In the open penal provision in article 2, which enables us, by resolution, to include as prohibited substances those which may be developed by the pharmaceutical industry or the illicit drugs industry, this faculty was extended to the Ministry of Health and Social Welfare and the Ministry of Development to enable them to designate precursors, solvents, essential chemical products and other substances, whether they are used industrially or to manufacture medicines, as "controlled substances."

Article 3 draws a distinction between illicit and licit conduct. According to this provision, any end use for a substance other than that set out in this article is deemed to be illicit, with the result that the consumption of narcotic and psychotropic substances is illicit, but the treatment is governed by social interest safety measures. Its single paragraph establishes the illicit character of the diversion of chemical substances, solvents and precursors for the unauthorized manufacture of narcotic and psychotropic substances.

Article 12 provides that, if the licence has been cancelled or has not been granted, article 114 of the Organic Customs Law shall apply and the goods shall be handed over to the Ministry of Health and Social Welfare.

Article 33 empowers the Minister for Health and Social Welfare to authorize the Drugs and Cosmetics Division and the regional directors of the National Health System in each Federal Entity to apply administrative sanctions.

Article 38, relating to the intermediate perpetrator, lays down that the use of minors or mentally disabled individuals is also taken to include members of the native population belonging to clearly defined tribes located in areas far from population centres.

Article 42, concerning instigation, which was criticized for advocating a single and severe punishment of 14 years for all offences, now imposes lighter penalties in months, on the basis of the standard set in this regard in the draft Tamayo-Sosa Penal Code, in order be far-sighted and avoid future contradictions in the legal system. It includes administrative penalties involving fines and anyone who incites another to contravene it shall be liable to imprisonment for a term of between three and six months.

Article 43 introduces the LOSEP military offences and it is important to note that, in all instances, in the " in fine" section, when they are examined by a military tribunal, the procedure of the Code of Military Justice shall apply " with the items of evidence and the system of assessment established in this Law", thereby avoiding an omission that would have barred access to the evidence and advances made in criminal science, in respect of the collection of evidence relating to the nature and the dynamic of such offences, which put them at a disadvantage. The section on aggravating circumstances in article 43 includes churches of all denominations.

Article 45, relating to animals used for competitive purposes, has been extended to all animals and there is a one-year reduction in the penalty under article 44, which is imposed on anyone who persuades people engaging in sports to use drugs, with the penalty thus remaining two to four years. This avoids the objection that sports people used to be equated with animals.

The aim of article 48, which applies to a sentry who consumes drugs, is to remove possible discrimination, by not considering it to be an offence against the security of the national armed forces; for this purpose, on the basis of article 503 of the Code of Military Justice and for the purposes of the application of that article, others who are also on sentry duty are included, such as military police, those in charge of the telegraph or telephone service, or any other communications service, the reserve guard, orderlies, couriers and those carrying orders.

Article 49 extends the offence of water contamination to cover water for public use and articles for use in public catering, except that this offence shall fall within the competence of regular jurisdiction.

Article 51 establishes military jurisdiction for a professional soldier, regardless of rank or military status, who commits the common offences set out in the LOSEP, and corrects the interpretation that allowed for the soldier's remission to regular jurisdiction if civilians are involved in the commission of the common law offence, making it a military offence of improper conduct, since it relates to the principle of subordination, observance and discipline in the Armed Forces. It is envisaged that, in cases where professional soldiers act in conjunction with civilians or non-professional soldiers, all persons involved shall be judged by military tribunals, according to the procedure set out in the Code of Military Justice, supplying the means of proof and assessment of evidence set out in the LOSEP. This solves the problem of the natural judge.

It is important to note that, when this Chapter was created, a change was made in the Law governing the legal profession, which is a strictly administrative law and envisages administrative and disciplinary penalties, such as removal from office, official warning and suspension, which are imposed by an administrative body, the Council of the Judiciary. The Law contains, in article 44, a proviso by which there may be applied appropriate penal sanctions, in addition to removal from office, and the Organic Law on Narcotic and Psychotropic Substances is the one dealing with the penal aspect by establishing sanctions for officials who fail to comply with the provisions of this Chapter. Hence article 52 refers to the offence of denial of justice, which is envisaged in article 19 of the Code of Civil Procedure.

