134. Thus, the European Court’s case law cited above allows it to be inferred that the
analysis of the real grounds for a decision are related to proving the existence of an abuse
in a specific case. In the Judgment that prompts this opinion, the ICourtHR took into
account, with particular emphasis, the context of this case, as well as a series of
irregularities that allegedly occurred in the session of November 25, 2004.177
135. In addition, the ICourtHR took into consideration irregularities that had occurred in
the impeachment proceedings during the sessions of December 1 and 8, 2004, the latter
when a new vote was taken on the impeachment of the judges.178 All the above allowed the
Inter-American Court to conclude that:179
Taking into account the preceding considerations concerning the sessions of Congress of November
25, December 1 and December 8, 2004, in the instant case the Court observes that the judges were
removed by a resolution of the National Congress, which lacked competence in this regard […], by a
decision without any legal grounds […], and without being heard […]. Furthermore, a significant
number of irregularities occurred during the impeachment proceedings: these proceedings were based
on decisions relating to control of constitutionality adopted by the judges, which was prohibited by
domestic law […]. As indicated previously […], the resolution deciding the termination of the judges
was the result of a political alliance put together to create a Constitutional Tribunal that was aligned
with the political majority that existed at that time and to prevent criminal proceedings against the
President in power and a former President. It is worth underscoring that, the same day that the
termination of the judges was declared, the judges who would replace them were appointed.
Therefore, the apparent legality and justification of these decisions concealed the intention of a
parliamentary majority to exercise greater control over the Constitutional Tribunal and to facilitate the
termination of the justices of the Supreme Court. The Court has verified that the resolutions of
Congress were not adopted based on the exclusive assessment of specific factual information and in
order to ensure proper compliance with the laws in force, but sought a very different end related to an
abuse of power aimed at obtaining control of the judicial function by different procedures; in this case,
the termination and the impeachment proceedings. This resulted in a destabilization of both the
Judiciary and the country in general […] and intensified the political crisis, with the negative effects
that this entailed for the protection of the rights of the population. Consequently, the Court
emphasizes that these elements allow it to affirm that a collective and arbitrary termination of judges
is unacceptable, owing to the negative impact that this has on the institutional aspect of judicial
independence. (Underlining added)
136. In addition to the provisions of the case law of the Strasbourg Court, it is worth
mentioning also the Judgment of the Court of First Instance of the European Communities of
25 February 1999, in the matter of Giannini v. Commission in which it was concluded that
there was “objective, relevant and consistent evidence” indicating that the “contested
measures [of the Commission of the European Communities] had been adopted with a view
to achieving a purpose other than that of complying in good faith” with a judgment, and
that the Commission had committed an “abuse of power.”180
137. Thus, from my perspective, I consider that once it had been concluded in the
Judgment that there had been an “abuse of power,” and taking into account that the
impeachments clearly involved the imposing of a sanction, it was even more necessary to
analyze in detail the way in which the type of arbitrary acts that occurred during the said
punitive proceeding entailed the violation of Article 9 of the American Convention. And this
should have been done, taking into account, also, the State’s explicit acknowledgement
that the National Congress did not make a legal and constitutional analysis of the grounds
177
Paras. 210 to 214 of the Judgment.
178
Paras. 215 to 218 of the Judgment.
179
Para. 219 of the Judgment.
180
Judgment of the Court of First Instance of the European Communities
Giannini/Commission (Case C-153/99 P), European Court Reports, Page I-02891.
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