Accountability from abroad for corruption of the Venezuelan State (Part I): Laundering of proceeds of public corruption before US courts

Jan-Michael Simon

Versión en español aquí.

In a notorious, internationally known context of widespread public corruption in Venezuela, the justice systems of foreign states are expected to respond effectively when their territory is used to launder money gained from corrupt practices in Venezuelan territory. In the first part of a series of blogs, the author analyzes two criminal cases in progress before the US courts (the Housing case and the Food for Venezuela case). The author concludes that, in the event of a conviction, the custodial sentences will probably be for long terms and the total amount of money involved in laundering will be confiscated. In a second part of the blog series, it will be analyzed how the Mexican courts have dealt with the ramification of the Food for Venezuela case in Mexican territory.

Introduction

A criminal proceeding against a self-proclaimed Venezuelan «anti-blockade agent» is currently underway before the U.S. justice system. This process represents another step in the search for accountability abroad for Venezuela state corruption. The individual’s image as a «Venezuelan ambassador, [who] has provided basic foodstuffs… to meet the needs of social welfare programs in Venezuela,» contrasts with legal actions in the U.S. brought against him and his associates.

U.S. authorities have charged the defendants with conspiracy to commit international money laundering and laundering of monetary instruments worth hundreds of millions of U.S. dollars. These would come from their transnational businesses, linked to acts of corruption by the Venezuelan State in investing in the welfare of its population, particularly public corruption related to the importation of basic foodstuffs.

Seguir leyendo →

The Urgent Need to Consolidate Democracy and the Rule of Law in Haiti

Gaël Pétillon*

Versión en español aquí. 

According to the Haitian Constitution, the legislative, executive, and judicial powers constitute the essential foundation on which the State’s organization is based. Within the exercise of their respective powers, duties, and functions, they are entirely independent. However, since January 2020, the failure to hold legislative elections has resulted in a gradual deterioration of this branch of power, the mandate of all deputies and two thirds of the senate having ended. The assassination of President Jovenel Moïse on the night of July 6th to 7th, as well as the death of the President of the Court of Cassation have worsened the situation from an institutional standpoint. This situation has exacerbated the dysfunction of the three branches: the National Assembly and the Superior Council of the Judiciary (Conseil Supérieur du Pouvoir Judiciaire – CSPJ) are now null, while the executive struggles to lead the nation effectively. An institutional vacuum is being created on top of the political and health crisis. Moreover, the recent earthquake of August 14, 2021 generated additional urgent needs, further exacerbating the aforementioned shortcomings and suggesting an upcoming deterioration of the human rights situation in Haiti.

Seguir leyendo →

Venezuela: The pandemic at the end of the world

José C. Ugaz SM*

How grand corruption and its functional kleptocracy destroyed a nation, condemning millions of Venezuelans to misfortune, a country which went from Bolivar’s dream to a never-ending nightmare. 

Grand corruption is like the coronavirus. Just as the coronavirus enters organisms silently and does not become visible until it has already taken hold of them, corruption undermines the structures of the State and its institutions in a subterranean manner until it is too late to prevent it. Like the virus, corruption does not distinguish between gender, age or social class, although it undoubtedly has the worst effects on the most vulnerable, for whom it is often fatal. And as we are seeing with COVID-19, corruption also deepens poverty and destroys the economy. Like the microorganism, it is easily contagious, spreads without limits, and has no cure. Only its terminal effects can be controlled with specific vaccines. Furthermore, it is not static. Corruption transforms itself like a new strain of COVID-19 resistant to antibodies which makes it very difficult to eradicate.

Seguir leyendo →

The significance of the Engel list: against corruption and in defense of democracy

Katharine Valencia*

Adapted from an article originally published on Revista Factum.

Spanish version available here.

There has been much attention to the “Engel List” in Central America in recent weeks. The list of corrupt and undemocratic actors published by the US Department of State on July 1 was highly anticipated, especially after a list of corrupt Central American officials requested by Congresswoman Norma Torres was published in May. With the Torres list paving the way, a total of 55 individuals from El Salvador, Guatemala, and Honduras were included on the Engel List, including high-level judges, members of Congress, and (in the case of El Salvador) presidential administration officials. 

Many of those placed on the list or associated with those named have sought to downplay its importance or asserted a lack of evidence against them. But what does inclusion on the Engel list actually mean? How important is it from the US perspective and what weight does it have? 

