Venezuela's Legal System
LEGAL SYSTEM IN GENERAL
Basic organization of the Venezuela State
State Organs
General Structure
Head of State and Government.
Legislative body
Authorities of the Federated States and territorial authorities
The Judiciary
The Constitutional judiciary
Organization of law courts
Administrative judiciary
Prosecution
Sources of Law
The Constitution
Legislation
Other sources
Publication of Laws
Brief Historical Evolution of private law
LEGAL SYSTEM IN GENERAL
Basic organization of the Venezuela State
Venezuela is designated constitutionally as a republic that "is
forever and irrevocably free and independent of any domination
or protection by a foreign power" (Constitution of 23 Jan.
1961, art. 1), a formula retained in all constitutional texts
since independence from Spain was gained at the beginning of the
nineteenth century (1811).
In addition, the Republic is a federal state (Const. art.
2), but in a peculiar manner, as a result of the transformation
of the country divided in autonomous regions along the lines of
the federation established since 1811 and consolidated in 1864.
This federation functioned politically until the beginning of
this century, developed a growing tendency towards centralization
during de last 90 years, and has begun to be descentralized since
the enactement of the Organic Law for Descentralization
and Transfer of Powers (G.O. Nº 4153 Extra.
of Dec. 28, 1989), and the Law of the establishment of the
direct election of the Federated States governors in 1989
(Nº G.O. Nº 4086 Extra. of April 14, 1989).
As a consequence of the federal form of the State and for purposes
of political organization the country is divided into 22 Federated
States (Amazonas, Anzoátegui, Apure, Aragua, Barinas, Bolivar,
Carabobo, Cojedes, Delta Amacuro, Falcón, Guárico,
Lara, Mérida, Miranda, Monagas, Nueva Esparta, Portuguesa,
Sucre, Táchira, Trujillo, Yaracuy and Zulia); one Federal
District (Organic Law of 1986, G.O. Nº 3944
Extra. of Dec. 30, 1986) in which Caracas, the capital, is situated;
and Federal Dependencies made up of several islands in the Caribbean
(Organic Law 1938, G.O. Nº 19624 of July 20,
1938).
The Federated States are divided into Municipios. In 1996
there are 330 Municipios. The States are competent to create,
suppress and organize them (Const. art. 17, Nº 2), in accordance
with the Organic Law of Municipal Regime of 1989 (G.O.
Nº 4409 Extra. of June 15, 1989).
According to the Constitution, the Federated States are autonomous
and equal as political entities, even though they are obliged
to maintain the integrity of the nation and to comply with and
enforce compliance of the national Constitution and the laws of
the Republic (Const. art. 16).
The federal constitutional system grants their own powers to the
different territorial entities (Republic, Federated States and
Municipios or local governments) and any interference and
usurpation of functions between them is unconstitutional.
The Constitution provides that Municipalities are the primary
and autonomous political units within the national organization
(Const. art. 25), that are administered in accordance with the
principle of local selfgovernment; the creation of intermunicipal
associations for services is permitted, and has taken place for
some services in the Metropolitan Area of Caracas.
State Organs
General Structure
In accordance with the federal system, the Constitution makes
a distinction between organs proper to national and federal power,
states power and municipal power. On a national level, public
functions are distributed among a national legislative power,
a national executive power and a judiciary and are attributed
respectively to Congress, to the President of the Republic and
other executive organs, and to the Supreme Court of Justice and
other courts of justice. A distribution of functions with features
of separation of powers is therefore provided even though the
Constitution expressly demands collaboration between them for
the achievement of thc aims of the state (art. 118) .
Head of State and Government.
The President of the Republic is elected every five years by universal,
direct and secret voting by means of a relative majority (Const.
art. 183 and Organic Law on Suffrage of 1995, G.O. Nº
4918 Extra. June 8, 1995). He is at the same time Head of State
and Head of the national executive power (Government) (Const.
art. 181).
In this latter respect he is the supreme authority in the government
and administration of the state and exercises his powers in the
Council of Ministers or through the ministers whom he appoints
and removes.
