for the facts related to the Municipality of Chacao was imposed about six months after
the final resolution of the declaration of responsibility. 278 (supra para .80 and 81).
205. In this regard, although the time that passed in this case between the declaration
of responsibility and the imposition of the disqualification itself was not excessive, it is
proven that the domestic regulation did not establish a period or fixed term for the
Comptroller to exercise such power. The decision of the Political-Administrative Chamber
in which it attempted to fill this regulatory gap with the statute of limitations of
administrative actions does not meet the standard of predictability or certainty of the
regulation. Indeed, the "foreseeability test" implies proving that the regulation delineate
the scope of discretion that can be exercised by the authority and define the
circumstances in which it can be exercised in order to establish appropriate safeguards to
prevent abuse. 279 The Court considers that the uncertainty regarding the period within
which it could impose the additional sanctions established in Article 105 of the
LOCGRSNCF is contrary to the legal certainty which must be had in a sanctioning
proceeding. Moreover, a period of five years is not reasonable to ensure foreeseability in
the imposition of the restriction. It is a period that is too prolonged and, therefore, is
incompatible with the requirement that a sanctioning proceeding be concluded at the time
the corresponding responsibility is determined, in such a way that the accused does not
wait for a period that is too broad to determine the type of sanction that will be imposed
for responsibility that has already been determined. Furthermore, the lack of a fixed,
foreseeable, and reasonable period of time may lead to the arbitrary exercise of
discretion by imposing sanctions applied in a totally unexpected moment for the person
who has been previously found responsible.
206. Consequently, by not complying with the requirement of forseeability, and also,
taking into account that specified in regard to how Article 105 of the LOCGRSNCF allows a
restriction on the right to be elected by an authority that is not a criminal court as
required Article 23(2) (supra para. 107 and 108), the Court concludes that in this case,
the State violated Articles 8(1), 23(1)(b) and 23(2), in relation with Articles 1(1) and 2 of
the American Convention.
VII
REPARATIONS
(APPLICATION OF ARTICLE 63(1) OF THE AMERICAN CONVENTION)
207. On the basis of Article 63(1) of the American Convention,280 the Court has
indicated that any violation of an international obligation that has caused damage triggers
278
On March 28, 2005, the Motion to reconsider was resolved that set as final the declaration of
administrative responsibility for the facts related to the Mayor’s Office of Chacao and on September 26, 2005, of
the Comptroller General of the Republic issued Resolution No. 01-00-235 that set the sanction of disqualification
for 6 years, supra notas 147 and 152.
279
In this regard, the European Court has established that “a law which confers a discretion must indicate
the scope of that discretion […]. The degree of precision required of the "law" in this connection will depend
upon the particular subject-matter. […] Consequently, the law must indicate the scope of any such discretion
conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to
the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary
interference”. ECHR, Case Malone, supra note 269, para. 67 and Case Olsson, supra note 275, para. 61.
280
This Article provides that "when the Court finds a violation of a right or freedom protected
by [the] Convention, the Court shall rule that the injured party be guaranteed his or her right or freedom that
77
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