11
36.
This argument was considered in a decision made by the then President of the Court
on October 12, 2007 (supra para. 9) by which it deemed pertinent to determine, inter alia,
and “in light of the evidence of the trial available at that moment, […] not to accept […] the
disqualification of Judges Cecilia Medina Quiroga and Diego García-Sayán in the hearing of
the case of […] Perozo et al. v. Venezuela and exercise the power vested in it to submit the
motion to the Full Court, under the terms of Article 19(2) of the Court’s Statute”.
37.
The State’s argument was considered by the Court in a decision of October 18, 2007
(supra para. 9), in which it was decided that such argument did not constitute per se a
preliminary objection. It was, however, considered appropriate to take a decision in that
regard as a matter precedent that need to be solved in order to continue hearing the case.
Based on a series of considerations stated in the Order and in light of the criteria of the
Court, the Tribunal considered the State’s request to be contrary to law. Nevertheless, the
Court analyzed a request for disqualification made by Judge García-Sayán, in relation to his
wish of “not affecting, in any way, the perception of absolute impartiality of the Tribunal and
in order not to focus the Tribunal's attention on matters other than those related to the
consideration of the merits of those cases under its jurisdiction". The Court deemed
reasonable to admit such argument and accepted the excuse of Judge García-Sayán.25 That
is to say, the State’s argument, which is not in the nature of being a preliminary objection,
has been already decided by the Court in said Order. Therefore, the third preliminary
objection raised by the State is inadmissible.
D) FOURTH PRELIMINARY OBJECTION
“Failure to exhaust domestic remedies”
38.
The State asserted that even though the alleged victims have used the remedies
available pursuant to the Venezuelan legal system, by turning to the Public Prosecutor to
submit the corresponding complaints for the alleged violations of their constitutional rights,
said complaints are being processed at several stages; therefore the Venezuelan tribunals
are responsible for delivering, in due time, the corresponding decision. The State alleged
that it has expressly ordered, in all cases where workers of the television station
Globovisión appear as possible victims, the corresponding investigations on the facts that
have allegedly led to the commission of punishable acts. The State acknowledged that it is
the State’s duty to specify the domestic remedies that need to be exhausted and pointed
out, in that regard, that according to the terms of the Code of Criminal Procedure of
Venezuela, the alleged victims of illegal criminal acts have, at their disposal, a set of
procedural remedies that may be used when they deem that the performance of the Public
Prosecutors' Office constitute a violation of their interests or a non-compliance with its
constitutional and legal duty. Specially, the State referred to the available remedies and
prerequisites to question the decisions of shelving the prosecutor's case and ordering the
stay of proceeding and it further argued that none of the alleged victims have filed any
remedy; therefore, it considers that the domestic remedies have not been exhausted and
requests the Court to reject the application.
39.
Afterwards, in the final written arguments, the State further indicated that, in the
cases of alleged commission of verbal attacks (acts of threats, defamation and slander) and
injuries, the victim must directly turn to a tribunal and bring the corresponding charges,
which has not been done by the victims. Besides, the State argued that, in the alleged case
that personnel of Globovisión would have not had access to the coverage of official acts,
25
By accepting the excuse presented by Judge Diego García-Sayán, the Court also decided to continue
hearing the instant case with a Tribunal composed of the members that are today delivering this Judgment. Cf.
Order issued by the Inter-American Court of Human Rights of October 18, 2007.