Court of Justice after the adoption of the Constitution: the reform of the Organic Law of that Court, which provided for election, by the National Assembly, of 12 new justices by simple majority41; and the removal or “retirement” of the justices who did not follow the government line.42 As long as the Supreme Court has the function of appointing and removing lower judges, the petitioners consider that this situation affects the autonomy of the Judiciary. 48. They consider that the instant case fits within the framework of a state policy in which Allan Brewer Carías not only has been condemned beforehand, but is also impeded from using the remedies normally available for his defense within the criminal proceeding, which are arbitrarily not recognized by the Public Ministry and the judicial system. The petitioners argue that having recourse to those remedies becomes a meaningless formality and that the exceptions to Article 46(2) fully apply in this situation and exempt them from the requirement of exhausting domestic remedies, which in practice cannot attain their aim.43 49. They further allege that the proceeding has been at a standstill since the issuance of the arrest warrant for Allan Brewer Carías in June 2006, and that therefore the preliminary hearing has not been held, which constitutes an unwarranted delay in the proceeding, and a violation of the right to trial in liberty and without delay. They also allege unwarranted delay in resolving the motion of nullity filed November 8, 2005. They indicate that said request has not yet been resolved, and that the proceeding is in an intermediate phase. 50. With respect to the procedural effects of the lack of physical presence of Allan Brewer Carías in the unfolding of the proceeding, they consider that these only reach procedural acts that cannot go forward without his presence, such as the preliminary hearing and the oral and public trial. They indicate that this does not stand in the way of other judicial proceedings that do not imply that he is being tried in his absence, such as the motion for nullity filed on November 8, 2005. They argue that the prohibition of a trial in absentiaconstitutes a procedural guarantee that should always be understood so as to favor the accused or defendant, and never against him. They indicate that it is not a punishable act under the Venezuelan Criminal Code.44 The petitioners allege that staying outside the country is a reasonable act so as to impede the aggravation of the human rights violations already suffered, and the threats of their repetition. 51. Accordingly, they allege that the exceptions to the exhaustion of domestic remedies provided for in the three subsections of Article 46(2) of the American Convention apply. B. The State’s position 1. Context 52. The State cites the resolutions adopted by the Permanent Council and by the General Assembly of the Organization of American States which define the events that took place between April 12 and April 13, 2002, as a “grave disruption of the constitutional order” of The petitioners note that the IACHR established in its Report on the Situation of Human Rights in Venezuela of 2003 that this law “does not take into consideration the concerns expressed by the IACHR in its report in terms of the possible threats to the independence of the Judicial branch.” Original petition received January 24, 2007, para. 38. They also indicate that several constitutional challenges have been brought against that law, including the one presented by the deans of the country’s most prestigious law schools, which, after three years, was still awaiting a decision. Original petition received January 24, 2007, para. 40. 42 The petitioners indicate that on the eve of the appointment of the justices, the then-Chairman of the Parliamentary Commission entrusted with choosing the candidates for a place on the Supreme Court said the following to the press: ”while us members of the legislature have the power over this choice, the President of the Republic was consulted and his opinion was taken into account…. Let’s be clear, we are not going to score own-goals. The list included people from the opposition who meet all the requirements. The opposition could have used them to reach an agreement in the last two sessions but they refused. So we’re not going to do it for them. The group nominated does not include anyone who is going to act against us, so even if it’s in a 10-hour session, we’ll approve it. Original petition received January 24, 2007, para. 39. 43 The petitioners cite I/A Court H.R., Case of Velásquez Rodríguez. Preliminary Objections. Judgment of June 26, 1987. Series C No. 1, para. 64. Original petition received January 24, 2007, para. 153. 44 The petitioners indicate that according to Article 259 of the Venezuelan Criminal Code, not even flight of a defendant from the establishment where he or she is detained is punishable, unless it involves violence. Petitioners’ brief received January 3, 2008, p. 34 41 11