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retirees “cease to render active service” to the Armed Forces.96 Thus, retired service
members in Venezuela do not exercise particular functions of defense or national security97
that would permit them to be tried in the State´s military forum, and the Tribunal finds no
reason to depart from its previous jurisprudence that determined that retired service
members should not be tried by a military court.
116.
Consequently, Mr. Usón Ramírez –who was not an active service member or
exercising any particular function of defense or national security- was tried by a court that
was not competent to do so. Thus, following the jurisprudence of this Tribunal in such
respect, the Court considers that the State violated the right of Mr. Usón Ramírez to be tried
by a competent judge or court, pursuant to Article 8(1) of the American Convention, in
relation Articles 1(1) and 2 thereof.
A.2) Impartiality
117.
The right to be tried by an impartial judge or tribunal is a fundamental guarantee of
due process. That is, it shall be guaranteed that the judge or the tribunal exercise maximum
objectivity in the trial.98 In this respect, this Tribunal has established that impartiality
requires that the judge in a private conflict is closer to the facts of the cause with no
subjective prejudice and, similarly, offers sufficient guarantees from the objective
standpoint so that it is beyond all doubt that there is full impartiality. 99 The impartiality of
the tribunal means that its members should not have any vested interest, a premeditated
decision, preference for any of the parties involved, and that they are not involved in the
dispute.100 Personal or subjective impartiality is assumed unless there is evidence to the
contrary. In turn, the so-called objective evidence consists of determining whether the
questioned judge can provide convincing elements to eradicate any legitimate fears or wellgrounded suspicions of partiality regarding his person.101
118.
Consequently, this Court has declared previously that judges must separate
themselves from a cause brought to their attention when doubt or other motives goes
against the integrity of the tribunal as an impartial body. In order to safeguard the
administration of justice, it must be assured that a judge is free from any prejudice and
there is no fear at all raising any doubts about the exercise of his jurisdictional functions.102
119.
In this case, it has been shown that one of the magistrates, Mr. Eladio Ramon
Aponte Aponte, in the Criminal Court of Appeals of the Supreme Tribunal of Justice who
heard the appeal filed by Mr. Usón Ramírez, was the person who ordered the investigation
96
In this regard, Article 240 of the Organic Code establishes that “[r]etirement is the time where Officials
[…] who stop lending their services to the National Armed Forces because of [among other reasons]: […] g)
[d]isciplinary measures.”
97
Cf. Case of Palamara Iribarne, supra note 47, para. 132.
98
Cf. Case of Herrera Ulloa, supra note 40, para. 171 y Case of Palamara Iribarne, supra note 47, para. 145.
99
Cf. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”), supra note 41, para. 56.
100
Cf. Case of Palamara Iribarne, supra note 47, para. 146.
101
Cf. Case of Apitz Barbera et al.(“First Court of Administrative Disputes”), supra note 41, para. 56.
102
Cf. Case of Palamara Iribarne, supra note 47, para. 147.
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