management of public funds.” In this sense, the representatives questioned that “it was
not of the same interest to determine the guilt of the defendant as it was to demonstrate
the occurrence of the event.” Thus, they concluded that “the presumption of innocence
was not guaranteed” and that “upon initiating the proceeding and even before the
accused was given notice of [the] initiation of a proceeding against him, he had been
charged for the same unproven acts and [that] he had not been able to contest them,
before the civil and criminal courts.”
125. In this regard, the State referred to the decision by the Constitutional Chamber of
the Supreme Tribunal of Justice, in judgments of August 6 and 12, 2008, regarding the
constitutionality of Article 105 of the LOCGRSNCF. In its final written arguments, in
regard to the appeals filed for the actions of the Municipality of Chacao, the State argued
that Mr. López Mendoza “claim[ed] in an unfounded manner that the judgment [at issue],
took on a regressive stance regarding the right to presumption of innocence upon
validating the argument that the alleged administrative responsibility under the
LOCGRSNCF and in particular, that relating to the recipient change of the budgetary
appropriations, are cases of objective administrative responsibility in which it is not
necessary to assess the conduct of the accused.” Thus, the State argued the “objective
character of the administrative offenses" and noted that the representatives contradict
themselves upon “maintaining [...] on the one hand, that the aforementioned
responsibility is subjective in nature and, on the other hand, that the same assumption of
responsibility is by nature objective.”
1.2.2. Considerations of the Court
126. The Court notes that the Constitutional Chamber of the Supreme Tribunal of
Justice has ruled on the presumption of innocence in regard to the application of Article
105 of the LOCGRSNCF as follows:
Its essential content is that throughout the administrative sanctioning or disciplinary proceeding,
there should be evidentiary activity designed to establish the guilt of the official, without disclosing
any opinion as to the merits of the matter. It is a right that directly involves how the evidentiary
phase of the sanctioning proceeding is developed. Thus, the presumption of innocence requires that
the act that declares administrative responsibility be the only determination of the culpability of the
official under investigation. 225
127.
Subsequently, the Constitutional Chamber of the Supreme Tribunal stated that:
"... the sanctions contained in Article 105 [...] must be issued after the substantiation of the
respective administrative proceeding in which the person under investigation may raise all the
arguments and evidence deemed relevant to his or her defense and where, all procedural safeguards
are guaranteed, among which is the presumption of innocence, so that from its inception until right
before the issuance of administrative responsibility the individual under investigation is presumed
innocent and this is the treatment that must be made. However, once the substantiation of the
proceedings and instruction in the case has been completed and the administrative responsibility for
the commission of an unlawful administrative act has been determined, the presumption of
innocence of the investigation is swapped, applying the punitive legal consequences provided for in
said Article 105 [...] without this implying a violation of the constitutional guarantee of presumption
of innocence, as it has already been asserted in the procedure-guarantee.” 226
225
Judgment No. 1.266 of August 6, 2008, issued by the Constitutional Chamber of the Supreme Tribunal
of Justice, supra note 31, folio 633.
226
Judgment N° 1.270 of August 12, 2008, of the Constitutional Chamber of the Supreme Tribunal of
Justice supra note 188, folio 1421.
53
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