented by government-party Representatives eventually became a formal request for impeachment, presented by the Attorney General before the Supreme Justice Tribunal (Tribunal Supremo de Justicia) on March of this year, wherein Rep. Mardo was charged with alleged crimes of Fiscal Fraud and Money Laundering. Only then was Rep. Mardo allowed to finally access the investigation records which were compiled without his involvement, and thus confirm that the evidence which supported and motivated the Attorney General’s charges were forged, tampered with and manipulated in order to make it seem as though Rep. Mardo was the direct beneficiary of the checks and wire transfers. In other words, the evidence officially presented by the State was fraudulent. A complaint was filed before the Court in response to these findings, which has yet to be accepted by the Court. Also worth noting, amongst the evidence that the State has presented to support its petition for Rep. Mardo’s impeachment are several wire transfers in which Rep. Mardo is the benefactor and not the beneficiary, wire transfers in which funds are moved between Mardo’s own personal accounts, and a report from the National Anti-Drug Agency (Oficina Nacional Antidrogas) which clears Rep. Mardo´s financial records from any suspicious activities. Despite all this, and in a gross violation of due process, the Attorney General requested that Rep. Mardo be suspended from his office and barred from exercising his post as a Member of Parliament, so that a further investigation may be carried out in order to establish criminal responsibility, all the while admitting that there are no elements that prove the illicit origin of Rep. Mardo’s funds. Furthermore, it has since been proven that the documents supporting the State’s charges against Rep. Mardo are copies that do not originate from a government body nor from any financial institution that could attest to their authenticity. In fact, said documents, to be used as evidence for Rep. Mardo’s impeachment, originate from his political adversaries Rep. Cabello and Rep. Carreño.                                                                                                                 1
  3. 3. All of the arguments hitherto stated have been presented before the Supreme Justice Tribunal and its Constitutional Chamber. They have either yet to be resolved, or they have been rejected outright. It is worth noting that it is impossible for Rep. Mardo to have perpetrated the alleged crimes that he has been charged with, Fiscal Fraud and Money Laundering. To date, the National Tax Agency (SENIAT) has not raised any doubts about Rep. Mardo’s tax returns, and only after this argument was presented before the Supreme Justice Tribunal were Rep. Mardo’s financial activities audited, a process which has not yet concluded. Neither the Attorney General nor the National Assembly’s Accountability Commission have been able to so much as suggest a possible illicit origin for the funds and assets that Rep. Mardo allegedly laundered. II THE ATTACK ON PARLIAMENTARY IMMUNITY The aforementioned facts notwithstanding, on July 16, 2013, the Supreme Justice Tribunal agreed to hear the Attorney General’s petition for stripping Rep. Mardo of his parliamentary immunity through an impeachment. 2 In its ruling, the Supreme Justice Tribunal ordered the President of the National Assembly, Rep. Diosdado Cabello, to be notified “that the National Legislative Body should deliberate about removing Richard Miguel Mardo Mardo´s parliamentary immunity, an action which, if taken, is fully in accordance with Art. 380 if the Procedural Criminal Code.” This clearly demonstrates how the government party’s sole objective, in collusion with institutions such as the Supreme Justice Tribunal, the Attorney General, and the National Assembly, rather than fully investigating an (nonexistent) act of corruption, is to separate Richard Mardo from his office as a Member of Parliament and bar him from exercising any other public office for the duration of the trial, as stated in the unconstitutional Art. 380 of the Procedural Criminal Code.3 If this PSUV-sponsored ploy succeeds, Richard Mardo would not be able to run for office in the upcoming Dec. 8 municipal elections, despite enjoying a wide margin of popularity as a leader in his home state of Aragua, where he obtained 44,17% of the vote in 2012 state elections. 4 Worth noting is the fact that the government party (PSUV) is treating the removal of parliamentary immunity, the separation of Rep. Mardo from his office, and his being                                                                                                                 2 3 “Artículo 380 Suspensión e Inhabilitación Cumplidos los trámites necesarios para el enjuiciamiento, el funcionario o funcionaria quedará suspendido o suspendida e inhabilitado o inhabilitada para ejercer cualquier cargo público durante el proceso”. 4
