Law and Justice under a Dictatorial Regime:
The Illegality of the Criminal Investigation against Edmundo González Urrutia

By Dante Alighieri (pseud.)

 

 

From our bridge he said: ́ ́So from one bridge to another, still talking about what my comedy does not intend to sing, we walked; and we arrived at the key, when we stopped to see the next ravine of the Malebolge and their respective fruitless cries; and I saw it prodigiously dark.'" (Inferno, Canto XXI, verses 1-6)

15 September 2024

 

As a jurist, it is vital to clarify any doubt that may exist in relation to the flagrant injustice represented by this criminal procedure filed against Edmundo Gonzalez Urrutia. To properly understand the illegality of the charges brought, it is essential to provide certain clarifications to those who are not familiar with Venezuelan criminal law. Just as Virgil's guidance was necessary to navigate the dark circles of hell in The Divine Comedy, those who face this judicial system must have a clear understanding of the legal framework that, like the infernal abysses, seems designed to confuse and trap those who seek justice.

The theory of crime, applied by Venezuelan criminal jurists, constitutes a key conceptual instrument to determine if a specific fact fits the legal definition of crime, that is, if the fact being judged constitutes the presupposition of the expected legal-criminal consequence. in the law (Bacigalupo, Enrique, 1996). This systematic approach, developed by theorists such as Hans Welzel (1962), Franz von Liszt (1881), Claus Roxin (2006) and Alberto Arteaga Sánchez, is based on three fundamental elements: typicity, illegality and culpability. Next, we will explore these concepts and their relevance in the context of Venezuelan criminal law, and then apply this theory to the analysis of the alleged criminal acts attributed to Edmundo Gonzalez Urrutia.

 

Typicality (Typical Fact)

Typicality refers to the coincidence between the conduct carried out and the description of a crime contained in the criminal code. Eugenio Raúl Zaffaroni, in his work Criminal Law Manual (1980), defines typicality as the subsumption of conduct in the criminal type, that is, that conduct can only be considered criminal if it conforms to the "type" established by law. Thus, typicity guarantees the principle of legality: there is no crime or penalty without prior law.

 

Illegality (Unlegal Act)

Illegality implies that the typical conduct is contrary to the legal order. In the words of Hans Welzel (1962), an act is unlawful when it is not supported by any cause of justification, such as self-defense, a state of necessity or the fulfillment of a legal duty. This concept also appears in the work of Claus Roxin, Criminal Law, General Part (2006), which indicates that illegal behavior is that which, despite being typical, is not justified by any superior or socially accepted principle.

 

Guilt (Guilty Act)

Guilt analyzes whether the author of the typical and illegal act can be blamed for his conduct. For an act to be culpable, the perpetrator must have acted with intent (intention to commit the crime) or guilt (negligence or recklessness). As Welzel (1962) points out, the analysis of guilt includes the assessment of factors that can exempt or reduce responsibility, such as coercion, error or non-imputability.

In his work Criminal Law, General Part (2006), Claus Roxin describes that guilt is essential for a criminal sanction to be imposed, and without it there can be no punishment. For example, if a person commits a crime under duress, he or she may not be considered guilty because he or she did not act freely. Likewise, Eugenio Raúl Zaffaroni in Criminal Law Manual (1980) clarifies that guilt is a judgment of blame: someone can only be blamed for an act if they had the possibility of acting differently.

 

Adaptation of the General Theory of Crime to the Venezuelan Context:

Arteaga Sánchez has worked on adapting the classic principles of crime theory to the particularities of the Venezuelan legal system. Its approach seeks to harmonize the ideas developed by European theorists with the needs and characteristics of criminal law in Venezuela.

His work highlights the importance of protecting legal assets, goods that can be both individual (such as life, liberty, property) and collective (such as public order or social peace), as the basis of typicality. Arteaga Sánchez has delved into how criminal law should focus on the effective protection of these assets, adjusting theoretical concepts to the needs of society. That is to say, all criminal regulations must justify their existence under the premise that they seek to protect a legal good; if the conduct that is sought to be regulated does not negatively impact a legal good, its prohibition is not justified and even less so that said conduct is punishable.

That is to say...

