44
137. In the present case, the information available indicates that the Judicial Branch, in the
form of the SCJ, had a clear and public position in favor of the legality of the events associated with the
coup d’état, a position that was patently at variance with the interest manifested by the judges and
magistrates who, through various acts and statements, came out in opposition to the coup d’état.
138.
The position of the SCJ, calculated to validate the coup d’état, is confirmed by the
following: i) it was a protagonist in the ouster process of José Manuel Zelaya and the consummation of
the coup; ii) it issued a series of press releases in which it underscored the alleged legality of the events
associated with the apprehension of President Zelaya; iii) it held meetings with the de facto President
concerning decrees he issued, and iv) it denied all the petitions of amparo filed against actions on the
part of the de facto government and acted swiftly to grant amparo relief to those who claimed to have
been adversely affected by President Zelaya’s actions.
139. The Commission therefore considers that the SCJ does not pass the objectivity test of
impartiality to pass judgment on the alleged victims in the instant case, whose interests were patently at
odds with the interests the Court was serving.
140. Furthermore, the Commission notes that the alleged victims had no opportunity to
challenge the impartiality of the members of the SCJ, since the case on the disciplinary investigation
went directly to the Supreme Court from the Office of Personnel Management, which had
recommended their dismissal. The Court then proceeded to make its decision without following trial
procedure; as a result, the alleged victims were never given a procedural opportunity to challenge the
Supreme Court’s lack of impartiality. Here, the Inter-American Court has held that the right to challenge
judges serves a twofold purpose: on one hand, it works as a guarantee for the parties to the
proceedings, and on the other hand, it seeks to lend credibility to the role performed by the court.227 As
the Court wrote:
through challenging, the parties are given the right to move for the exclusion of a judge
when, regardless of the personal conduct observed by the questioned judge, there are
facts that can be proven or elements of conviction that may not warrant elimination of
grounds for misgivings or legitimate suspicions of partiality regarding his person, thus
preventing his decision from being seen as made by reasons alien to the Law and,
therefore, the operation of the Judicial System to appear distorted. Challenging should
not necessarily be seen as putting on trial the moral rectitude of the challenged official,
but rather as a tool to build trust in those turning to the State in quest for action by
bodies that are and appear to be impartial.228
141. The Commission therefore concludes that in the present case, the SCJ violated the
principle of impartiality in two respects: both through the Court’s involvement without the necessary
objective guarantees of impartiality, and through the impediment that made it impossible to bring a
challenge to guarantee this right.
227
I/A Court H.R. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Preliminary
Objection, Merits, Reparations and Costs. Judgment of August 5, 2008. Series C No 182, Paragraph 63.
228
I/A Court H.R. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Preliminary
Objection, Merits, Reparations and Costs. Judgment of August 5, 2008. Series C No 182, Paragraph 63.