167. With respect to the Commission’s argument that at the provincial level the alleged
victim was informed that his recourse was rejected by invoking a requisite not contemplated
in the law, while at the federal level he was informed that the interpretation of that norm was
not a federal matter, the Inter-American Court considers it necessary to clarify the nature of
the recourses: the remedy of cassation on the participation of judges who had a close relative
hearing connected cases was denied on the basis of the STJC’s interpretation of Article 52
that set out the sole reasons for recusal. This particular manner of applying the law does not
infringe Article 25 of the Convention, neither for its content, taking into account the standard
of the Court, nor for being different than the rationale for denying the REF. The requirements
of admissibility of the REF have as a purpose that the REF concerns a matter that is of federal
relevance to be heard by the SCJN, which did not occur in this case. Thus, the arguments
could validly be seen as dissimilar since the decision on cassation referred to the decision on
the merits of the matter and the decision on the REF referred only on the merits of admitting
a recourse, the effect of which would be to hear the case on the federal level.
168. It should be reiterated that, with respect to the REF that was denied because it did not
comply with the requisites of admissibility, the decision of the STJC was not contrary to the
Convention since it did not find sufficient elements to demonstrate the existence of a federal
issue in this specific case, taking into account the particular federal organization of the State
and especially since it had already exercised judicial control on various opportunities.
169. The Court, thus, considers that there has not been an infringement of Article 25 of the
Convention with respect to the recourses filed by the alleged victim to question the partiality
of the judges who had a close family member hearing related cases.
B.4. Regarding the recourses to question the actions of the members of the
Second Chamber who had intervened in the investigative phase in the same
cases
170. The Court notes that the alleged victim argued for recusal on the grounds of
prejudgment of the members of the Second Chamber in various cases included in the factual
framework.184 The claims and substantiations presented by the technical defense and the
arguments of the judges in these remedies are similar, as is the procedural path that the
recourses followed.
171. The Court noted that in the framework of one of the cases, “Romero Feris, Raúl
Rolando; Isetta, Jorge Eduardo; Magram, Manuel Alberto for Embezzlement; Ortega, Lucía
Placida for Embezzlement and use of a false document,” the alleged victim recused the
members of the Second Chamber for having intervened, as an appeals court, in all the
elements of the investigative stage and, particularly, in confirming the indictment and the
bringing to trial.185
172. The Chamber held that “the request of recusal must be declared inadmissible. Article
59 of the CPP, which governs the manner in which the recourse of recusal must be presented,
establishes that the party who files a request for recusal must state, among others, the
grounds on which it is based [Art. 52 of the Code]. The remedy filed by those who requested
the recusal [...] is inadmissible because it does not comply with this norm. To invoke a
justification that is not found as a cause of recusal in our procedural order is to fail to observe
that procedural norm […].”186
Cf. Recusal with cause of April 25, 2002 (evidence file, fs. 396 to 412); Recusal with cause of August 4,
2005 (evidence file, fs. 814 to 825) and Recusal with cause of August 6, 2001 (evidence file. fs. 1034 to 1062).
184
185
Cf. Recusal with cause of August 6, 2001 (evidence file, fs. 1034 to 1062).
186
Cf. Second Criminal Chamber, Resolution N° 356 of August 17, 2001 (evidence file, fs. 1063 to 1066).
33