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Venezuela: Independence and impartiality; Judicial integrity and accountability

Respect for the rule of law is founded on public trust of the judiciary and, to maintain that trust, judges must uphold the highest standards of independence, impartiality and integrity, and must be accountable to those standards.

The guarantee of judicial decisions by independent tribunals means that judges must be free to “decide matters before them impartially, on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason”.[1] Thus, both state actors and non-state actors alike must respect the independence of the judiciary and refrain from action aimed at improperly influencing members of the judiciary, undermining their independence and impartiality. While respecting the hierarchy between the courts of first instance and higher courts, international standards clarify that other judges must also respect the independence of their colleagues within the scope of the exercise of judicial functions: “No one must give or attempt to give the judge orders or instructions of any kind, that may influence the judicial decisions of the judge, except, where applicable, the opinion in a particular case given on appeal by the higher courts.”[2] 

In the course of the exercise of judicial functions, judges must be impartial, and be seen to be impartial. Judges “must not allow their judgment to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other.” Further, even where an individual judge might in fact be able to ignore a personal relationship to one of the parties to a case, he or she should step aside from the case to protect against an apprehension of bias: “the tribunal must also appear to a reasonable observer to be impartial.[3] The Statute of the Iberoamerican Judge pointedly states that “[t]he impartiality of the judge has to be true, real and obvious for the citizens”.[4]

Judges must also ensure that their conduct is above reproach in the view of a reasonable observer. They must avoid impropriety and the appearance of impropriety in all their activities. Their behaviour must reinforce the people’s confidence in the integrity of the judiciary.[5] 

The Statute of the Iberoamerican Judge, under the heading of “Judicial Ethics” lists a number of obligations of judges, such as, to try to give justice in conditions of efficiency, quality, accessibility and transparency, in respect of the dignity of the person demanding the service;[6] to act as a guarantor of the rights of the parties through enforcing due process principles;[7] to resolve cases within a reasonable delay;[8] and to keep strict confidence and professional secret.[9] 

A judicial code of conduct, drafted primarily by judges and members of the legal profession and consistent with international standards,[10] can help to safeguard judicial integrity and protect against conflicts of interest.[11] Pursuant to international standards, such judicial codes of conduct, which should be enshrined in the law, should serve as the basis for the determination of cases of alleged judicial misconduct within a fair disciplinary system.[12]

Complaints about judicial misconduct must be processed expeditiously and fairly under an appropriate procedure that is subject to independent review.[13] The judge in question has the right to a fair hearing before an independent and impartial body. The body responsible for discipline of judges should be independent of the executive,[14] plural and composed mainly (if not solely) of judges and members of the legal profession.[15] The judge’s rights to a fair proceeding, including to notice of the accusations against him or her, to adequate time and facilities to prepare and present a defence including through counsel, to challenge the evidence against him or her and to present witnesses must be respected. Decisions must be based on established standards of judicial conduct, and sanctions must be proportionate. Decisions to suspend or remove a judge must be limited to cases in which the incapacity or behaviour of a judge renders the individual unfit to discharge his or her judicial duties.[16] Decisions and sanctions in disciplinary proceedings should be subject to independent judicial review (although this may not apply to decisions of the highest court or the legislature in impeachment proceedings).[17] 

The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reason given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary.[18] Further, the removal of judge at will “fosters an objective doubt in the observer about the real possibility of judges to decide specific disputes without fear of reprisal.”[19] 

In order to safeguard the independence of the judiciary, individual judges should also enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.[20]

 

The Constitution of Venezuela guarantees that judges may only be removed or suspended by means of procedures previously established by the law.

The Judicial Code of Ethics provides the ethical principles to guide the conduct of judges, the disciplinary procedures to guarantee their independence,[21] and it guarantees the impartiality of the disciplinary bodies in charge of conducting these proceedings.