Seguir leyendo →

The Root of the Problem: Our Recommendations to the Biden Administration for Tackling Corruption in Central America’s Northern Triangle

Ursula Indacochea* and Katharine Valencia**

Versión en español aquí.

President Joe Biden’s Administration has been very clear that one of its top priorities is addressing the massive migration of people to the United States, mostly from Honduras, Guatemala, and El Salvador. Biden has opted to distance himself from the human rights-violating policies and the hostile and criminalizing narrative of his predecessor in office, Donald Trump; and instead, has promised a humanitarian approach and effective measures to attack the real underlying problems: insecurity, hopelessness and lack of opportunities and welfare in the countries of origin, which force people to migrate. 

This “root causes strategy» is being constructed with the involvement of several agencies, and rests on a sound premise: the need to understand the structural nature of the causes of migration, and that these causes cannot be resolved either in the short term or solely with the transfer of financial resources to governments. Where to begin, then, in addressing these issues?

Seguir leyendo →

Super network of Corruption in Venezuela

Eduardo Salcedo-Albarán*  & Luís Jorge Garay-Salamanca**

In 2019 Venezuela had the same Perception Corruption Index of Yemen, the country with “the largest humanitarian crisis in the world”[1]. With a score of 15/100 and ranking 176 among 179 countries, even North Korea and the Democratic Republic of Congo had a higher score than Venezuela: 18/100.[2]  The low Perception Corruption Index in Venezuela reflects the general opacity, clientelism and mismanagement that characterize most sectors and branches of the Venezuelan public administration today; conditions that sustain the most complex network of macro-corruption and institutional cooptation in the world.

A corruption network is a model that informs how individuals and companies -referred to as nodes/agents- interact to execute corrupt acts and accomplish other illicit objectives. Elaborated through a criminal networks analysis, those models allow an understanding of the subnetworks, the central nodes/agents, the levels of responsibility, and the resources flowing across indirect paths.

Before modeling and analyzing the situation of corruption in Venezuela, Lava Jato was the most complex network of transnational corruption known through empirical analysis. Originating in Brazil with eleven of the most powerful companies in the country, Lava Jato extended across Latin America involving local companies, as well as mayors, governors and presidents who received bribes as donations during electoral processes. Donations and direct bribes paid to candidates and public servants across Latin America reached approximately USD $800 million, according to judicial investigations conducted until 2019.

Considering the institutional effects of Lava Jato in various Latin American countries, in 2018 Vortex Foundation partnered with the Brazilian civic organization Humanitas360 to analyze the case in Brazil; as a result, a network of 906 nodes/agents that established 2,693 interactions was identified.[3] Then, in 2019 Vortex Foundation partnered with the Peruvian chapter of Transparency International, Proética, to analyze Lava Jato including Peru; the result was a network with 1,399 nodes/agents who established 3,758 interactions.[4] Both networks were defined as “macro” because their complexity reached the extension and diversity of macro-criminal networks[5].

Seguir leyendo →

Corruption on the Gualcarque River — Will Its Victims Have their Day in Court?

Naomi Roht-Arriaza**

Who are the victims of grand corruption?  The answer used to be “no one” or, at best, the state itself.  But especially with the advent of a human rights approach to corruption in the Inter-American and United Nations human rights systems, that perception is slowly changing.  Grand corruption affects the full range of human rights of individuals and groups.  When rights are violated, states have an obligation under international law to investigate, prosecute, and provide redress.  The UN Convention Against Corruption mirrors this requirement in Article 35. 

And yet national courts have been reluctant to recognize the rights of those who have suffered damage — either to participate in proceedings involving grand corruption or to recognize them as victims due compensation.  In part, the reluctance stems from difficulties legal doctrine creates for establishing the causal link between a specific act of corruption and harm to a specific person or group.   To create the same “justice cascade” as in human rights cases, corruption victims should be able to seek relief through either a criminal or civil action and as either individuals or communities or through representative organizations.  Where a state prosecutor has brought charges, victims should be able, as they can in  France and Spain, to be full participants in the prosecution.      

