17
by law, it would be a violation to distract the individual from the court originally
assigned to hear the case.
78.
In the case at hand, Mr. Barreto Leiva did not enjoy any kind of privilege;
therefore, in principle, he should be tried by an ordinary criminal court of first
instance. The members of the Congress, who were also accused with the victim,
should be tried by the CSPA (supra para. 70). Finally, the competent court to try the
President of the Republic was the SCJ (supra para. 69). All of these tribunals were
established by the Venezuelan law prior to the facts at issue.
79.
It falls upon the law to establish the rules for the operation of connectivity, in
order to define which court should hear which related cases.
80.
There is no special law- just as the Commission claims- establishing that if the
President of the Republic is accused, together with an individual who does not enjoy
any privilege, of a crime punishable by the Law on Public Assets, the case shall be
heard by the President's competent court. Nevertheless, this does not constitute an
obstacle to the application of the general principle, contemplated by the Venezuelan
legislation, according to which only one of the competent courts will try crimes
related to each other, being competent to hear all of them. In this case, this would
lead to two possible situations: that the President be tried by a tribunal that is
competent to try the individual who does not enjoy any privilege, or vice versa.
Logically, the first situation is inadmissible, since it is not in line with the purposes
that justify the institution of the privilege. The second situation respects the principle
of connection as well as the public interest guaranteed by the judicial privilege. This
was the interpretation made by the SCJ in the instant case (supra para. 73) and this
Court does not find sufficient reasons to depart from the criterion adopted by the
highest Venezuelan tribunal.
81.
Based on the foregoing, the Court declares that the State did not violate the
right to be tried by a competent tribunal, enshrined in Article 8(1) of the Convention.
7.
right to appeal a judgment (Article 8(2)(h)
82.
The Commission emphasized that, in the instant case, “one of the
consequences of vesting the victim with a procedural privilege […], was that the
victim had no legal avenue to appeal the judgment against him, even though the
Law for Safeguarding Public Assets, established that he should have been tried in
first instance by the Superior Court for Safeguarding Public Assets and, in second
instance, by the Supreme Court of Justice”. The representative agreed with the
Commission.
83.
The State indicated that the United Nations Human Rights Committee had
pointed out "in case N°64 of 1979 against Colombia" that "for the determination of
the right to review by a higher court, it is necessary to take into account the
procedure established by the laws and not the right to appeal itself”. In a similar
sense, the State quoted a decision issued by the “European (sic) Committee on
Human Rights" in the case of Duilio Fanalio, in which it concluded that "the case may
only be tried in sole instance by the Constitutional Court inasmuch as it involves a
procedure related to accusations against ministers”.
84.
The first matter referred to by the State is the case of Consuelo Salgar de
Montejo against Colombia, decided over by the United Nations Human Rights
Committee (hereinafter, the “Committee”) regarding Article 14(5) of the