in his removal from the position of Criminal Prosecutor. To this effect, and taking into
account the arguments of the parties and the Commission, this Court will proceed to
analyze the merits in the following order: 1) the right to a competent, independent, and
impartial judge; 2) the right to judicial protection; 3) political rights; and 4) the right to
job security.
VI-1
THE RIGHT TO A COMPETENT, INDEPENDENT, AND IMPARTIAL TRIBUNAL60
A. Motions by the parties and the Commission
52. With respect to the right to have a natural judge previously established in the law,
the Commission considered that, in the instant case, the rules for formation of the Jury
for the Impeachment of Magistrates were previously established in the law and the steps
for the election of its President were clearly described, so it considered that the right to
have a natural judge was not in controversy. Regarding the right to have an independent
judge, the Commission emphasized that although the mixed composition of the JEM,
being composed of eight members, four of whom are Senators and Representatives, is
problematic, in this specific case, it does not have sufficient information to indicate that
the members of the JEM have a subordinate or dependent relationship with the parties
in the process, or that they lacked guarantees of stability that would result in a lack of
independence.
53. As to the guarantee of impartiality of the judge, the Commission noted that Mr.
Nissen Pessolani alleged that the president of the JEM, as well as other member
representatives and senators, had an interest in getting involved and retaliating against
him for the corruption cases he was investigating, and that this was denounced before
the Supreme Court of Justice when the action of unconstitutionality was filed. However,
this argument was not addressed by the Supreme Court in its ruling. In addition, the
alleged victim filed a challenge against several members of the JEM and the sanctioning
process culminated on the same day that the alleged victim filed the indictment against
the president of the JEM in the context of a case under investigation. Thus, the
Commission considered that these aspects would be problematic because "they could
denote a situation of retaliation against a prosecutor for the investigations he was
carrying out against political authorities." However, it indicated that since there was no
record in the file of the appeal for reversal, or its resolution, it consequently did not have
the elements needed to pronounce on a violation of the guarantee of impartiality. In its
concluding observations and following the request made by the president of the Court
during the public hearing to clarify his allegations regarding lack of impartiality, the
Commission noted that the president of the JEM had in his possession automobiles that
had been reported stolen and were being investigated by Prosecutor Nissen. Thus, the
participation of the JEM president during the process, despite not signing the judgment,
implied a lack of independence and impartiality. It also considered that Mr. L.C.K., a
member of the JEM who did sign the judgment, was appointed by the President of the
Republic, who was also one of the main parties involved in a case investigated by
Prosecutor Nissen. In addition, he indicated that this member of the JEM was also under
investigation by the Public Prosecutor's Office, and therefore considered that his
participation also seriously violated the guarantee of impartiality.
54. The representative alleged that there were sufficient elements to consider the
partiality of the president and several members of the JEM. In particular, he alleged that
60
Article 8(1) of the American Convention.
17