B.
The right to a competent, independent, and impartial tribunal (Article 8.1 of the
Convention)68
1.
Regarding the right to a competent, independent tribunal
96.
Article 8(1) of the Convention recognizes the right to a trial by “a competent ... tribunal,
previously established by law.” Thus, people “have the right to be tried, in general, by a competent tribunal, in
accordance with legally established procedures.” The State should not create courts that do not apply duly
established procedural norms in substitution of the jurisdiction that would normally correspond to the
[regular] courts.”69 The purpose of this is to avoid people being tried by special or ad hoc tribunals.70
97.
States are entitled to design and organize their internal disciplinary proceedings. Such
processes should be applied in accordance with previously established procedures that indicates the
appropriate authorities and the procedural rules.71 That guarantee is satisfied when the disciplinary authority
originates from a rule established in advance of the proceeding,72 and correlatively, that rule is broken when
the disciplinary body lacks the competence recognized by law.73
98.
The Commission has stated that an appropriate procedure for appointing members of the
judiciary, one that is transparent and that guarantees the equality of candidates, is a fundamental guarantee
for judicial independence.74 Precisely in light of the important function performed by the organs entrusted
with the processes of appointment, promotion, and disciplinary sanctions, and the objectivity required for
their activity, the Commission has considered that it is advisable for the states to establish an independent
organ whose functions include the appointment, promotion, and removal of judges.75
99.
As regards the right to a competent tribunal previously established by law, the Commission
notes that the section on proven facts sets out both the legal framework applicable to the constitution of the
Impeachment Jury, and the ultimate composition of the Jury in Mr. Rico's case. In that connection, the
Commission finds that in the instant case the rules on composition were previously established by law.
Furthermore, those rules clearly describe the steps for its formation, as regards both its president and
members of the Senate and lawyers. The Commission observes that it involves public drawings of lots from
lists of individuals who meet certain objective requirements. In that regard, while it would be desirable for
officials charged with exercising punitive functions to be appointed in advance, the constitution of a collegiate
body to hear a specific case does not necessarily entail a violation of the right to a competent tribunal,
provided that there are pre-existing objective rules on its composition and those rules are observed in each
specific case, neither of which is in dispute.
68Article 8(1) of the Convention states: Every person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a
criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
69I/A Court H.R., Case of Barreto Leiva v. Venezuela, Merits, Reparations, and Costs, Judgment of November 17, 2009. Series C
No. 206, par. 75.
70I/A Court H.R., Case of Barreto Leiva v. Venezuela, Merits, Reparations, and Costs, Judgment of November 17, 2009. Series C
No. 206, par. 75.
71See also, IACHR, Guarantees for the Independence of Justice Operators: Toward Strengthening Access to Justice and the Rule of
Law in the Americas, OEA/Ser.L/V/II Doc.44, December 5, 2013, par. 187.
72I/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, par. 53.
73I/A Court H.R., Case of López Lone et al. v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of
October 5, 2015, Series C No. 302, par. 221.
74IACHR,
75See
Democracy and Human Rights in Venezuela, 2009, par. 187.
IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, par. 374.