20
different to those included in the application, so long as they refer to facts already
included in the application, which constitutes the factual framework of the
proceeding.50
95.
In the case at hand, the arguments of the representatives are based on the
following facts described by the Commission in its application:
On January 24, 1996, the television channel Televen broadcast an interview with the then
President of the Republic Rafael Caldera, who said: “It would be to defraud the citizens to
give Carlos Andrés Pérez a presidential pardon […] it would be to ignore the judgment
rendered by the Supreme Court of Justice which is appropriate […]”.
Before a judgment was issued, draft documents from the office of the Justice Luis Manuel
Palís were published in the mass media. There were also interviews given based on those
documents and it was reported that all judges had submitted their observations.
[…]
On June 14, 1996, the newspaper El Nuevo País, transcribed a conversation between then
Senator Virgilio Ávila Vivas and former President Carlos Andrés Pérez, which makes
reference to a conversation that the senator had with the judge responsible for the
definitive decision of the SCJ, with regard to the introduction of possible mitigating
circumstances, among other things.
On September 3, 1997, an Article written by Edgar Lopez entitled, “Congress will cite SCJ
judges who plan to run for reelection” was published in the political section of the El
Nacional newspaper. This Article stated, among other things, that “Senator Arístides
Beaujón, chairman of the committee in question, brought to mind that the nine-year-term
to which these five judges had been elected elapsed on May 1995. Since then, the renewal
of the terms of three-fourths of the members of the SCJ had been “sufficiently justified,”
among other reasons, admitted Beaujón, because it was considered inconvenient to alter
the balance of the political forces before the conclusion of the trial of former President
Carlos Andrés Pérez in the case of the 250 million Bolivars secret account".
96.
The Commission did not present arguments about the evidence - which
consisted, basically, of press releases- that would allow the Tribunal to understand
how such facts were considered proven. Also, the Commission did not claim any legal
consequence in such regard. In its report on Admissibility and Merits (supra note 1),
the Commission stated that "the petitioner did not furnish sufficient evidence nor
argue, in detail, the reasons why the independence and impartiality of the [SCJ]
would be impaired in the specific case so as to build up truly external pressures
capable of producing an effect on the final decision”.
97.
Before the Court, the representative did not present evidence additional to
the evidence duly furnished before the Commission. The representative limited to
assert that there existed “pressures” over the SCJ and to mention, in a general way,
that the procedure had “political motives”.
98.
The Inter-American Court has established that impartiality means that the
judge, who intervenes in a particular matter, must come up with the facts of the case
without any type of bias, subjectively speaking, and furthermore, offering sufficient
guarantees, of an objective nature, that would allow to cast any doubt that the
defendant or the community may harbor about impartiality. Personal or subjective
impartiality is presumed, unless evidence to the contrary. In its turn, the so-called
objective approach test consists in determining whether the judge in question offered
50
Cf. Case of the “Five Pensioners” V. Perú. Merits, Reparations and Costs. Judgment of February
28, 2003. Series C No. 98, para. 155; Case of Kawas Fernández V. Honduras, supra note 6, para. 127;
and Case of Reverón Trujillo V. Bolivia, supra note 21, para. 135.