b ) That the ends for which the restriction has been established be legitimate, that is, that they
pursue “reasons of general interest” and do not stray from the “purpose for which (they) have
been established.” This teleological criterion, the analysis of which has not been requested here,
establishes control for abuse of power, and
c ) That such restrictions be established by laws and applied pursuant to them. (Underlining
added)
127.
In addition, in Advisory Opinion OC-8/87, it was considered:173
39.
The Court should also point out that since it is improper to suspend guarantees without
complying with the conditions referred to in the preceding paragraph, it follows that the specific
measures applicable to the rights or freedoms that have been suspended may also not violate these
general principles. Such violation would occur, for example, if the measures taken infringed the legal
regime of the state of emergency, if they lasted longer than the time limit specified, if they were
manifestly irrational, unnecessary or disproportionate, or if, in adopting them, there was a misuse or
abuse of power (underlining added).
128. In the case of Apitz Barbera et al. v. Venezuela, the ICourtHR alluded to this concept
when stating that:174
In sum, although in this case it has not been proved that the CFRSJ acted with abuse of power,
directly pressured by the Executive to dismiss the victims, the Court concludes that, owing to the
removal at will of the members of the CFRSJ, the due guarantee did not exist to ensure that the
pressure brought to bear on the First Court did not influence the decisions of the disciplinary organ
(underlining added).
E) Regarding the use of this mechanisms and the case law of the European Court of Human
Rights
129. Taking into account the conceptualization of the abuse of power, it is clear that in
order to determine whether this has been constituted in a specific case, it is necessary to
analyze the real purpose behind the act. Regarding this aspect, in paragraph 210 of the
Judgment, the ICourtHR indicated that:
Thus, in the instant case, the Court finds it necessary to examine the context in which the facts
surrounding the removal of the judges from office occurred, because this will be useful to understand
the reasons or grounds on which this decision was made. This is because the reason or purpose of a
specific decision of the State authorities is relevant for the legal analysis of a case, since a purpose or
reason that differs from the norm that grants the State authority the power to act, may reveal
whether the action can be considered an arbitrary act.175 In this regard, the Court bases itself on the
173
Advisory Opinion OC-8/87, of January 30, 1987 (Habeas Corpus in Emergency Situations (Arts. 27.2,
25(1) and 7.6 American Convention on Human Rights), requested by the Inter-American Commission on Human
Rights, para. 39.
174
Case of Apitz Barbera et al. (“First Contentious Administrative Court”) v. Venezuela. Preliminary
objection, merits, reparations and costs. Judgment of August 5, 2008. Series C No. 182, para. 147.
175
In this regard, the European Court of Human Rights has taken into account the real purpose or grounds
that the State authorities had when exercising their functions, in order to determine whether there had been a
violation of the European Convention on Human Rights. For example, in the Case of Gusinskiy v. Russia, the
European Court considered that the restriction of the victim’s detention authorized by Article 5.1(c) of the
European Convention, was not only applied to make him appear before the competent judicial authority, because it
was considered that there were reasonable indications that he had committed an offense, but also in order to
oblige him to sell his company to the State. In the Case of Cebotari v. Moldova, it declared that Article 18 of the
European Convention had been violated because the Government had not been able to convince the Court that it
had a reasonable suspicion to consider that the applicant had committed a crime, and the said Court concluded
that the real purpose of the criminal proceeding and the detention of the applicant was to pressure him and thus
prevent his company “Oferta Plus” from pursuing its application before the Court. Lastly, in the Case of Lutsenko
v. Ukraine, the European Court determined that the applicant’s detention, authorized by Article 5.1(c), had been
executed not only in order to ensure his appearance before the competent judicial authority, because there were
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