Article 53 lays down that it is an offence for the judge to delay the proceedings in order to prolong the period of detention of the accused or in order to ensure that the relevant penal proceeding lapses, that is to say, if there is intent, fraud or a definite will to misrepresent, which shall be proven if this provision is to be applied.

Article 56 establishes penal sanctions for irregular conduct to the detriment of the accused, as part of the corrupt practices of many officials, such as charging money to issue papers, to make transfers, to move the accused from the cells to the court and to alter reports. The penalty increases gradually, depending on how frequently the official repeats the offence.

As a result, these offences against the administration of justice, based on Chapter I of Title XI of Book 2 of the Offences Against the Administration of Justice of the Draft Penal Code, submitted to the Legislative Commission of the Congress of the Republic by Professor Jorge Sosa Chacín and Professor José Miguel Tamayo Tamayo, reflect the trend in all modern codes to maintain the course of justice, as well as honour and respect for those who administrate justice, with a view to building up a healthy, vigorous and honest Judiciary.

Article 66 was amended to remove the direct assignment of all confiscated assets to the Ministry of Health and Social Welfare. The aim of the 1984 Law was to make available to the Ministry the substances confiscated, which could then be used to manufacture medicines, as well as laboratory apparatus, equipment and instruments. This wording has been changed and a really important innovation introduced, with the aim of speeding up the allocation of the seized assets stemming from the " iter criminis" for drugs. It is laid down that, in the event of a final verdict of guilty, the assets shall be placed at the disposal of the Ministry of Finance, without auction, so that the Ministry may, in turn, allocate them to public or private bodies engaged in prevention, control, supervision, treatment, rehabilitation, social reintegration and law enforcement. The purpose of this provision is to ensure that the assets go directly to the State authorities concerned with the relevant activities and do not fall into the hands of private persons who fulfil the "highest bidder" requirements.

Another innovation in article 66 is that not only will the items used to commit offences referred to in this Law be seized, but also any property that is strongly suspected of stemming from the offences or the proceeds of the offences laid down in this Law. Finally, this article contains a provision that bars the judge trying the case from authorizing the use of the assets seized or recovered on service missions, since experience shows that there are judges who have allocated them for use contrary to the provisions of the Code of Criminal Procedure, the Penal Code and the Law governing Property recovered by the Police, contrary to the intention of the rules of procedure which, since they involve public order, are imperative and not discretionary, as stated by Manzini in his observation that "the scope for discretion available to the criminal judge in application of the Law may be exercised only when it is expressly and therefore exceptionally laid down in the law itself". This illegal practice of allocating the assets recovered or seized runs counter to the principle of defence since the assets are already unavailable to the parties for expert analyses and counter-analyses and induce greed on the part of the public authorities; this leads, among other things, to rivalry between the actors and law enforcers, minimizing the synergy of the enforcement system and stepping up chances of corruption within the ranks of the police (Kilian Zambrano). This article also reaffirms the principle whereby anyone acting as a legal depositary, not being a civil servant, shall be regarded as equivalent to one, for the purpose of responsibility for the care, custody and conservation of the assets.

The annulled article 69 of the LOSEP established drug-related financial activity, designed to show who benefits from that illegal trade, as well as the physical person or legal entity acting as intermediary or middleman, for the purpose of disguising or concealing assets presumed stemming from such activities, and also established the steps that could be taken by the criminal court judge, on his own account or at the behest of the Public Prosecutor's Office, for the purpose of securing such assets, in which connection the drafters of the 1984 Law envisaged this form of criminal conduct which, at that time, did not have the range of recourse that it has today. Hence, on the basis of experience which indicates that drug traffickers, in their efforts to gain total and absolute control of the vast financial power generated by the illicit transnational industry, create new forms and make use of new systems to try to legitimize the capital acquired at the different stages or in the different activities of drug trafficking, this provision has been amended and broadened in the new articles 71 and 72 in order to tailor it to the current situation.

