subject to influences, incentives, threats or interference, either directly or indirectly,
but only and exclusively in accordance with – and motivated by – the law.”17
18.
In cases concerning proceedings under the military justice system, the Court
has explored the guarantee of judicial independence and impartiality as an obligation
of the State and a right of the individual.18 In these cases, it has determined that both
the prosecution of civilians by military courts, and the prosecution of military and
police personnel for human rights violations under this system violates the right to an
ordinary judge established in Article 8(1) of the American Convention. In such cases,
the Inter-American Court has focused its analysis on both the independence and
impartiality of the judges who intervene, and also their lack of material competence to
hear this type of case.19
19.
Similarly, the Inter-American Court has ruled on alleged violations of judicial
independence and impartiality, over and above the concerns relating to prosecution by
military courts. In recent years, the Court has done this in the cases of: Apitz Barbera
et al. v. Venezuela, Barreto Leiva v. Venezuela, Atala Riffo and daughters v. Chile, the
Supreme Court of Justice (Quintana Coello et al.) v. Ecuador , the Constitutional
Tribunal (Camba Campos et al.) v. Ecuador, and J. v. Peru.20
20.
The Court has emphasized that one of the main purposes of the separation of
public powers is the guarantee of the independence of judges, which is intended to
avoid the judicial system in general, and its members in particular, possibly being
subject to undue constraints in the exercise of their function from organs outside the
Judiciary or even from those judges who occupy functions of review or appeal. The
Inter-American Court has understood that the independence of the Judiciary is
“essential for the exercise of the judicial function.” In accordance with its consistent
case law, the Inter-American Court has considered that the following guarantees arise
from judicial independence: an adequate appointment procedure; tenure in office, and
a guarantee against external pressure. The Court has referred to the right to an
17
Supra footnote 16.
18
Cf., among others, Case of Castillo Petruzzi et al. v. Peru. Merits, reparations and costs. Judgment
of May 30, 1999. Series C No. 52; Case of Cantoral Benavides v. Peru. Merits. Judgment of August 18, 2000.
Series C No. 69; Case of Palamara Iribarne v. Chile. Merits, reparations and costs. Judgment of November
22, 2005. Series C No. 135; Case of Cabrera García and Montiel Flores v. Mexico. Preliminary objection,
merits, reparations and costs. Judgment of November 26, 2010. Series C No. 220, and Case of Nadege
Dorzema et al. v. Dominican Republic. Merits, reparations and costs. Judgment of October 24, 2012. Series
C No. 251.
19
In particular, see the “Foreword” by Diego García-Sayán, which provides an overview of the InterAmerican Court’s most important case law on this matter, in the volume by Ferrer Mac-Gregor, Eduardo and
Silva García, Fernando, Jurisdicción Militar y Derechos Humanos. El Caso Radilla ante la Corte
Interamericana de Derechos Humanos, Mexico, Porrúa-UNAM, 2011.
20
Cf. Case of Apitz Barbera et al. (“First Contentious Administrative Court”) v. Venezuela. Preliminary
objection, merits, reparations and costs. Judgment of August 5, 2008. Series C No. 182, paras. 189 to 192
and 234 to 238; Case of Barreto Leiva v. Venezuela. Merits, reparations and costs. Judgment of November
17, 2009. Series C No. 206, paras. 94 to 99 and sixth operative paragraph; Case of Atala Riffo and
daughters v. Chile. Merits, reparations and costs. Judgment of February 24, 2012.
Series C No. 239, paras. 54 to 67; Case of the Supreme Court of Justice (Quintana Coello et al.) v.
Ecuador. Preliminary objection, merits, reparations and costs. Judgment of August 23, 2013. Series C No.
266, paras. 143 to 180 and third operative paragraph; Case of the Constitutional Tribunal (Camba Campos
et al.) v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of August 28, 2013.
Series C No. 268, paras. 219 to 222 and second and third operative paragraphs, and J v. Peru. Preliminary
objection, merits, reparations and costs. Judgment of November 27, 2013. Series C No. 275, paras. 181 to
189 and third operative paragraph.
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