122.
According to Article 25 of the Convention, States must provide an adequate and effective
remedy against violations of the rights established in the Convention, in the Constitution and in the law. 214 In
this sense, the State must ensure the existence of simple, rapid and effective remedies so that any individual
subjected to criminal proceedings may challenge the competence, independence and impartiality of the
judicial authorities hearing the case.
2.
Analysis of the Present Case
123.
The Commission observes that in the context of the four criminal cases described in the facts
of the case, Mr. Romero Feris’ defense counsel filed a series of remedies challenging different aspects relating
to the competence, independence and impartiality of the judicial authorities conducting criminal proceedings
against him. When exercising these remedies, Mr. Romero Feris argued that these violations had a political
dimension according to which those hearing his cases had been appointed in an irregular manner with the
express purpose of ensuring his persecution throughout the criminal proceedings.
124.
The Commission observes that the questions raised in these remedies can be summarized as
follows: (i) challenge of the appointment of Instructing Magistrate No.1 due to the fact that he was placed
ninth in the list of candidates for the corresponding competitive selection process; (ii) challenge to the
application of the rules of jurisdiction that led to Instructing Magistrate No.1 hearing the case; (iii) challenge
to the composition of Criminal Chamber No. 2 and of the Superior Court of Justice, because some of its
members had been appointed temporarily by the Executive, despite the fact that the Senate was not in recess,
as established by Article 142 of the Provincial Constitution; (iv) challenge to the involvement of a member of
Criminal Chamber No. 2 for having close family ties with another judge participating in other cases against
Mr. Romero Feris; (v) recusation against members of the Criminal Chamber No. 2 for having reviewed some
steps taken during the instructing phase in the same cases; and (vi) challenge against the Superior Court of
Justice, for a ruling adopted by only three of its five members, notwithstanding that the Organic Law of the
Administration of Justice states that such decisions should be taken by absolute majority of all its members.
125.
In general terms, the Commission notes that in order for a judicial remedy to be effective in
challenging competence, independence and impartiality of courts, States must ensure that such remedies are
not resolved by the same authority whose competence, independence and impartiality are subject to
challenge. In the present case, the Commission observes that several of the remedies filed were heard, at least
initially, by the authority that had been challenged. This fact alone could lead the Commission to conclude
that those remedies were not effective. However, given that these remedies were frequently exercised in
connected with other remedies that were themselves reviewed by higher courts, the Commission does not
have sufficient elements to establish a violation of the American Convention for this reason alone.
126.
Notwithstanding the foregoing, the IACHR make a finding on each of these points in light of
the right to be tried by a competent, independent and impartial authority, taking into account the decisions of
the domestic judicial authorities within the framework of the remedies filed by Mr. Romero Feris’ defense
counsel.
127.
Firstly, as regards the challenge to the appointment of Instructing Magistrate No.1, which
counsel considered as a politically motivated appointment (as a “covered” judge) despite the fact of being
placed number nine in the list of candidates of the competitive selection process for his appointment, the
judicial authorities rejected that challenge on the grounds that the domestic legislation did not impose the
obligation to appoint "neither the first, nor even the third candidate on the list".
128.
With respect to the right to a competent authority, the Commission notes that this analysis
refers to domestic legislation, and therefore it is not pertinent to analyze it since the legal obligation to
214 I/A Court H.R. Case of Castillo Páez v. Peru. Merits. Judgment of November 3, 1997. Series C No. 34, para. 82; Case of Claude
Reyes et al. v. Chile. Merits, Reparations and Costs. Judgment of September 19, 2006. Series C No. 151, para. 131, and Case of Castañeda
Gutman v. Mexico. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 6, 2008. Series C No. 184, para. 78.
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