The following are among his principal powers: He directs the Republic's
international relations and enters into and ratifies international
treaties, pacts and agreements; he declares the state of emergency,
takes the necessary measures for the defence of the Republic,
the integrity of the territory and its sovereignty in the case
of an international emergency; he summons Congress to extraordinary
sessions; he issues regulations for the execution of laws; and
he administers the National Treasury, negotiates national loans,
enters into contracts in the national interest, appoints and dismisses
civil servants, grants pardons, etc. (art. 190).
In all cases, the President of the Republic is subject to the
Constitution and the laws in the exercise of his powers. Exceptionally,
he may enact decrees having the force of law providing extraordinary
measures in economic and financial matters, if he has been authorized
by special law (art. 190 Nº 8), or when he suspends or restricts
constitutional guarantees of rights and liberties (art. 190, Nº
6).
The ministers (Organic Law of Central Public Administration
of 1995, G.O. Nº 5025 Extra. of Dec. 20 1995) are
the direct organs of the President of the Republic in the government
and administration of the national state (Const. art. 193). They
are responsible for their acts, even when they act under express
orders from the President of the Republic, and they must present
Congress with a yearly detailed report on the management of their
department (art. 196 and 197). In his first year in office he
must present Congress the general guide-lines of the national
economic and social development Plan (Const. Amendment, Nº
2, 1983)
Ministers have a right to speak in the legislative Chambers and
in their commissions, and they are ob1iged to appear before them
when called up for information or to answer questions (art. 199).
They are subject to a vote of censure by the Chamber of Deputies
and the latter may by qualified vote decide to remove the minister
(art. 153, Nº 2).
Legislative body
National legislative power is exercised by Congress, made up of
two Chambers: the Senate and the Chamber of Deputies (Const. art.
138). The members of both Chambers are also elected every five
years at the same time as the President, by universal, direct
and secret vote, there being a mixed electoral system that combines
proportional representation through block lists (art. 113, 148
and 151) and uninominal circuits.
Basically, Congress is empowered to legislate on matters of national
competence and to regulate the operation of the different branches
of national power as well as to exercise control over public administration
(art. 139 and 160). Each one of the legislative Chambers also
has exclusive functions: for instance, the Senate is empowered
to authorize the national executive to carry out different administrative
acts, and the Chamber of Deputies is empowered to open the discussion
on the Budget Law (art. 150 and 153).
Authorities of the Federated States and territorial authorities
Authorities in the Federated States too are distributed according
to the functions they carry out. In each State executive power
is exercised by a Governor elected every three years by universal
direct and secret voting, according to the Governors Elections
Law of 1989 (G.O. Nº 4086 Extra. April 16, 1989).
The Governors acts in the dual character of head of the state
executive and agent of the national executive within each state
(Const. art. 21).
State legislative power is exercised by a Legislative Assemb1y,
whose members are also elected every three years by universal,
direct and secret vote, there also being a mixted electoral system
of proportional representation and uninominal circuits (art. 19).
The States do not have their own judiciary, as the latter was
nationalized as from 1945 and its administration is in the hands
of the national power only.
On the municipal level, in each Municipio, the government
and administration of local interests are in hand of a Mayor which
is elected every three years; and the legislation of local interests
is exercised by a Municipal Council. The members of the Council
vary in a number between 5 and 17 according to the population
of the local entity. They are elected every three years by universal,
direct and secret vote, also by a mixed electoral system that
combines proportional representation through block lists and uninominal
circuits.
The Judiciary
The Constitutional judiciary
The Venezuelan Constitution is of the socalled rigid type and
therefore it is the supreme source of law of the state, and all
acts by public powers and private persons are subordinated to
it. The principle of constitutional supremacy and the principle
of legality, bases of the state governed by the rule of law, are
guaranteed by ample mechanisms for judicial review of the constitutionality
of laws and other state acts.
Control over the constitutionality of laws is exercised by two
methods. On the one hand, by a decentralized or diffuse control
which empowers, any judge of whatever category to declare a law
he consider unconstitutional, inapplicab1e in a concrete case,
with inter partes effects (CCProc. art. 20). On the other
hand, the Constitution itself regulates the centralized system
of judicial review of constitutionality by granting the Supreme
Court of Justice competence to annul unconstitutional laws, with
effects erga omnes and ex nunc (Const. art. 215;
Organic Law of the Supreme Court of Justice of 1976, G.O.
