filed two requests for the absolute nullity of the proceedings. The first, on October 4, 2005 21
— at the “preparatory stage” — was not even processed and, even less, decided. The
second request for annulment, dated November 8, 2005, 22 filed in response to the
prosecutor’s indictment (the moment at which the “intermediate stage” commences)
contested, among other matters, the fact that the first request for annulment had not been
processed and decided. This second request for annulment was not processed or decided
either, as can be seen from the case file. 23
41.
Thus it is evident that these requests for annulment, which, at that procedural stage,
represented the appropriate and effective remedy in light of the Inter-American Court’s
consistent case law, were neither processed nor decided. All things considered, suggesting
that it was necessary to wait until the preliminary hearing and the whole of the proceedings
had been held before contesting the first instance judgment constitutes an unwarranted
delay from the point of view of international law, if it is taken into account that more than
seven years have passed.
42.
As the representatives indicated — an opinion that we share — the request for
annulment represents, by its nature, “the remedy of amparo in criminal procedural
matters”; therefore “if a decision on the remedy of amparo has to await the preliminary
hearing, which can be delayed indefinitely, […] the remedy could not be considered simple
and prompt.” In this regard, as can be seen in the case file, a judgment of the Venezuelan
Constitutional Chamber of February 6, 2003, indicates that: 24
[… T]he plaintiff had a pre-existing procedural measures, which was just as, or more,
appropriate, expedite, brief and simple as the application for amparo, which was the
request for a declaration of nullity of the decision against which he has exercised the
present protective action pursuant to article 212 of the said Code; a claim that must be
decided, even as a mere matter of law, by a ruling that must be issued within the threeday period established in article 194 (now 177) of the procedural code. It is worth noting
that, in temporal terms, this request for a declaration of absolute nullity should have been
substantiated and decided within a time frame that is ostensibly less than the one
established by law in relation to the amparo procedure (underlining added).
43.
In other words, the application for a declaration of the absolute nullity of all the
proceedings in cases of violation of due process that involve fundamental rights, as in the
case of amparo in criminal matters, must, in accordance with Article 25 of the American
Convention, be an effective, simple and prompt remedy before the competent judges or
courts, that provides protection against acts that violate the fundamental rights recognized
by the Constitution, the law or the Convention.
44.
Based on the foregoing considerations, it is clear, in our opinion, that the requests
for annulment filed by Mr. Brewer’s representatives in the domestic criminal proceedings
21
The appeal for a declaration of nullity of all the investigation proceedings was signed on October 4, 2005,
and, according to the information in the case file, “filed yesterday, October 6, before the 25th Supervisory Judge”; it
is stamped “received” on October 7 that year. Cf. File of annexes to the answering brief of the State, folio 1407.
22
According to the case file, the second appeal for annulment was signed on November 8, 2005, and it was
decided “to open a new exhibit to be entitled Thirtieth (30th) EXHIBIT” of “Two hundred and seventy-two (272)
folios, including this decision,” by a ruling of the Twenty-fifth First Instance Supervisory Court of the Criminal
Judicial Circuit of the Metropolitan Area of Caracas. Cf. file of annexes to the State’s answering brief, folio 14675.
23
The State provided the Inter-American Court with a copy of the entire case file of the domestic criminal
proceedings. It can be seen that there is no judicial decision or order that even admits for processing the briefs on
the absolute nullity of the proceedings filed by the representatives of the presumed victims.
24
Transcript of the relevant part in para. 125 of the Judgment.
9
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