18
jurisdiction, determined that the CORJS was the one who had to consider the possible
responsibility of the victims by reason of their exercising their judicial functions.
53.
On the other hand, the disciplinary jurisdiction of the CORJS originates in a
statute enacted by the Constitutional Assembly, and therefore ranking superior to the
laws,67 established in 1999, that is to say before the proceedings were instituted
against the Judges of the First Court;68 it is not an ad hoc tribunal, since it was
granted competent jurisdiction in general to hear all disciplinary proceedings against
judges in Venezuela, applying a common procedure; and there is no domestic rule
expressly granting competent jurisdiction to hear the case in point to a body other
than the CORJS. On the grounds of all the foregoing, the Court does not find a
violation of the right to a hearing by a competent tribunal, previously established by
law, enshrined in Article 8(1) of the Convention.
3.
Impartiality of the CORJS
54.
The arguments by the Commission and the representative deal jointly with the
alleged lack of independence and impartiality of the CORJS when it removed Judges
Apitz, Rocha, and Ruggeri from office.
55.
In this regard, the Court underscores that, albeit independence and
impartiality are related,69 it is also true that they each have a legal content of their
own. Thus, this Court has said that one of the principal purposes of the separation of
public powers is to guarantee the independence of judges.70 Such autonomous
exercise must be guaranteed by the State both in its institutional aspect, that is,
regarding the Judiciary as a system, as well as in connection with its individual
aspect, that is to say, concerning the person of the specific judge. The purpose of
such protection lies in preventing the Judicial System in general and its members in
particular, from finding themselves subjected to possible undue limitations in the
exercise of their functions, by bodies alien to the Judiciary or even by those judges
with review or appellate functions.
56.
On the other hand, impartiality demands that the judge acting in a specific
dispute approach the facts of the case subjectively free of all prejudice and also offer
sufficient objective guarantees to exclude any doubt the parties or the community
might entertain as to his or her lack of impartiality.71 The European Court of Human
Rights has explained that personal or subjective impartiality is to be presumed
unless there is evidence to the contrary.72 In its turn, the so-called objective
approach test consists in determining whether the judge in question offered sufficient
67
As the STJ has affirmed, it is understood that the decrees enacted by the Constitutional Assembly
are of a “supraconstitutional” nature, however transitory. Cf. judgment No. 1048 of May 18, 2006,
delivered by the Chamber for Constitutional Matters of the STJ.
68
Cf. article 24 of the Decree whereby the Transitional Scheme for Exercising Public Powers is
established, supra note 27.
69
For instance, the Committee against Torture expressed that: “The Committee is concerned at the
judiciary’s de facto dependence on the executive, which poses a major obstacle to the immediate
institution of an impartial inquiry when there are substantial grounds for believing that an act of torture
has been committed in any territory under its jurisdiction.” Cf. United Nations, Committee against Torture,
Conclusions and Recommendations: Burundi, CAT/C/BDI/CO/1, para. 12.
70
Cf. Case of the Constitutional Court, supra note 60, para. 73.
71
Cf. Pullar v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions
1996-III, § 30, and Fey v. Austria, judgment of 24 February 1993, Series to no. 255-A p. 8, § 28.
72
Cf. Daktaras v. Lithuania, no. 42095/98, § 30, ECHR 2000-X.