187. The Court considers that in this case there are not sufficient evidentiary elements to
infer the existence of external pressures against the judges who considered the case of the
ruling against Ms. Atala. On the other hand, given that the judges of the Court of Appeals of
Temuco who were sanctioned for the remedy of complaint are not alleged victims in the
present case, this limits any ruling that the Court may issue in relation to a possible
violation of Article 8.1 of the Convention for said decision to sanction.
188. Finally, the Court has previously emphasized that, since it is not a fourth instance, it
cannot assess the evidence regarding which of the parents of the three girls offers them a
better home (supra para. 66). Similarly, since this Court is not a fourth instance, it cannot
issue a ruling on the dispute between different sectors of the local doctrine on the scope of
domestic law regarding the requirements for the admissibility of a remedy of complaint.
189. On the other hand, regarding the Supreme Court’s impartiality in issuing its decision
on the remedy of complaint, the Court recalls that judges who intervene in a particular
dispute are required to approach the facts of the case impartially, without subjectivity or
prejudice and, at the same time, offer sufficient guarantees of an objective nature that
would eliminate any concerns that a defendant or the community might have regarding a
lack of impartiality. While personal or subjective impartiality is presumed unless there is
evidence to the contrary, for example proof that a member of a court or the judge has
shown personal prejudice or partialities against the parties, the so-called objective evidence
consists in determining whether the questioned judge provided convincing elements that
would dispel any legitimate fears or well-based suspicions of prejudice regarding their
conduct. Thus, a judge must appear to act without being subject to influences, incentives,
pressures, threats, or interference, direct or indirect,214 but instead only and exclusively
according to the Law.215
190. The Inter-American Court points out that, while it is true that in the case at hand
some violations to the Convention have been declared, a violation of Article 8.1 of the
Convention for the alleged lack of judicial impartiality must be established based on specific,
concrete evidentiary elements that indicate a situation in which the judges have clearly
allowed themselves to be influenced by aspects or criteria outside of the legal provisions.
191. The Court finds that neither the Commission nor the representatives have provided
specific evidence to disprove the presumption of the judges’ subjective impartiality. Nor are
there any convincing elements that might call into question the objective impartiality of the
Villarica Court’s decision regarding provisional custody or of the judgment of the Supreme
Court. An interpretation of the provisions of the Chilean Civil Code in a manner contrary to
the American Convention in matters of child custody involving a homosexual individual is
not enough, in itself, for this Court to declare a lack of objective impartiality.
192. Therefore, the Court considers that the State did not violate the judicial guarantees
recognized in Article 8.1 of the Convention, in relation to the decision of the Supreme Court
of Justice and the Villarrica Court in this case.
214
Principle 2 of the Basic Principles of the United Nations regarding the Independence of the Judiciary, supra
note 212.
215
Case of Apitz Barbera et al. supra note ¡Error! Marcador no definido., para. 56.
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