TSJ: Plaintiffs of the Onapre instruction created a false expectation

There are four lawsuits against the so-called instructions from the National Budget Office (Onapre) that the Political-Administrative Chamber of the Supreme Court of Justice declared inadmissible, according to published rulings.

The plaintiffs are: 34 former officials of the Public Ministry, two university associations and six universities.

The four demands were consigned before the High Court of the country between June 2 and July 28 last. The magistrates responded to all four on August 11, in the same number of sentences written by magistrate Malaquías Gil.

All the plaintiffs requested the annulment of the “Instructions called ‘Adjustment Process of the Public Administration Remuneration System, Collective Agreements, Special Tables and Strategic Companies’ dated 3.22.2022, issued by the National Budget Office (Onapre), attached to the Ministry of People’s Power of Economy, Finance and Foreign Trade”.

The plaintiffs argued that the salaries of active and retired workers suffered a decrease of approximately 40% since the second half of April 2022, when the Government began to apply the Onapre table mechanism to calculate salaries.

In the four sentences, the Chamber expresses its doubts regarding the authorship of the tables and instructions used to calculate the salary of workers and retirees of the Public Administration. “In the case at hand, as has been exposed, the ‘challenged act’ allegedly would have been issued by the National Budget Office (Onapre)”, say the magistrates in a paragraph. “Likewise, it is noted that authorship cannot be reliably and clearly attributed to the intended instruction,” they warn in another.

The Chamber also rejected the fact that the plaintiffs refer to the Onapre instructions as “an administrative act”, a nomenclature reserved for certain documents “issued by the bodies that make up the Administration, in the exercise of an administrative power other than the regulatory power, which produce effects of law, general or individual in the legal sphere of the administered”.

The magistrates even transcribed article 18 of the Organic Law of Administrative Procedures where the eight elements contained in an ‘administrative act’ are listed, including the name of the agency that issues the act, the seal of the office and a succinct expression of the facts, of the reasons that have been alleged and of the pertinent legal foundations.

Based on this, the magistrates determined that this “alleged instruction” or “alleged document” does not constitute an administrative act and thus “this Chamber warns that we are in the presence of what is known in the doctrine and jurisprudence as the ‘non-existent act ‘, because any document that is indicated as such cannot be an administrative act, without it having been issued in accordance with the Law”.

The magistrates made it clear that the plaintiffs did not file before the Chamber, “the original or a copy of the hypothetical ‘administrative act’ whose content is challenged”. At that point they warn that the plaintiffs did not comply with an “essential procedural burden that cannot be supplied by this Chamber.” In this regard, a magistrate commented: “the one who accuses has the obligation to prove.”

In light of this reasoning, the Chamber accused the plaintiffs’ lawyers of acting recklessly when filing the lawsuit. “Recklessness is nothing more than an action, in this case procedural action, that goes beyond what is normal, reasonable and due…It is the conduct of someone who knows or should know that he or she lacks reason and/or lacks reasons to infer or resist the claim and, nevertheless, it does so, abusing the jurisdiction”, reasoned the Chamber.

But that recklessness that the Chamber attributes to the plaintiffs, has a purpose, which is “to destabilize social peace… by creating a false expectation.” To get to that point, the plaintiffs allegedly used the media (digital and radio) and installed in recent months “a communication matrix… pretending to impute Onapre and, finally, the Venezuelan State, an act whose existence has not been proven. and, therefore, much less its authorship”.

And the Chamber emphasizes that despite the “non-existence” of that administrative act, “it has been used to generate discomfort in certain sectors of the community, create social conflict and violate cardinal values and principles provided for in our constitutional order.” Consequently, the Chamber warned that “it is facing a disturbance and abusive exercise of a judicial action”, for which it fined the plaintiffs “fifty times the official exchange rate of the currency with the highest value, established by the Bank Central of Venezuela, estimated to the present date”. Experts consulted estimate the fine at $600.

Teófilo Villarroel: Adjusted to right

The lawyer Teófilo Leonardo Villarroel, observes “a lack of judicial technique in the demands that were filed and that is why the Chamber declared that act non-existent, whose annulment they requested because the plaintiffs did not consign it.”

Villarroel wondered “to what extent” the theory of the “non-existent act” invoked by the Chamber to declare the four demands inadmissible, resolved the problem raised with the salaries of Public Administration workers. “We cannot start from whether it exists or does not exist; Obviously, if it is not in the file, it will not exist… I think they should have known (in the Chamber) if it existed or not, “said the lawyer, who is an expert in procedural law and worked as a rapporteur for the Political-Administrative Chamber.

In this sense, Villarroel believes that the Chamber should also have wondered why there is this “communicational matrix” that blames Onapre and ultimately the State for the violation of workers’ rights.

Despite the fact that Villarroel classifies the four judgments of the Chamber as “adjusted to law”, he considers that the magistrates should have analyzed the Onapre instruction as “a material action of the Public Administration”, regardless of whether or not it is an administrative act. “That’s another debate,” he stressed. Hence, those who requested the annulment of that instruction mistaken the judicial mechanism used to go to the TSJ, in Villarroel’s opinion, who considers that the plaintiffs should have filed “a claim by means of fact, which are against the material actions of the Public Administration ” .

He referred that the magistrates had other mechanisms to bring to the file the Onapre document which the plaintiffs describe as damaging the right to a decent salary, among others.

The former rapporteur of the TSJ explained that the requirements established in the Organic Law of the Contentious Administrative Jurisdiction for a claim to be admitted “complicate a little more how the plaintiff is going to prepare his claim.” Villarroel clarified that this does not mean that there is a violation of the right that citizens have to demand justice before the different bodies.

Finally, Villarroel commented that the fine imposed by the Chamber on the plaintiffs represents the corrective way to prevent lawyers from “overwhelming the judicial apparatus without being sure of what they are going to file.”

The plaintiffs:

First demand. Filed: June 2, 2022. (Principals, universities and unions). Sentence: 00445

Cecilia García-Arocha Márquez (Central University of Venezuela)
Jessy Divo de Romero (University of Carabobo)
Milena Bravo de Romero (University of the East)
Rita Elena Añez (Antonio José de Sucre National Experimental Polytechnic University (Unexpo)
Lawyers: Melvin Ortega, Zully Rojas, María Zenaida Pernía and Aracelis Garfido Medina / Libertador Experimental Pedagogical University (UPEL)
Lawyers: Zuleima del Carmen Brito Hernández and Darío Ventura García Díaz
Hernán Antonio Barrios (President of the Workers’ Savings Bank of the University of Carabobo)
Pedro Ulacio, (President of the Union of Workers of the University of Carabobo)
Lawyer: Maria Fernanda Molina