To this end, it is necessary to call attention to the fact that the rules of interpretation
of treaties, which entail the simultaneous application of good faith, the ordinary
meaning of the terms used in the treaty in question, their context, and the object and
purpose of the treaty,12 make it obligatory not to overlook the relevance of the explicit
use of the words “competent, independent and impartial judge or tribunal, previously
established by law” in Article 8(1). According to the customary and convention-based
rules of interpretation of treaties, it is therefore necessary to consider the use of these
terms. The rules of interpretation do not authorize these words to be omitted or, above
all, changed, but merely that their meaning and scope be established among the
various application alternatives that could arise.
In this regard, it is worth recalling that this course was followed in one of the Court’s
most recent judgments. The case in which the judgment was delivered consisted in
“determining whether the sanction of loss of civil rights imposed on Mr. López Mendoza
by a decision of an administrative body – the Comptroller General of the Bolivarian
Republic of Venezuela, adopted under the authority granted by law 13 - and the
consequent impossibility for him to register his candidacy for elected office, was
compatible with the American Convention.” 14 In this regard, the Court recalled Article
23(2) of the Convention, which indicates that “the law may regulate the exercise of the
rights and opportunities referred to in the preceding paragraph [concerning political
rights] only on the basis of age, nationality, residence, language, education, civil and
mental capacity, or a criminal conviction by a competent court.” And, in this regard,
concluded that “in this case, which refers to a restriction imposed by means of
sanctions, it should have been a “criminal conviction imposed by a competent judge,”
adding that “[n]one of these requirements has been fulfilled, because the body that
imposed the said sanctions was not a “competent judge,” there was no “criminal
conviction” and the sanctions were not applied as the result of “criminal proceedings,”
in which the judicial guarantees embodied in Article 8 of the American Convention
would have to have been respected.”15
In short, it could be inferred from the above that the Court, in its interpretation of
Article 23(2) of the Convention, understood the ordinary meaning of the expression
“competent judge” in keeping with the principle of good faith, the context of the terms
of the Convention, and its object and purpose 16 and, consequently, considered that the
Comptroller General of the Bolivarian Republic of Venezuela, even though he was
exercising the disciplinary and sanctionary powers granted by law, and having heard
the victim in accordance with the previously-regulated procedure, in reality was not a
“competent judge,” terms that could well be equated to those used by Article 8(1); in
other words, to those of “competent, independent and impartial judge or tribunal,
previously established by law.”
12
Art. 31(1) of the Vienna Convention on the Law of Treaties: “A treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in
the light of its object and purpose.”
13
Case of López Mendoza v. Venezuela. Judgment on merits, reparations and costs, September 1,
2011, Para. 33.
14
Idem, para. 104.
15
Idem, paras. 104 and 107.
16
See my concurring opinion, Case of López Mendoza v. Venezuela. Judgment on merits, reparations
and costs, September 1, 2011.
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