The new article 73 authorizes telephone tapping, filming or voice recording, in such a way that it is in line with the Law governing the Protection of Privacy of Communications, promulgated on 16 December 1991, to protect the privacy, confidentiality, inviolability and secrecy of communications between individuals, but without hindering the necessary work of criminal investigation, and preventing arbitrary and clandestine activities. An infringement of the provision shall be punished by a term of imprisonment between three and five years.

The new article 74 authorizes monitored delivery, as distinct from the controlled delivery of drugs, which is expressly prohibited because, even though it is an expeditious procedure for catching traffickers in the act, in our criminal law system this ingenious police practice is a flagrant violation of the rule of law, since it implies the commission by the police officer, of the offence of instigation to commit an offence, simulation of a punishable act, drug trafficking and corruption of public officials, when they receive emoluments from foreign police forces and because they use some of the confiscated drugs for such purposes, thereby infringing their responsibility to keep the seized substances intact for the purpose of destruction. There is a penalty of imprisonment of between four and six years for anyone who fails to comply with the provisions of this article, without prejudice to any administrative, civil or criminal liability that may be incurred. It is thus possible to uphold the view that the prosecution and punishment of an offender may never justify jeopardizing the rule of law of a nation, its sovereignty and its self-determination, since those principles also apply when the State is sovereign in establishing the procedures which shall prevail for citizens in legal and jurisdictional matters and in exercising the " ius puniendi". These procedures shall always be subject to prior authorization by a criminal court judge, with the consent of the Public Prosecutor's Office, which is an essential prerequisite if this information or delivery is to be valid.

In article 78, the term "social reintegration" (" reinsercion social") is replaced by "social rehabilitation" (" reincorporacion social"), which goes beyond the concept of a "cured" individual, such as a person freed from drug consumption, and aims at obtaining a socially active individual.

The single paragraph of the amended article 85 envisages fines for the parents, representatives or family of the consumer who fails to accept the guidance and treatment indicated by the specialists.

This new Chapter represented a transfer of the provisions on consumption that used to be mixed in with the provisions relating to offences, thus keeping them separate and in line with the subject of consumption and the safety measures. Two new articles were incorporated in this way. They were based on the Law governing the Metropolitan Transport Systems, promulgated in the Official Gazette No. 3.155 of 29 April 1983. Articles 22 and 26 of that Law establish employment and penal provisions for workers who are under the influence of drugs in the exercise of their functions, by which they may be dismissed from their jobs or subject to penal sanctions if they risk the safety of passengers or when, as a result, there is a disaster or accident. This corrects an omission in the 1984 Law, since the Law governing the Metropolitan Transport Systems was omitted from the systematic survey of relevant laws.

The two new articles (articles 89 and 90) seem to create a conflict with article 367 of the Organic Labour Law that prohibits members of aircraft crews from consuming alcohol or using drugs on or off duty. It is useful to point out in this connection that the Organic Labour Law established the prohibition but did not expressly envisage any penalty for a worker who fails to comply, and obliges reference to be made to serious negligence or dismissal, as indicated in article 102 of the Law in question, with the ensuing problem of whether the negligence relates to grounds A, D, E, G or I; this is settled in the single paragraph of article 89 of the LOSEP, which absolutely prohibits workers from exercising their functions under the influence of medicines that may contain narcotic or psychotropic substances, or other substances that might interfere with their physical or mental capabilities, including medicines prescribed by a doctor, thus complying with the provisions of the International Civil Aviation Convention, signed by Venezuela in Chicago in 1944, and the subsequent conventions. The LOSEP thus complements the Organic Label Law when it specifically indicates the penalty and requires the worker to comply with his or her obligations, as set out in the contract of employment, when the worker is under the influence of such medicines, issued on medical prescription. The apparent conflict is resolved by application of the LOSEP provision, since it is organic and specific on this subject and because it embodies an express provision that removes the ambiguity of the Organic Labour Law.