Nº 1893 Extra. of July 30, 1976). The latter control,
which is initiated by a popular action with no special requirements
as to standing or time, may also be exercised in relation to federated
states laws, municipal ordinances, regulations issued by the President
of the Republic, and government acts (art. 215, Nº 3 and
4).
Organization of law courts
The administration of justice is reserved to the national power
and it is exercised through the courts of the Republic. They are
regulated by the Organic Law on the Judiciary of 1987 (G.O.
Nº 3995 Extra. de August 13, 1987) and governed by the Council
of the Judicature, an autonomous constitutional organ regulated
by its Organic Law of 1988 (G.O. Nº 34068 of
Oct. 10, 1988).
The Courts are divided into the following several jurisdictions,
the ordinare one: civil courts, commercial courts, criminal courts,
and the special ones: agrarian Courts (Organic Law, G.O.
Nº 3015 Extra. of Sept. 13, 1982) labor courts (Organic
Law on Labor Courts and Procedure of 1959, G.O. Nº
26.116, Nov. 19, 1959), juvenile courts (Minors Law of
1980, G.O. Nº 2710 Extra. of Dec. 30, 1980); military
courts (Code of Military Justice of 1967, G.O. Nº
1109 Extra. of June 5, 1967), and judicial review of administrative
action courts (Organic Law of the Supreme Court of Justice
of 1976 (G.O. Nº 1893 Extra. of July 30, 1976).
The courts in each of these special jurisdictions are placed in
hierarchical order and are competent according to the amount involved
or the importance of the case. They are divided as follows: Township
or Parish Courts (Juzgado de Municipio o Parroquia), District
or Department Courts (Juzgado de Distrito o Departamento),
Courts of the First Instance (Juzgado de Primera Instancia),
and Higher Courts (Cortes Superiores).
In general, court decisions may be appealed to a higher court,
but a case cannot be heard by more than two instances. Only decisions
handed down in the second instance by Higher Courts can be appealed
for cassation to the Supreme Court of Justice in accordance with
the Code of Civil Procedure of 1986 (G.O. Nº
3886 Extra. of Sept. 15, 1986) and the Code of Criminal Procedure
of 1962 (G.O. Nº 748 Extra. of February 3, 1962).
The Supreme Court of Justice, integrated by 15 Justices appointed
by Congress (Const. art. 214), exercises its competence on judicial
review of constitutionality in Plenary Sessions. Other cases are
decided by the three divisions: the political administrative;
civil, commercial and labor cassation; and penal cassation. The
court is governed by the rules of the Organic Law of 1976
(G.O. Nº 1893 of July 30, 1976).
Basically, the PoliticalAdministrative Division is charged with
the exercise of judicial review of administrative action. The
two cassation divisions hear appeals for cassation in order to
control the legality of some judicial decisions. It may therefore
be said that control on constitutionality and legality is exercised
by the Supreme Court of Justice at all levels: constitutionality
of laws, legality of administrative acts and legality of court
decisions.
The appointment of judges is attributed to the Council of the
Judicature, an organization with a certain amount of practical
autonomy, charged with controlling the administration of the judiciary
(Const. art. 217). Its members are appointed by Congress and the
executive power in accordance with its Organic Law of 1988
(G.O. Nº 34068 of Oct. 7, 1988). Nevertheless, judges
are autonomous and independent of the other organs of public power
in the exercise of their functions (art. 205).
Administrative judiciary
The principle of subjecting the state to the rule of law implies
the submission of public administration to legality. This is guaranteed
by the existence of judicial review of administrative action courts
which are integrated in the judiciary. This special jurisdiction
is exercised by the Political Administrative Division of the Supreme
Court of Justice; the First Court on judicial review of administrative
action and 15 superior courst on judicial review of administrative
action, located in all the state territory. It is also exercised
by some specialized courts, like the tax courts (Organic Code
of Taxation of 1994, G.O. Nº 4727 Extra., of May
25, 1994) and the Court for the Administrative Career (Law
of Civil Service of 1970, G.O. Nº 1745 Extra.
of May 23, 1975).
