these amici curiae coincide in indicating different violations of Mr. Brewer’s rights under the
Convention.
4.
For greater clarity, we will divide this opinion into the following sections: (1) Subject
of the dispute (paras. 5 to 32); (2) Dissent (paras. 33 to 119), and (3) Defense of the rule
of law and the exercise of the legal profession (paras. 120-125).
1. Subject of the dispute
5.
Regarding the preliminary objection filed by the State, as indicated in the Judgment,
the main dispute between the parties arises from the different judicial actions filed by the
representatives of the victims during the processing of the domestic criminal proceedings; in
particular, the filing of two applications for a declaration of the absolute nullity of all the
measures taken in the preliminary investigation and the proceedings instituted against the
lawyer, Allan Brewer Carías.
6.
This dispute stems from: (i) whether the requests for annulment were appropriate
and effective remedies to exhaust the domestic jurisdiction; (ii) the procedural stage at
which the requests for annulment should be decided; (iii) whether the presumed victim was
prevented from exhausting the domestic remedies, and (iv) whether the delay in deciding
the said remedies could be attributed to the presumed victim.
7.
The first dispute focuses on whether the two requests for annulment filed by the
representatives of Mr. Brewer Carías can be considered appropriate and effective remedies
to comply with the requirement of exhaustion of the remedies of the domestic jurisdiction.
8.
Regarding the second dispute, the parties disagree as to whether the requests for
annulment should have been decided by the judge in charge of the case within three days of
their presentation or whether, to the contrary, this request should be examined and decided
during the preliminary hearing.
9.
As regards the third dispute, the disagreement relates to whether an impediment
existed that prevented Allan Brewer Carías from exhausting the remedies of the domestic
jurisdiction, a matter related to the provisional nature of judges in Venezuela, as well as to
the impartiality and independence of that country’s judges and prosecutors.
10.
In relation to the fourth dispute, the disagreement refers to whether the said
requests for annulment should or could be decided even in the absence of the accused.
There is consensus between the parties that, in order to hold the preliminary hearing, the
accused must be present. Indeed, the representatives have indicated that “the preliminary
hearing cannot be held in the absence of the accused, because it is part of the trial” and
that “the presence of the accused is essential.” Based on the fact that the presence of Mr.
Brewer Carías was necessary in order to hold the preliminary hearing, the parties disagree
on whether the request for annulment that had been filed should be decided before the
preliminary hearing or, to the contrary, at the end of that procedural stage.
1.1
Position of the State
11.
In this regard, the State argued the existence of “[t]he remedies corresponding to
the intermediate stage established in the Organic Code of Criminal Procedure; also, the
exhaustion of the trial stage, if appropriate, as well as [the existence of] effective remedies,
[such as] the appeals against decisions, against final judgments, for reconsideration, for
cassation, [and] for review.” As possible remedies, the State indicated the remedies
2
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