Prosecutor Nissen Pessolani himself was prosecuting the president of the JEM for alleged
possession of a stolen car. Also, that the president of the JEM showed a "striking interest"
in knowing details of the investigation against C.P.O. just days before his impeachment
request against Prosecutor Nissen was filed. On the other hand, he alleged that the
president initiated the trial against Prosecutor Nissen Pessolani via a unipersonal order,
when this should have been done by the JEM plenary. He also claimed that several
members of the JEM should have been recused from the case, since they had a close
relationship with the then president of the Republic, who was the owner of a vehicle
whose ownership was being investigated by Prosecutor Pessolani. In addition, he
considered that another member of the JEM, L.C.K, also had a conflict of interest, as he
was also involved in the investigation for the possession of another stolen and laundered
car.
55. The State argued that, as recognized by the Commission, in the specific case,
there was a competent court that acted impartially and independently. As to the JEM
composition, he added that its two senators and two representatives necessarily must
be lawyers and although they are appointed by the respective legislative chambers, "they
exercise their duties in the JEM with total and absolute independence, not receiving any
mandate from these legislative bodies, nor from their authorities and members." He
added that, with respect to the composition of the JEM, the Commission argued there
was only a potential risk factor, which could not be interpreted as a violation per se by
the Paraguayan State. As to the impartiality of the members of the JEM, he stressed that
its president, who was the object of recusal, did not sign the judgment of April 7, 2003.
In his closing arguments, he stressed that the participation of the legislative body in the
composition of the JEM is not decisive, since half of the JEM is made up of members
appointed by the Supreme Court of Justice and by the Council of Magistrates, which also
includes practicing lawyers and faculty members of Law Schools.
B. Considerations of the Court
56. In order to proceed with the respective analysis, it is essential to recall the case
law of this Court regarding the specific guarantees to safeguard judicial independence
and their applicability to prosecutors (1). Subsequently, the arguments regarding the
right to a competent and independent judge will be analyzed (2), as well as the
guarantee of an impartial judge (3).
B.1. Specific guarantees to safeguard judicial independence and their
applicability to prosecutors due to the nature of their duties
57. This Court has already established that the guarantee of stability and irremovability
of judges, aimed at safeguarding their independence, is applicable to prosecutors based
on the nature of their responsibilities.61 In this regard, with respect to the specific role
of prosecutors, this Court has referred on several occasions to the need for States to
guarantee an independent and impartial investigation of human rights violations and, in
general, in the criminal sphere.62 The Court has emphasized that the authorities in
61
Cf. Case of Martínez Esquivia v. Colombia. Preliminary objections, Merits, and Reparations. Judgment
of October 6, 2020. Series C No. 412, paras. 95 and 96; Case of Casa Nina v. Peru. Preliminary Objections,
Merits, Reparations, and Costs. Judgment of November 24, 2020. Series C No. 419, paras. 69, and Case of
Cuya Lavy et al. v. Peru. Preliminary Objections, Merits, Reparations, and Costs. Judgment of September 28,
2021. Series C No. 438, para. 123.
62
Cfr. inter alia, Case of Bueno Alves v. Argentina. Merits, Reparations, and Costs. Judgment of May 11,
2007. Series C No. 164, para. 108; Case of Casa Nina v. Peru, supra, para. 70.
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