Inter-american court of human rights ∗

Inter-American Court of Human Rights ^

Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela

Judgment of August 5, 2008

(Preliminary objection, merits, reparations and costs)

In the case of Apitz Barbera et al.

the Inter-American Court of Human Rights (hereinafter “the Inter-American Court”, “the Court” or “the Tribunal”), composed of the following judges:

Cecilia Medina Quiroga, President;

Sergio García Ramírez, Judge;

Manuel E. Ventura Robles, Judge;

Leonardo A. Franco, Judge;

Margarette May Macaulay, Judge, and

Rhadys Abreu Blondet, Judge;
also present,
Pablo Saavedra Alessandri, Secretary; and

Emilia Segares Rodríguez, Deputy Secretary,

pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) and Articles 29, 31, 53(2), 55, 56 and 58 of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure”), delivers the following Judgment.

I

Introduction of the Case and Subject of the Dispute

1. On November 29, 2006, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”) filed, pursuant to Articles 51 and 61 of the Convention, an application against the Bolivarian Republic of Venezuela (hereinafter “the State” or “Venezuela”), which originated this case. The first application was filed before the Commission on April 6, 2004. On March 8, 2005, the Commission delivered Report No. 24/05, whereby it declared the case admissible. Later, on July 20, 2006, the Commission issued the Report on the Merits No. 64/06, pursuant to Article 50 of the Convention, containing recommendations for the State. Said report was notified to the State on August 14, 2006. Having concluded that Venezuela had failed to adopt its recommendations, the Commission decided to submit the instant case to the jurisdiction of the Court. The Commission appointed Paulo Sérgio Pinheiro, Commissioner, and Santiago A. Canton, Executive Secretary, as delegates, and Ariel E. Dulitzky, Elizabeth Abi-Mershed, Débora Benchoam and Manuela Cuvi Rodríguez, as legal advisers.

2. The application is related to the removal from office of former judges of the Corte Primera de lo Contenciso Administrativo [First Court of Administrative Disputes] (hereinafter “the First Court”) Ana María Ruggeri Cova, Perkins Rocha Contreras and Juan Carlos Apitz Barbera on October 30, 2003, on the grounds that they had committed an inexcusable judicial error when they granted an amparo [protection of constitutional guarantees and rights] against an administrative act that had denied a request for protocolization of a land sale. The Commission asserted that the removal based on this error “is contrary to the principle of judicial independence and undermines the right of judges to decide freely in accordance with the law” and that they were removed “on the grounds that they had committed an alleged inexcusable judicial error when what existed was a reasonable and reasoned difference of possible legal interpretations concerning a particular procedural feature. This was a serious violation of their right to due process because of the lack of justification of the decision to remove them and their lack of access to any simple, swift, and effective recourse for obtaining a determination on the disciplinary measure to which they had been subjected.” Moreover, the Commission stated that the First Court had adopted decisions “that had generated adverse reactions among senior officials of the executive branch” and that “the indicia as a whole” supported the inference that the body that ordered the removal was not independent and impartial and that such removal resulted from a “misuse of power” originating in the “cause-and-effect relationship between the statements of the President of the Republic and senior government officials concerning the decisions that went against government interests and the disciplinary investigation that was initiated and that culminated in the victims' removal.”

3. In its application the Commission requested the Court to declare the State responsible for the violation of the rights enshrined in Articles 8 (right to a fair trial) and Article 25 (right to judicial protection) of the American Convention in conjunction with the duties established in Article 1(1) (obligation to respect rights) and Article 2 (obligation to adjust domestic legislation to human rights standards) thereof, to the detriment of the victims. Furthermore, it requested the Court to order certain measures of reparation.

4. On February 19, 2007, Mr. Héctor Faúndez Ledesma, representative of the alleged victims (hereinafter “the representative”), submitted a brief containing pleadings, motions and evidence (hereinafter “the brief containing pleadings and motions”) under Article 23 of the Rules of Procedure. Apart from the issues addressed by the Commission, the representative affirmed, inter alia, that the body that ordered the removal “limite[d] itself to execute an express or implied order of the President of the Republic” and that “the First Court judges […] were removed on strictly political grounds to pave the way for government-friendly judges and the political ideology of the current Government.” He also stated that the alleged victims “were submitted to an unprecedented procedure lacking all the guarantees of due process” and added that “such procedure is not the usual treatment conferred to other judges who have shown clear leanings toward the values of the political party now in office.” The representative finally concluded that, besides the articles mentioned by the Commission, the State had violated the rights provided for in Article 23 (Right to Participate in Government), 24 (Right to Equal Protection) and “the rights deriving from the representative democracy as a form of government (Article 29(c) of the Convention) and the Inter-American Democratic Charter in connection with the provisions of Article 29(d) of the Convention,” all in relation to the general obligations enshrined in Articles 1(1) and 2 thereof.

5. On April 23, 2007, the State submitted a brief containing a preliminary objection, an answer to the application and comments on the brief containing pleadings and motions (hereinafter the “answer to the application”). The State raised a preliminary objection based on the alleged failure to exhaust domestic remedies. On the other hand, the State pointed out that “the performance of the First Court […] had been highly questioned;” this being the reason why “it would be inaccurate to sustain that the petitioners had been removed for political reasons when the [removal of the judges] was based on the improper performance and negligence of the members of the First Court in public office.” The State appointed Ms. Mayerling Rojas Villasmil as Agent¹ and Mr. Enrique Sánchez as Deputy Agent.²

6. Pursuant to Article 37(4) of the Rules of Procedure, on June 20 and 26, 2007, the Commission and the representative, respectively, submitted their written arguments related to the preliminary objection raised by the State.