admissibility principles and criteria for domestic remedies of a judicial or any other nature.
Thus, although domestic recourses must be available to the interested parties and must result
in an effective and substantiated decision on the issue raised, as well as potentially providing
adequate reparation, domestic bodies and courts need not decide on the merits of the matter
presented to them in every case without first verifying the formal procedural criteria relating
to the admissibbility and legitimacy of the specific recourse.155
137. The Commission considered in this case that the State is responsible for violating
Article 25(1) of the Convention. To substantiate its reasoning, it took into account that, since
1999, four criminal proceedings had been brought against the alleged victim, which were
presented before the First Magistrate and to the Second Chamber. They were subsequently
heard by the STJC and the CSJN because of the remedies filed before those two bodies.
138. In those cases, the alleged victim filed a series of recourses that questioned the
competence, independence and impartiality of the judicial authorities; specifically, the
appointment of the Examining Magistrate; the order that appointed temporary judges of the
Chamber and of the Superior Court; the impartiality of judges of the Chamber who were
related by blood and who had heard connected cases, and the actions of members of the
Chamber who had heard the procedural matters. The compatibility of these recourses with
the factual circumstances will now be analyzed.
B.1. Regarding the remedies filed on the appointment of the First Magistrate
139. The alleged victim challenged the appointment of Magistrate M.P. with two types of
remedies in the different cases included in the factual framework: the remedy of nullity with
a subsidiary appeal against all the orders and procedural acts of that magistrate and the filing
of the exception of lack of jurisdiction and competence.156
140. The Court notes that, although each filing had a distinct procedural development, the
arguments and the rationales offered by the alleged victim and by the judges in each of the
cases are similar.
141. In one of the cases included in the factual framework, the alleged victim filed a remedy
of nullity with a subsidiary appeal before the First Magistrate. He argued that the judge was
appointed irregularly because he placed ninth in the competition for the post. The alleged
victim added that the magistrate was assigned, ignoring the rules of connectivity and rotation,
to all the cases against lodged him.157
142.
The First Magistrate rejected those arguments, stating that:
“[…] the authority to decide any one of the three aforementioned questions would appear to be
beyond the Powers that the law confers on an Examining Magistrate. In the first place, with respect
to the appointment of a judge, it is a matter of acts outside the process that are not “procedural
acts.” In the second place, the appointment of judges is the exclusive competence of the Political
Authorities, whose regular exercise is overseen by means of other instruments, such as those
dealing with constitutional procedural law; for example, the autonomous action of
Cf. Case of the Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru. Preliminary Objections,
Merits, Reparations and Costs. Judgment of November 24, 2006. Series C No. 158, para. 126 and Case of the
Dismissed Employees of Petroperú et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment
of November 23, 2017. Series C No. 344, para. 153.
155
Cf. Regarding the motions of nullity: motion of nullity with a subsidiary appeal of July 27, 2000 (evidence
file, fs. 236 to 251); motion of nullity with a subsidiary appeal of July 27, 2000 (evidence file, fs. 726 to 740); motion
of absolute nullity of February 6, 2002 (evidence file, fs. 1203 to 1210) and motion of nullity with a subsidiary appeal
of July 24, 2000 (evidence file, fs. 1462 to 1477). Regarding the exceptions: motion of exception of May 24, 2001
(evidence file, fs. 257 to 291); motion of exception of September 7, 2001 (evidence file, fs. 746 to 775) and motion
of exception of March 9, 2001 (evidence file, fs. 1010 to 1033).
156
157
Cf. Motion of nullity of June 27, 2000 (evidence file, fs. 236 to 251).
28