The theory of crime, developed by authors such as Hans Welzel, Franz von Liszt, Claus Roxin, Eugenio Raúl Zaffaroni and Alberto Arteaga Sánchez, structures the analysis of crime into three key elements: typicity, illegality and culpability. These elements allow us to guarantee that criminal law is applied fairly and precisely, ensuring that only conduct that damages protected legal rights, that is not justified and that can be blamed on its author, is considered crimes and it is this theory that I will apply. for the analysis of the case of Edmundo Gonzalez Urrutia.

It is also important to emphasize what is contained in the first paragraph of article 65 of the Venezuelan Penal Code (CPV): namely,

 

Article 65.- It is not punishable:

1.- He who acts in fulfillment of a duty or in the legitimate exercise of a right, authority, office or position, without crossing legal limits.

 

Analysis of the alleged criminal acts that they intend to accuse Edmundo González Urrutia of:

This Monday, September 2, 2024, a Venezuelan judge with jurisdiction over terrorism ordered the capture of Edmundo Gonzalez Urrutia, for the following charges:

• Usurpation of functions, article: 213 CPV
• Forging of Public Documents, article: 319 CPV
• Instigation of Disobedience of Laws, article: 283 CPV
• Conspiracy, article: 132 CPV
• Sabotage to System Damage, article 7 of the Computer Crimes Law.
• Association, article 37 of the Organic Law Against Organized Crime and Financing of Terrorism.

Below is a detailed analysis of each position:

 

Usurpation of functions

Article 214.- Anyone who improperly assumes or exercises civil or military public functions, will be punished with imprisonment of two to six months, and the same penalty will be incurred by any public official who continues to exercise them after having been legally replaced or the position has been eliminated. It may be arranged that, at the expense of the convicted person, the sentence is published in extract, in a newspaper in the place indicated by the Judge.

 

Is typical, illegal and guilty the conduct he exercised Edmundo Gonzalez Urrutia?

 

No, it is not typical behavior, given that the candidate has not held a civil or military public function at any time, so there is no particular action or omission carried out by him. Edmundo Gonzalez Urrutia that coincides with this regulation. The only conduct that the aforementioned has exercised is to exercise his right to passive suffrage and make statements as an electoral candidate, where he has expressed having evidence of being the true winner of the electoral contest on July 28, 2024, publicly presenting his evidence of the victory, the electoral records that his team of witnesses have right to collect and that are designed with the purpose of providing candidates with the guarantee of demonstrating their victory in the face of potential fraud or technical failure at the time of totaling the votes.

 

Remembering that the three elements must concur, since it is not a typical fact, it cannot be illegal (contrary to law) and much less guilty.

 

Forging of Public Documents

Article 320.- Any individual who, not being a public official, forges, in whole or in part, a document to give it the appearance of a public instrument, or alters a true one of this type, He will be punished with imprisonment from eighteen months to five years. This penalty may not be less than thirty months, if the act is one that deserves faith until challenged or deemed false, according to the provisions of the Law. If the falsehood has been committed in the copy of any public act, assuming the original , whether an authentic copy is altered, or, in short, a copy contrary to the truth is issued, the prison term will be from six to thirty months. If the act is one that is authentic by virtue of the law, as stated above, the prison term may not be less than eighteen months.

 

Is typical, illegal and guilty the conduct he exercised Edmundo Gonzalez Urrutia?

 

No, the candidate's conduct is not subsumable in the conduct described in the article. Edmundo Gonzalez Urrutia, as a candidate, has the right to request copies of the electoral records issued by the machines at each polling station, through its body of witnesses. These minutes are public documents in themselves, the result of the totalization and scrutiny of each polling station. Furthermore, in this particular case, as has been explained repeatedly and being a public, notorious and communicational fact, it has been other people (his team of witnesses) who have scanned and digitized said public documents, so that all Venezuelans can verify and corroborate the results of your polling station. We reiterate, therefore, that criminal responsibility is personal and in this case it was a group of people who digitized the minutes. Therefore, Edmundo Gonzalez Urrutia by participating directly in the collection of minutes, in the act of creation and maintenance of the website resultsconvzla, nor in the scanning and uploading of said minutes could not be considered responsible in the event that there was a fraudulent record among the thousands of minutes that were published. Additionally, regarding the point of the allegedly fraudulent minutes, the Public Ministry has not publicly demonstrated that any of the minutes digitized by the team of witnesses are fraudulent, and all the verifications made subsequently by international observers and civil society support the originality. and veracity of the minutes published by the witness team on the website.