All these courts are competent to "annul general or individual
administrative acts contrary to law, including abuse of power;
to give judgment for the payment of money and the reparation of
damage for which the administration is responsible; and to take
the necessary steps to reestab1ish subjective legal situations
damaged by administrative activity" (Const. art. 206 par.
2). A special Law regulating this jurisdiction has not yet been
enacted, and therefore its regulations are emboided transitorily
in the Organic Law of Supreme Court of 1976 (G.O. Nº
1893 Extra. of July 30, 1976), according to the principles and
rules formulated in the decisions of the Supreme Court of Justice.
Prosecution
The Public Prosecutor's Office is under the direction and responsibility
of the General Prosecutor of the Republic, appointed by the legislative
chambers (art. 219). Its function is to watch over the exact observance
of the Constitution and the laws (Const. art. 218). He is charged
with the following functions: to watch over respect for constitutional
rights and guarantees; to watch over speedy and correct procedure
in the administration of justice and to see that the laws are
applied correctly in the courts of the Republic in penal cases
and in those affecting public order and morality; to bring penal
action in cases in which a petition by the injured person is not
necessary to commence or continue proceedings, but the court may
proceed ex officio when the law so determines; to watch
over the correct performance of laws and the guarantee of human
rights in prisons and other detention centres; to bring the law
suits necessary to make effective the civil, penal, administrative
or disciplinary responsibility of public servants for violations
of their official duties (art. 220). These broad atributions,
regulated by the Organic Law on the Public Prosecutor's Office
of 1970 (G.O. Nº 1434 Extra. of Sept. 16, 1970), give
this organization powers, in addition to those of Public Prosecutor,
that are similar to those of European ombudsman.
Sources of Law
The Constitution
The Constitution of 23 Jan. 1961, which is the twentyfifth the
Republic has had since 1811, is the supreme source of law. It
is a text with 252 articles to which Amendments, Nº 1 and
Nº 2 were added on 11 May 1973 and on March 16, 1983 (G.O.
Nº 3251 Extra. of Sept. 12, 1983). Its contents are very
ample, meeting the requirements of a developing country such as
Venezuela, and it is an example of the constitutionalization of
administrative law, characteristic of this branch of law in the
contemporary world. In this connection special mention must be
made of the detailed regulation of economic and social rights
(art. 72 to 109) which make Venezuela a social and democratic
state governed by the rule of law.
Legislation
On the national level legislation is made up of Organic and ordinary
laws; the former occupy an intermediate position between ordinary
laws and the Constitution (Const. art. 163).
Laws that systematically assemble the rules on a specific subject
are called codes. The main codes comprising the basic legislation
of the country are the following: Civil Code (CC) of 1982
(G.O. Nº 2990 Extra. of July 26, 1982); Commercial
Code (Comm.C) of 1955 (G.O. Nº 475 Extra. of Dec.
21, 1955); Criminal Code (PC) of 1964 (G.O. Nº
915 Extra. of June 30, 1964); Code of Criminal Procedure
(CCrim.Proc.) of 1962 (G.O. Nº 748 Extra of Feb. 3,
1962); Code of Civil Procedure (CCProc.) of 1986 (G.O.
Nº 3886 Extra. of Sept. 15, 1986), Code of Military
Justice of 1967 (G.O. Nº 1109 Extra. of June 5, 1967),
and Organic Code of Taxation of 1994 (G.O.
Nº 4727 Extra. of May 25, 1994).
Due to the federal form of the state there are three types of
legal rules in Venezuela: national, state and municipal. Constitutionally,
the federated states are competent in all matters not attributed
to nacional power or local goverments municipalities (Const. art.
17, Nº 7). However, the centralizing tendency in the past
decades has been so strong that very little was left to the autonomous
competence of the states. On the contrary, almost all ordinary
laws and codes are enacted by the Congress of the Republic to
whom the Constitution reserved legislation over a series or specific
subjects, as well as over those that "by their kind or nature
pertain to it" (art. 136, Nº 25).