Article 101 establishes that the State shall carry out a toxicological examination of all State officials, without exception. There is now a single paragraph that sets out the obligation for enterprises to devote a percentage of their net annual revenue to programmes for the integral social prevention of drug trafficking and consumption.

Article 102 establishes coordination, by the National Commission on Drug Abuse, and other changes, so as to expand integral social prevention, by making the Ministry of Education responsible for it at all levels of education.

Article 104 has been amended to specify the responsibility of the Ministry of Transport and Communications, since experience has shown that wrong publicity and propaganda play a considerable role in debasing, falsifying and undermining our values and, despite the fact there is a standard that penalizes the forms used by various communication media, the latter always find ways of evading responsibility, for which reason the concept of independent producers has been included. There is a fine equivalent to a number of days' urban minimum wage for legal entities and it is clearly indicated that failure to comply with this provision amounts to an incitement to consume and an instigation to trafficking. Another new feature is that administrative proceedings may be set in motion on the initiative of the Ministry of Transport and Communications or at the request of the National Commission on Drug Abuse.

Article 105 establishes a fine equivalent to a number of days' urban minimum wage for anyone who infringes the ban on publication of the names and photographs of the persons involved in special proceedings for illicit consumption.

Article 107 establishes the responsibility, alongside the National Executive, of the offices of the regional governments to set up guidance and rehabilitation centres, under the sponsorship of the Ministry of Health and Social Welfare.

The 1984 LOSEP laid down the establishment of special prevention centres, a requirement that the National Executive was unable to fulfil. Furthermore, in the capital of the Republic there is no special prevention centre where a person apprehended in flagrante or quasi flagrante in the consumption of drugs may be "detained". Such persons are taken to judicial lock-ups or prisons and are kept in conditions of deplorable overcrowding, in which they suffer violation, injury and aggression and contract diseases or worse, and come into contact with real criminals. It is therefore necessary for the person to be "remanded", not imprisoned, in a non-penitentiary-type special prevention centre.

In Article 112, so that the alleged consumer may spend the least possible time on remand, a 24-hour period is established for the Criminal Investigation Police or the National Guard to arrange for a toxicological analysis of urine, blood and other body fluids taken from the alleged consumer and, once the analysis has been made, the individual shall be provisionally released, on condition that he or she reports, on the following day, to the arresting police agency, according to the notice issued on release. The investigation may not exceed eight days from the arrest of the alleged consumer; during this time the relevant file shall be sent to the court.

Article 113 lays down that, within eight days of receiving the file, the judge shall decide whether to ratify the measure granting parole if the toxicological and biochemical analysis of the substances and other elements attest that the individual is a consumer or whether to revoke it because the individual is not a consumer (possession, distribution, etc.) in order to begin the criminal proceedings. An individual who is a consumer will be ordered to undergo the analyses referred to in article 114, which are of a medical, psychiatric, psychological and forensic nature, and, if necessary, a new toxicological analysis. This analysis may be postponed to a later date if the individual has already been granted parole. It is currently impossible to carry out all these analyses since there are not enough physicians, and none in the interior of the country; this makes the article a dead letter, for which reason it is envisaged that, in areas that have no physicians, the judge may appoint doctors in private practice as recognized experts, subject to article 145 of the Code of Criminal Procedure. He may also appoint them whenever he thinks fit (for instance, if there are not sufficient physicians).

The aim of these amendments is to ensure that the consumer does not spend an undue period on remand in conditions that are not fitting for someone who is not a criminal. One criticism of these innovations might be that, once the individual is released, he may ignore the proceedings and disappear, but it should be noted that, currently, almost half of those granted parole disappear at the beginning of their period of freedom or discontinue out-patient treatment, and the new wording creates no more of a negative impact than is now the case as regards fulfilment of the requirements; the negative effect may diminish with the provision of different treatment that is not degrading or does not violate human rights. This is another matter to be weighed by the lawmakers.