 

Remembering that the three elements must concur, since it is not a typical fact, it cannot be illegal (contrary to law) and much less guilty.

 

Instigation of Disobedience of Laws

Article 286.- Whoever publicly encourages disobedience of the Laws or hatred of some inhabitants against others or makes an apology for an act that the law foresees as a crime, in such a way that public tranquility is endangered, will be punished with imprisonment of forty-five days to six months.

 

Is typical, illegal and guilty the conduct exercised by Edmundo González Urrutia?

 

No, the conduct carried out by the winning candidate is one of unrestricted respect for the Venezuelan legal system, and in all his speeches that have been televised or published on social networks, it can be verified. Such a circumstance is a public, well-known and communicational fact.

Now, in the hypothetical case in which the right to peaceful demonstration or to call for it is considered a crime, we will then be in another scenario. For now, neither the Penal Code nor the Constitution protects the right to peaceful demonstration or the right to express oneself freely as criminal conduct, and since it is not criminalized, it cannot be considered punishable conduct.

Additionally, the July 29 demonstrations were not called by any political actor, therefore, any criminal activity that took place in that wave of spontaneous protests is the exclusive responsibility of those who directly committed the criminal activity (such as the destruction of statues). Every subsequent demonstration that was called by the unitary platform has been peaceful, with the security forces being the ones who have initiated unjustified acts of repression against protesters on those occasions.

Remembering that the three elements must concur, since it is not a typical fact, it cannot be illegal (contrary to law) and much less guilty.

 

Conspiracy

Article 132.- Anyone who, inside or outside the national territory, conspires to destroy the republican political form that the Nation has taken on. He will be punished with imprisonment from eight to sixteen years. The same penalty will be incurred by any Venezuelan who requests foreign intervention in the affairs of the internal politics of Venezuela, or requests their assistance to disrupt the peace of the Republic or who, before its officials, or through publications made in the foreign press, incites the civil war in the Republic or defame its President or outrage the diplomatic Representative or consular officials of Venezuela, due to their functions, in the country where the act was committed.

 

Is typical, illegal and guilty the conduct he exercised Edmundo Gonzalez Urrutia?

 

No, it is not typical, given that at no time has the aforementioned citizen demonstrated actions aimed at “destruction of the republican political form”, quite the opposite. What Edmundo González has done is precisely to defend the republican political form of the State, to promote unrestricted respect for popular sovereignty through the defense of the votes exercised by Venezuelans on July 28.

Furthermore, according to what is interpreted by Carlos Ayala, every citizen has the right to a Constitutional State of Law (Ayala Corao, 2012). What more reflection of this than defending compliance with the legal system itself? That has been the conduct exercised by Edmundo Gonzalez Urrutia.

Remembering that the three elements must concur, since it is not a typical fact, it cannot be illegal (contrary to law) and much less guilty.

 

Sabotage to System Damage (Special Law against Computer Crimes)

Article 7.TAnyone who intentionally destroys, damages, modifies or carries out any act that alters the operation or disables a system that uses information technologies or any of the components that make it up., will be punished with imprisonment of four to eight years and a fine of four hundred to eight hundred tax units. Anyone who destroys, damages, modifies or renders unusable the data or information contained in any system that uses information technologies or any of its components will incur the same penalty. The penalty will be five to ten years in prison and a fine of five hundred to one thousand tax units, if the effects indicated in this article are carried out through the intentional creation, introduction or transmission, by any means, of a virus or similar program.

 

Is typical, illegal and guilty the conduct he exercised Edmund Gonzalez Urrutia?

 

Obviously not. The aforementioned citizen has not destroyed, modified or carried out any act that alters the operation or disables any information technology system. Let us remember that the Venezuelan State itself accused a hacker with an IP address from North Macedonia of the alleged attack carried out on July 28. Edmundo Gonzalez Urrutia, diplomat, 75 years old, who has not demonstrated any knowledge or expertise in programming or cybersecurity, was in Venezuela on election day (July 28), so, even if the cyberattack had been real (something which has not yet been proven to date), Edmundo Gonzalez Urrutia couldn't be the perpetrator.

