refer to decisions in which the alleged victims, as justices of the Supreme Court, ruled for or against challenges
to constitutionality.
70.
The Commission notes that this situation was mentioned in the decisions that ruled in favor
of the constitutionality challenges put forth by the alleged victims, which indicated: “Clearly, in the case sub
judice, putting Justices of the Supreme Court on trial for the opinions they expressed in the judgments specified
above has involved not only a grave error committed against the judicial immunity recognized in the
Constitution itself for all judges, but also (…) an attack on the independence of the judiciary.”
71.
Based on the foregoing, the Commission concludes that the Paraguayan State violated the right
to have well-reasoned decisions and the principle of legality in relation to the principle of judicial
independence, both established in Articles 8(1) and 9 of the American Convention, in connection with Articles
1(1) and 2 therein, to the detriment of Bonifacio Ríos Ávalos and Carlos Fernández Gadea.
6.
The right to appeal a judgment and the right to judicial protection in connection with
the principle of judicial independence
72.
The right to appeal a judgment is part of due process of law in a disciplinary proceeding60; it
is a fundamental guarantee whose purpose is to avoid a miscarriage of justice from becoming res judicata.61 As
for the scope of the right to appeal, both the IACHR and the Court have indicated that it implies that the appealed
decision is reviewed, both in its factual and legal aspects, by another and higher authority.62 The right to file an
appeal against a judgment must be guaranteed before the judgment becomes res judicata; it must be timely,
meaning resolved within a reasonable period of time; and it must be effective, in other words, it must provide
results or responses to the end that it was intended to serve. Moreover, the remedy must be accessible; hence,
the kind of complex formalities that would render this right illusory must not be required.63
73.
Moreover, the IACHR calls to the mind that the State has a general obligation to provide
effective judicial remedies to persons who claim they are victims of human rights violations (Article 25), and
these remedies must be substantiated in line with the rules of due process (Article 8(1)). For an effective
recourse to exist, it is not enough for it to be provided by law; rather, it must be truly appropriate for
establishing whether there has been a human rights violation and for providing whatever is necessary to
remedy it.64
74.
Finally, the IACHR notes that effective judicial protection implies the absence of external
pressures in the resolution of the remedies pursued. Protection against external pressures is a corollary of the
principle of judicial independence, by which “the judiciary shall decide matters before them impartially, on the
basis of facts and in accordance with the law, without any restrictions, improper influences, inducements,
pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”65
75.
In the case at hand, the IACHR notes that Resolution No. 122 issued by the Chamber of
Deputies on November 25, 2003, stated expressly that “resolutions issued by the Honorable Senate as a
Tribunal may not be appealed in any way.”
76.
In spite of that, the alleged victims filed lawsuits challenging the constitutionality of the
decision in the Constitutional Chamber of the Supreme Court. These were decided in their favor by that court
60 IACHR, Guarantees for the independence of justice operators: Towards strengthening access to justice and the rule of law in the Americas,
OEA/Ser.L/V/II.Doc.44, December 5, 2013, para. 235; I/A Court. H.R., Case of Vélez Loor v. Panama. Preliminary Objection, Merits,
Reparations and Costs. Judgment of November 23, 2010. Series C No. 218, para. 179.
61IACHR, Report No. 33/14, Case 12.820, Manfred Amrhein et al., Costa Rica. April 4, 2014, para. 186.
62IACHR, Report No. 33/14, Case 12.820, Manfred Amrhein et al., Costa Rica. April 4, 2014, para. 186.
63IACHR, Report No. 33/14, Case 12.820, Manfred Amrhein et al., Costa Rica. April 4, 2014, paras. 186 and following.
64I/A Court. H.R., 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. 125; I/A Court. H.R., Case of the Yakye Axa Indigenous Community v.
Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005. Serie C No. 125, para. 61; I/A Court. H.R., Case of the “Five Pensioners”
v. Peru. Merits, Reparations and Costs. Judgment of February 28, 2003. Series C No. 98, para. 136.
65 United Nations Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, held in Milan, Italy, from August 26 to September 6, 1985.
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