  4. 4. barred from exercising public office as if the three consequences were legally synonymous, which they are not. Firstly, parliamentary immunity is a safeguard for the free exercise of legislative duties; a constitutional guarantee meant to ensure the independence and autonomy of the National Assembly. It is a procedural requirement that protects Representatives from being tried, detained, searched, or seized, without having previously fulfilled constitutionally mandated formalities, such as an impeachment hearing before the Supreme Justice Tribunal, which must itself be approved by the National Assembly. The removal of parliamentary immunity only supposes the ability to subject an elected Representative to an investigation or legal process, while he or she is still in office. The separation of a Representative from his or her office is a power attributed exclusively to the National Assembly, as stated in Art. 187, section 20 of the Constitution of the Bolivarian Republic of Venezuela, which requires that a two- thirds majority for said motion to be approved. 5 Lastly, barring an individual from public office is an accessory penalty that can only be decided by a duly constituted court; only after the accused is tried, proven guilty and such ruling is not appealable. In the case of Rep. Mardo, the State seeks to remove his parliamentary immunity, separate him from his office and bar him from public office without regard for parliamentary procedure or constitutionally established norms.6 III THE ATTACK ON DEMOCRATIC INSTITUTIONS In Venezuela, Representatives before the National Assembly are elected by the people they represent. They are granted the privilege of parliamentary immunity in Art. 200 of the Constitution of the Bolivarian Republic of Venezuela, which reads:                                                                                                                 5 “Artículo 187. Corresponde a la Asamblea Nacional: (…) 20. Calificar a sus integrantes y conocer de su renuncia. La separación temporal de un diputado o diputada sólo podrá acordarse por el voto de las dos terceras partes de los diputados y las diputadas presentes” (negrillas añadidas). 6 Ya la Corte Interamericana de Derechos Humanos (caso: Leopoldo López v. República Bolivariana de Venezuela) ha condenado la aplicación de inhabilitaciones para ejercer cargos públicos, sin debido proceso y sin la intervención de autoridad judicial. Especial énfasis hizo la Corte en que dichas habilitaciones limitan el derecho al sufragio, tanto activo como pasivo, y por tanto deben contar con garantías especiales. V. mendoza-vs-venezuela-fondo-reparaciones-y-costas-sentencia-de-1-de-septiembre-de-2011-serie-c-no-233
  5. 5. Article 200. Representatives before the National Assembly will enjoy immunity in the exercise of their duties from the time of their proclamation until the conclusion of their term in office or their resignation. In case of alleged criminal acts perpetrated by members of the National Assembly, the National Assembly will defer exclusively to the Supreme Justice Tribunal, which is the only authority which may rule upon the detainment of a member of the National Assembly, with previous consent from the National Assembly. If a member of the National Assembly commits a flagrant crime, the authorities may place him or her under custody in his or her residence, and will immediately inform the Supreme Justice Tribunal. Public officials that violate the immunity of members of the National Assembly will incur criminal responsibility and will be punished in accordance with the law. Parliamentary immunity is a constitutional guarantee that not only protects Representatives individually, but also safeguards Parliament as a democratic institution, as well as the people’s representation in public affairs. At the present, in Venezuela, parliamentary immunity of Representatives has become seriously damaged, as is being evidenced in the case of Rep. Richard Mardo. In an upcoming plenary session of the National Assembly, on July 30, 2013, the State seeks to remove Rep. Mardo’s immunity, separate him from his office, and politically disqualify him through a simple majority vote of the government party in parliament, and not, as established in Art. 187 of the Constitution of the Boilvarian Republic of Venezuela, through a two-thirds majority. Such was the public announcement made by President of the National Assembly, Rep. Diosdado Cabello. 7 These acts against the National Assembly, against Representatives and, in summation, against the Venezuelan people, gravely affect the development of democratic institutions and may constitute a dangerous precedent for Venezuela, as well as for the entire region.                                                                                                                 7 dijo-cabello
  6. 6. IV REQUEST On behalf of the Venezuelan people, whom we represent, we urge that you submit this document for the consideration of the Parliament to which you belong, so that your legislative body may condemn this affront to the constitutional order and to democracy. We also ask that a representative be sent to Venezuela on Tuesday, July 30th , when it has been announced that Representative Richard Mardo will have his parliamentary immunity removed, to the detriment of the Rule of Law, and as a further step in the criminalization of political dissidence in our country. Above all, we ask for your prompt attention to this message, and a expeditious reply to the same. Respectfully, MARÍA CORINA MACHADO DINORAH FIGUERA EDGAR ZAMBRANO CARLOS BERRIZBEITIA HIRÁN GAVIRIA