In conjunction with the safety measures applied, article 116 lays down suspension of the licence to operate a vehicle, vessel or aircraft, as applicable, suspension of the licence to bear arms and suspension of the passport or its equivalent. The judge may revoke the decision to suspend the passport if the consumer can reliably demonstrate that he will be treated abroad and he shall submit medical reports, on conclusion of the treatment, so that the other measures may be revoked.

Article 118 lays down that a person aged under 18 years shall, during the proceedings, be granted probation or be placed with a family, as set out in the Law to Protect Minors, for the duration of the treatment. In no case may an under-age individual who may not have been involved in activities punishable under criminal laws or police ordinances be detained with under-age offenders.

Article 13l, whose content is doctrinaire, is revoked.

As in the Code of Criminal Procedure, article 145 separates again the forms of evidence to prove the commission of an offence and to demonstrate culpability. The confession is again only for the purposes of culpability and "criminal responsibility". The latter phrase was removed, since "criminal responsibility" and "criminal culpability" are distinct concepts. Criminal responsibility is a declaration resulting from all features of the punishable act (action, type, non-juridical nature, culpability, punishability and, in certain cases adjective conditions of punishability), whereas criminal culpability is a characteristic feature of the offence: it is normative in nature and, so that the individual may be declared criminally responsible, it is necessary to prove in advance all the elements of the offence (Roberto Y6pez Boscán). Item 5 of this article has been changed from "visual inspections" to "police or judicial inspections".

The confession is left as evidence of culpability. Also retained is the requirement of validity of the signatures of the defender and of the representative of the Public Prosecutor's Office, since the current Code of Civil Procedure so requires, and the judge will therefore understand that it is an essential procedural requirement to guarantee the authenticity of the document. There shall also be cause for ex officio reconsideration, a detail that is necessary because it does not exist in articles 68 and 69 of the Code of Criminal Procedure, since this requirement for the presence of the defender in the information statement only appears on the LOSEP. Section 1 of article 69 of the Code of Criminal Procedure indicates that the procedure may be reconsidered ex officio if the defender was not present during the examination or the charging procedure, on which basis it is doctrinally valid to extend it to the information statement, pursuant to the LOSEP, on the basis of the Miranda Law in Anglo-Saxon procedure, in order to guarantee the defence as from that procedure. The indication of a timetable for the taking of information statements by judicial authorities is restored, in that it helps to avoid early-morning statement sessions, using "third degree" methods.

Article 146 lays down that the official shall note the characteristics of the substances that can normally be noted and those revealed by expert analysis, for immediate analysis. It sets out all conditions relating to the handover of the seized substances, if they have therapeutic use, to the Ministry of Health and Social Welfare. It sets out the destruction of those substances, in accordance with practical requirements, and establishes the possibility of appointing, in rotation, a judge from among those with jurisdiction, to oversee the destruction of the seized drugs within 30 days.

Article 163 makes no change in the conditions on evidence outside the jurisdiction of the LOSEP. The new article 164 obliges the court dealing with the case to order the furnishing of evidence that may not have been furnished in the summary proceedings or evidence that the accused may have adduced in the public hearing, as well as any evidence that the court may consider useful.

Article 165 is amended so that the parties to the proceedings may use any other means of evidence that they think appropriate to demonstrate their claims, provided that it is not prohibited by the Law. As regards evidence, the LOSEP approach adopts the method of legal [ tarifada] evidence and maintains the system of healthy critique, making it possible to relate the system of assessing evidence and the means of evidence to the regime set out in the Code of Civil Procedure.

Articles 166, 167, 168, 169, 170 and 171 have been slightly amended. The new article 172 states that no associates may be appointed and no advisers may be consulted. Articles 173, 174, 175 and 176 remain essentially the same as those in the previous Law, apart from some corrections, such as that made to article 173 in respect of deferment in order to reach a decision.

Article 182 sets out the modalities for recourse on substantive provisions or a defect of activity, and article 183 lays down automatic appeal in the event of public order and institutional infringements. Article 184 relates to annulment of the verdict without remand.