In 1989, was enacted the Organic Law on Descentralization and
transfer of powers (G.O. Nº 4153 Extra. Dec. 28,
1989) from the national to the Federated States lavel, in accordance
to which, a process of political decentralization has begun. According
to that law, not only some public services that where progressively
nationalized such as education, health, minors attention, had
been transfered to the Federated States administration, but the
following national matters have been transfered to the states
level: stamp tax, explotation of non metalic mineral and salt
mines; administration of roads and highways; consumption taxs
non reserved to the national level, and administration of public
comercial ports and airport (art. 11).
Other sources
The principle of written law prevails in Venezuela, therefore
custom is considered to be only an auxiliary or subsidiary source
of law. Court decisions are not a source of law. When there is
no written law, the Civil Code (art. 4) considers analogy
and the principles of law as formal sources of law.
Publication of Laws
National laws are published in the Gaceta Oficial de la República
de Venezuela (G.O.) (appearing since 1872) in accordance
with the Law on Official Publications of 1941 (G.O.
Nº 20546 of July 22, 1941). State laws are published
in Gacetas Oficiales of the said entities, and municipal
ordinances are published in the respective Gacetas Municipales.
Laws are cited by their titles and the date of promulgation, which
coincides with that of publication (Const. art. 174).
The most important official collections are the following: Leyes
y Decretos Reglamentarios de los Estados Unidos de Venezuela,
which collect all the texts of laws enacted from 1811 to the date
of publication (18 vol., 19421944); Recopilación de
Leyes y Decretos de Venezuela published in 1874 and 1964,
which contains all the legislation enacted from 1830 to 1951 (76
vol.); the Compilación Legislativa de Venezuela
contains (vol. I to III) legislation in force until 1949; starting
from vol. IV (1950 1951) it consists of Anuarios up to vol. IX
(1960 1961); and Public Treaties and International Agreements
of Venezuela published between 1924 and 1956 (9 vol.). The
best private publication of laws and decrees is Gaceta Oficial
of Ramírez y Garay, published since 1959.
Some Supreme Court decisions are published in the Gaceta Oficial
de la República and they are all published in the Memorias
de la Corte Federal y de Casación (18741949) and in Gaceta
Forense, first series (19491953) and second series (1953 to
date). Decisions of other courts are not normally published. Summaries
of the most important decisions have been collected and published
by the Ministry of Justice, Institute for Codification and Jurisprudence,
under the title Jurisprudencia de los Tribunales de la República
(since 1950, irregularly), and are published by private publications
(Jurisprudencia of Ramírez y Garay; Jurisprudencia
of Pierre Tapia, and Revista de Derecho Público,
Editorial Jurídica Venezolana).
Brief Historical Evolution of private law
Despite the declaration of independence from Spain made in 1810,
the fundamental rules of private law governing the Republic until
1863 were, according to the Law of 13 May 1825 of the Congress
of Colombia, those issued by the Spanish Monarchy for the American
Colonies before 1808 and followed in the territory of Gran Colombia,
i.e., the following: The Compilation of the Laws of the Indies
(La Recopilación de las Leyes de Indias), the New
Compilation of Castille (La Nueva Recopilación de Castilla),
and Las Siete Partidas.
In 1862, the first Civil Code was enacted, which was basically
inspired by the 1857 Chilean Civil Code, the work of the
Venezuelan Andrés Bello. This Code, however, was
only in force for a short time owing to civil wars which took
place in the country in those years. In 1867 a new Civil Code
inspired by the Spanish Civil Code enacted that year, was
put into force and was in force until 1873. In that year, a new
Civil Code was promulgated, modelled upon the Italian Civil
Code; it is an important milestone in the evolution of Venezuelan
law as it estab1ished, in conformity with the liberal-political
system of those times, the complete secularization of marriage
and the civil registry, and the system of succession in particular.