Seguir leyendo →

Lucha contra la corrupción con un poder judicial independiente y con integridad

Daniel Kempken*

La corrupción es un factor de inestabilidad en todo el mundo que sólo puede combatirse con un poder judicial independiente. La implementación de los enfoques prometedores dela Convención de la ONU contra la Corrupción (CNUCC) debería ser reforzada por la comunidad internacional. Para ello, se puede aprovechar una próxima sesión especial de la Asamblea General de la ONU que abordará la lucha contra la corrupción, así como la 9ª Conferencia de los Estados Parte de la CNUCC.

La Convención de la ONU contra la Corrupción marca el rumbo

En el derecho internacional, la conexión entre la lucha contra la corrupción y el fortalecimiento de un poder judicial independiente y con integridad está estipulada en el artículo 11 de la CNUCC, que ha sido ratificada por 181 estados. El Relator Especial de la ONU sobre la Independencia de los Jueces y Abogados no se cansa en señalar que la lucha contra la corrupción y la independencia del poder judicial deben ir de la mano. En las normas de aplicación del artículo 11 de la CNUCC y en los comentarios sobre la Convención, se exige a los Estados Parte procedimientos objetivos de selección de jueces, así como normas de integridad y transparencia. Entre los aspectos más importantes están además la protección contra la remoción, la remuneración adecuada y la seguridad personal de los jueces y juezas.

Para poner en práctica lo que establece la CNUCC, habría que insistir todavía más en esa conexión inseparable entre la lucha contra la corrupción y el fortalecimiento de la independencia e integridad del poder judicial. En el marco de la cooperación internacional, hay que plantear con mas fuerza esta conexión.

Seguir leyendo →

Judicial immunity: a double-edged sword in Guatemala*

Hannah Jane Ahern** and Ursula Indacochea***

On February 1, 2021, Judge Erika Lorena Aifán Dávila, judge for the First Criminal Court of First Instance, Na and Crimes against the Environment of the department of Guatemala with competence to hear High Risk Proceedings, Group D, issued an arrest warrant against former judge Mynor Mauricio Moto Morataya, at the request of the Special Prosecutor’s Office against Impunity (FECI). Moto was being investigated for the crime of conspiracy to obstruct justice, in the framework of the case known as «Parallel Commissions 2020,» a high profile case of corruption and manipulation in the high court election process that took place last year. Moto is a key figure in that complex case of co-optation of justice, and until shortly before his capture was ordered, he served as judge for the Third Criminal Court of First Instance, Narcoactivity and Crimes against the Environment.

In her position, Judge Aifán oversees cases of atrocities committed during the armed conflict, macro-corruption, and other high impact crimes, which has exposed her to threats of violence, harassment, smear campaigns, and other attempts to hinder her work. Recognizing the threats, pressures and reprisals she has faced, the Inter-American Commission on Human Rights (IACHR) has previously granted her precautionary measures, ordering the State of Guatemala to protect her life and integrity. Aifán is widely recognized as an anticorruption champion, not only in Guatemala, but also internationally; most recently, she is a recipient of the 2021 International Women of Courage award from the U.S. State Department.

The arrest warrant issued against Moto caused a stir, as it came after he was elected by the Guatemalan Bar Association as magistrate to the Constitutional Court of Guatemala, and was irregularly sworn in by Congress on January 26, 2021. Precisely in order to serve in his new position, Moto requested the Guatemalan Council of the Judiciary to place him on «leave of absence» from his position as criminal court judge until April 13, 2021, a request which was granted. Therefore, when Aifán ordered his arrest, Moto was no longer serving as a judge, nor had he yet assumed the position of magistrate of the Constitutional Court.

Seguir leyendo →

Honduras, where the «shield» against corruption has worked

CESPAD*

How are the corruption cases left by the MACCIH advancing before the Honduran courts? How much have the reforms to some laws approved by the deputies of the National Congress affected them? A brief and worrisome panorama shows that the «shielding» of corruption networks has worked in this Central American country.

To analyze the issue, the corruption case known as «Red de Diputados» becomes emblematic. In December 2017, the binomial formed by the Support Mission against Corruption and Impunity (MACCIH), and the Special Prosecutorial Unit against Impunity for Corruption (UFECIC, today called UFERCO), presented this case, initiating a criminal action against five deputies of the National Congress in collusion with three members of an NGO called the National Association of Producers and Industries of Neighborhoods and Colonies of Honduras (ANPIBCH), through which they illegally appropriated public funds that were intended for social projects.

Seguir leyendo →