7
criminal proceedings: a) due process guarantees in the criminal case; b) definition of the
crime as charged in the criminal proceedings; and c) no time bar on the criminal actions
germane to the events consisting of the forced disappearance of Trujillo-Oroza. The Court
deems it convenient to refer to these three aspects in itemized fashion.
a) Due process guarantees in the criminal case
22.
That, with regard to due process guarantees in the criminal case, in the private
hearing (supra Having Seen clause No. 11,) the State referred to “the laws [according to
which] non-criminal judges may be authorized to hear the case.” The State explained that
under the former Code of Criminal Procedure, which is applicable to the pending
proceedings, excuses and challenges are processed and decided in the light of civil
procedure rules and the judicial administration act. Thus, chapter IV of Law 1760 [civil
procedure abridgment and family assistance] on excuses and challenges provides a list of
grounds for excuse of judicial officers. In the light of the provisions of section 3 of this law,
34 judges and 2 prosecutors of the Santa Cruz district excused themselves from hearing the
case, including criminal, civil and domestic relations judges. The State pointed out that “[…]
the excusing judge must remand the case to the new acting judge, who shall forthwith hear
the case and continue with the proceedings. If the excuse is deemed illegal for not being
properly grounded, the judge shall submit the background of the proceedings in
consultation to the Superior Court.” The State affirmed that even if the excuse is declared
illegal, the judge shall be definitely barred from hearing the case and this is the reason why
the proceedings were remanded to all criminal judges, then to civil judges and, finally, to
domestic relations courts.
23.
That the State also noted that “[t]here are eleven grounds for excuse applicable to
judicial officers[, and that] most of the excusing judges alleged that they had expressed an
opinion on the legality or illegality of the prosecution before hearing the case.” The State
acknowledged during the private hearing (supra Having Seen clause No. 11) that “excuses
have been used in an excessive and arbitrary manner,” and that, as a result, “disciplinary
proceedings have been instituted against the judges [and] fines amounting to 100
Bolivianos have been imposed; […] three judges have been suspended from office for one
month.” The State also acknowledged that there were no express provisions forbidding the
judges to express themselves publicly on matters submitted to the jurisdiction of the courts.
24.
In light of the foregoing, the State affirmed that while there was a “legal framework
authorizing a civil or commercial judge to hear a criminal case, as a result of the excuses
made by the judges, […] the guarantees provided for in Article 8(1) of the American
Convention regarding competence, independence and impartiality [of the judges] ha[d] not
been infringed.” Nonetheless, during the private hearing (supra Having Seen clause No. 11)
the State also highlighted that under the current criminal procedure system, the chapter on
excuses and challenges of Law 1970 was amended. According to it, “in all new
proceedings[,] if an excuse is declared illegal [the case] is remanded to the judge […,]”
thus, in future proceedings there will be no need “to remand the case file to a non-criminal
judge.”
25.
That the representatives pointed out that “more than 40 judges have excused
themselves [and the cases were remanded] to a domestic relations court.” Moreover, they
noted that only “11 judges were fined with 100 Bolivianos, equal to USD $15 […]” They
affirmed that this number of excuses is exceptional even in a process in Bolivia and that, in
their opinion, “the real reason is political,” due to the alleged “association of most of the
appointed judges […]”