Given that the arrest warrant does not specify the specific cyberattack to which it refers, in the event that it is referring to one of the multiple proven DDoS (Distributed Denial of Service) attacks that have occurred against public administration pages since the day of electoral fraud, the group Anonymous has publicly assumed responsibility for these attacks, and it is these hackers who could be held responsible for such events. Let us remember once again that responsibility is personal and non-transferable.

Taking into account that the three elements must concur, since it is not a typical fact, it cannot be unlawful (contrary to law) and much less guilty.

 

Association, article 37 of the Organic Law Against Organized Crime and Financing of Terrorism.

Article 37. Who is part of an organized crime group, will be punished for the mere fact of association with imprisonment of six to ten years.

 

Is typical, illegal and guilty the conduct he exercised Edmundo Gonzalez Urrutia?

 

Obviously not. The aforementioned citizen is not part of any organized crime group. Is belonging to a political party or being supported by a political party platform a form of organized crime? Is any political organization in opposition to the regime considered an organized crime group? 

His accusation for this particular crime is what allowed a terrorism judge to hear the case, an absurdity and a complete violation of procedural guarantees and Venezuelan legislation.

Let us continue to remember that the three elements must concur, since it is not a typical fact, it cannot be illegal (contrary to law) and much less guilty.

 

Additional observations

The principle of the burden of proof is not explicitly established in the Preliminary Title of the Organic Code of Criminal Procedure, which states the fundamental principles of the Venezuelan criminal process. However, the obligation to prove is implicit in the way in which the law assigns to the Public Ministry the exclusive power to pursue and investigate crimes of public action. In the old inquisitorial system, this function fell to the investigating judge.

In the adversarial system, it is up to the holder of the criminal action, whether the Prosecutor's Office or a private prosecutor, to demonstrate the criminal responsibility of the accused. Consequently, the accused is not required to prove his innocence. The defense may even opt for total passivity, backed by the principle of presumption of innocence, given that the Constitution of the Republic and the law establish that it is the responsibility of the Public Prosecutor's Office to prove guilt and, in this way, disprove the presumption of innocence. .^[1]

In addition to this, in the acts published by the Attorney General of the Republic, he has only been listing the alleged criminal conduct and classifying them as completed crimes, violating the principle of presumption of innocence of Edmundo González Urrutia.

It should be noted that the own Criminal Cassation Chamber of the Supreme Court of Justice (file A21-167, ruling no. 0041, rapporteur Elsa Janeth Gómez Moreno, issued on February 23, 2022), has mentioned that when an arrest warrant is requested, it is not enough to present a general description of the facts. It is crucial to detail the causal connection between each accused and the incident, as well as the circumstances of time, manner and place in which the event occurred.. That is, the moment and the way in which it happened must be specified, since these elements are essential to determine the legal qualification, the levels of participation, the aggravating circumstances, the degrees of execution, the prescription of the criminal action and, in addition , the corresponding competence and jurisdiction.

Likewise, it is essential that the prosecutor explain how the conduct of each defendant is related to the evidence collected to demonstrate their connection to the case and justify a possible formal accusation. It is not enough to simply list the elements of conviction obtained during the investigation, since this does not meet the necessary substantiation as stipulated by the regulations. In this case, it was not done that way.^[2] and therefore the procedural guarantees of Edmundo Gonzalez Urrutia They are being flagrantly violated.

 

Conclusion to the Analysis of the Legality of the Criminal Procedure

When applying the theory of crime to the case of Edmundo Gonzalez Urrutia, it is clear that the charges against him lack legal basis. The detailed analyzes of the alleged crimes—from the usurpation of functions to the sabotage of systems and association with criminal organizations—demonstrate that the alleged acts do not meet the requirements of criminality, unlawfulness, and culpability. This situation evokes a descent into a Dantesque hell filled with unjust accusations and convictions in a twisted system. The absence of concrete evidence and the lack of compliance with due process have violated the procedural guarantees of Edmundo Gonzalez Urrutia. The principle of presumption of innocence, together with the duty of the Prosecutor's Office to present compelling evidence, highlights the irregularities in the accusation. Therefore, it is evident that the accusations are not only unfounded, but also violate the fundamental principles of criminal law and the rights of the accused.

 

To learn more about the political nature of the criminal investigation continue reading HERE.

To learn more about the partiality of the actors involved in the criminal investigation continue reading HERE.