The Code underwent a series of reforms among which those of 1881
and 1922 should be mentioned. Finally, the Civil Code of
13 Aug. 1942, reformed in 1982, is a basic stage in the Venezuelan
legislative evolution, as it incorporates modern theories requiring
application in view of the country's development particularly
in the social field. The provisions in the Civil Code have
continually been amended or enlarged in certain areas of social
interest, such as, for instance, urban leases, regulated by the
Law on Leases of 1 Aug. 1960 and of rural leases, regulated by
the Land Reform Law of 5 Nov. 1960 (G.O. Nº
611 Extra. of March 19, 1960), which have considerably limited
the autonomy of the parties.
In the commercial field, the first Comm. C., dated 15 Feb.
1862, was replaced by the. one dated 29 Aug. of the same year.
Subsequently, on 20 Feb. 1873 a new Comm. C. was enacted,
having as its basic model the French Code, although other influences
may also be noted, such as those of the 1829 Spanish Comm.
C., the 1865 Italian Code and some German and English laws.
The 1873 Code was replaced by the one enacted on 8 April 1904,
which was also influenced by different sources of inspiration.
The French influence can be noted, particularly in matters of
maritime law and bankruptcy. The German influence is noticeable
with respect to the right of retention. Spanish and LatinAmerican,
specially Chilean, influence is noted in the rules on transport,
insurance and promissory notes. The 1882 Italian Code had a decisive
influence on this Code in the regulation of commercial acts, commercial
companies, cheques and arrears. In 1919, there was a reform of
the 1904 Code which amended the law on negotiable instruments
substantially, adopting the proposals of the 1912 Hague Project,
and it received further influences from the 1882 Italian Code.
Subsequentliy, the Code was subjected to some partial amendments
in 1938, 1942 and 1945, but most important were the last amendments
of 1955.
ARBITRATION: A Code of Civil Procedure, effective March 17,
1989, provides for the enforcement of arbitration clauses in
commercial contracts, as well as for the enforcement of arbitral
awards as final decisions of the court. Although still not
common, Venezuela has allowed dual jurisdiction or
extra-territorial arbitration of commercial disputes, and
international arbitration has been approved for technology
licensing contract disputes in the past.
The U.S. House of Representatives Internet Law Library Laws of other nations Venezuela
General Information
Venezuela - Consular Info Sheet
Venezuela Country Study Page from Library of Congress. A great source of information.
Living languages of Venezuela
So, you think that Spanish is the only language spoken in Venezuela? Well, check this out!
Importing and Exporting
EXPORT INCENTIVES: Ministry of Finance Resolution number 2603,
dated June 10, 1994, established a program which enables
exporters to receive a rebate on duties paid on imported inputs.
To obtain a rebate, exporters must submit to Venezuelan customs
information on the quantity of imported and national inputs and
production waste. Customs will then calculate the level of
rebate by means of a formula which takes into account the
exporter's production efficiency. The rebate, which will be
denominated in local currency, is expressed as a percentage of
the export FOB price converted at the official exchange rate on
the day of export. Maximum rebate percentages have been
established by subsector based on the United Nations Standard
Industrial Classification. Exporters will receive rebates in the
form of "Certificados de Reintegro Tributario" (CERTs),
instruments which are negotiable and transferable and can be used
to cancel duty payments. The recently enacted Wholesale and
Luxury Tax Law also allows for the rebate of the wholesale tax
paid on imports which are used for inputs for exported products.
A joint resolution of the Foreign and Finance Ministries,
published in the Official Gazette 34,735 on June 13, 1991, lists
those agricultural products for which an export bonus is
available. The program provides a credit against an exporter's
tax liability of one percent for certain agricultural items whose
national value added is from 30 to 98 percent. For products for
which value added is from 99 to 100 percent, exporters are
eligible for a credit of 10 percent of the free-on-board value.
"Maquila" operations in Venezuela are regulated by Decree 3175.
The Decree provides for temporary suspension of both customs
duties and customs service fees for goods imported solely for the
purpose of processing within the country. Venezuela also
operates three free-trade zones.
TradePort's online tutorial on importing and exporting.
Reducing the Risk of
Trade Disputes for Exporters
U.S. Harmonized Tarrif Schedule
Marketing
International Trade Association (U.S. Dept. of Commerce dedicated to helping U.S. businesses compete in the global marketplace.
Trade Venezuela A good source of information. Contains index on products, services, and business contacts.
