19
elements of conviction to exclude any legitimate misgivings or well-grounded
suspicion of partiality regarding his or her person.73 That is so since the judge must
appear as acting without being subject to any influence, inducement, pressure,
threat or interference, direct or indirect,74 and only and exclusively in accordance
with —and on the basis of— the Law.
57.
Now, then, considering that the arguments presented by the Commission and
the representatives mainly allege that the CORJS was influenced by other branches
of Government and by the Judiciary itself, the Court will deal with such points in the
chapter on judicial independence, and leave to this chapter on impartiality the only
allegation of the parties thereon, to wit, the impossibility of challenging the members
of the CORJS.
58.
The Commission alleged that the “disciplinary system […] lacks safeguards
enabling the parties to object the […] partiality” of the CORJS inasmuch as it “forbids
challenging its members.” In such sense, it indicated that “even if they had, for
instance, close friendship or open antagonism with any of the parties, or had
previously given their opinion on the matter, a legal bar on challenging them would
still operate.” The representative added that “the [alleged] victims did not have the
impression that the tribunal hearing their case was impartial, and that is why they
challenged [its] members,” however, “[t]he challenges were not even examined,” for
they were not allowed under the law, and the members of the CORJS “did not grant a
request made before them to decline their jurisdiction either.” The State made no
reference to such allegations.
59.
According to the evidence produced, the Tribunal verifies that the Transitional
Scheme for Exercising Public Powers provides that the members of the CORJS and
the IGC “will not be subject to challenge, but must decline their jurisdiction in the
cases provided in Article 36 of the Ley Orgánica de Procedimientos Administrativos
[Administrative Procedure Organic Law].75
73
Cf. Piersack v. Belgium, judgment of 1 October 1982, Series A no. 53, and De Cubber v. Belgium,
judgment of 26 October 1984, Series A no. 86.
74
Principle 2 of the United Nations Basic Principles, supra note 59.
75
Cf. article 31 of the Decree whereby the Transitional Scheme for Exercising Public Powers is
established, supra note 27. Article 36 of the Administrative Procedure Organic Law published on July 1,
1981 in the Extraordinary Official Gazette No. 2.818 establishes:
Administration officials shall decline the competent jurisdiction statutorily vested in them to
hear the matter, in the following cases:
76
1.
When they personally, or their spouse or some relative within the fourth degree of
consanguinity or the second degree of affinity, would have an interest in the outcome of
the case.
2.
When they would have close friendship or open antagonism with any of the persons
interested or participating in the proceedings.
3.
When they would have been witnesses or expert witnesses in the case to be determined,
or if as officials they would have previously given their opinion therein, in such a way
that they would have prejudged beforehand on the outcome of the case, or, in
proceedings where the Administration is a party, they would have determined or taken
part in determining the decision on the act being challenged. Cases where the decision
was reversed on the own motion of the official who had adopted it, and cases where the
decision was reversed after it being reconsidered, are excluded.
4.
When they would have a labor or superior-subordinate relationship with any of the
persons directly interested in the proceedings.
Cf. brief of October 30, 2003, filed by Mr. Rocha with the CORJS (Evidence file, Book VIII, Annex
Ñ, pp. 2683 to 2689).