The Constitution also recognizes personal liability of judges for “unjustified omissions, delay or errors, for substantial failure to observe the rules of procedure, for denial of justice, for partiality and for the criminal offences of bribery[22] and prevarication[23] in office.”[24]

Before the adoption of the Constitution in 1999, the Judicial Council was in charge of the disciplinary procedure against judges. The Organic Law of the Judicial Council (OLJC) established the Disciplinary Chamber of the Council, competent to decide disciplinary procedures started against judges.[25] The OLJC also established the Tribunals Inspectorate in charge of the inspection of tribunals, regarding the efficiency, performance and behaviour of judges,[26] but not concerning the judicial decisions taken by them or the grounds thereof.[27]

The OLJC also prescribed the procedure for the removal of judges.[28] Even though these procedures were of an administrative nature and the disciplinary bodies were not composed of judges,[29] the right to an independent judicial review of the disciplinary sanctions was guaranteed by way of an appeal to the former Administrative Chamber of the Supreme Court of Justice.[30]

With the adoption of the new Constitution, the Judicial Council ceased to exist and all of its competences were delegated to the Supreme Tribunal of Justice. The procedure provided by the former OLJC was also abrogated after the adoption of the Judicial Code of Ethics.[31]

The 1999 Constitution provides for judicial discipline by disciplinary tribunals, and foresees the creation of a Judicial Code of Conduct that contains the disciplinary regime for judges and guarantees for due process of law during these proceedings.[32] Upon the adoption of the Constitution, the Commission for the Functioning and Restructuring of the Judicial System (CFRJS) assumed all the disciplinary competences previously held by the Judicial Council. These arrangements were supposed to be temporary, pending the National Assembly’s adoption of a law organizing the judicial power within one year after the adoption of the Constitution.[33] Contrary to this provision, the Legislature did not promulgate said law, and the CFRJS exercised disciplinary functions until 2010.

In 2008, the Inter-American Court of Human Rights ordered Venezuela to “adopt […] measures as may be required to pass the Code of Ethics within the term of one year as from notice of this Judgment”.[34] The reasoning behind this order was the fact that for more than nine years, a provisional body, set up on a discretionary basis, was given power to remove judges, resulting in a situation where guarantees for avoiding external pressure and undue influence on judicial decisions were lacking.[35]

The judgment of the Inter-American Court led to the adoption of the Judicial Code of Ethics, which entered into force in 2009. The Judicial Code of Ethics establishes the disciplinary regime for “every judge … in exercise of permanent, temporary, occasional, accidental or provisional jurisdiction.”[36] The Code also provides the procedures, competent bodies and grounds for sanctioning disciplinary offences committed by all judges in the fulfilment of their duties.[37]

The sanctions prescribed by the Judicial Code of Ethics are:[38]

  • Written warnings;
  • Temporary suspension; and,
  • Removal.

The Judicial Code of Ethics specifies that the Disciplinary Tribunal and the Disciplinary Court are the competent bodies in charge of sanctioning judges in accordance with proceedings established in the Judicial Code of Ethics.[39]

The Disciplinary Tribunal is the body in charge of exercising the disciplinary jurisdiction in the first instance,[40] while the Disciplinary Court acts as a higher court.[41] Both are composed of three titular judges and three substitute judges[42] elected by the Judicial Electoral Colleges[43] that are composed as follows:[44]

  • A representative of the judicial branch;
  • A representative of the Attorney General’s Office;
  • A representative of the Public Defenders Office;
  • A representative of lawyers authorized to practice law; and,
  • Ten delegates of the Communal Councils.

The list of candidates for the disciplinary bodies[45] that is presented to the Judicial Electoral College for selection is compiled by the Judicial Nominations Committee (JNC). Each of the candidates must comply with the requirements provided in the Code.[46] In particular, they must:

  • have previously exercised the legal profession for at least ten years and have a postgraduate degree in law; or,
  • have taught law in the university for the same period of time; or,
  • have been part of the judicial career for at least ten years.[47]

The Organic Law of the Supreme Tribunal of Justice specifies that the JNC is an advisory body of the National Assembly, and it is funded through the National Assembly budget.[48] In addition to composing the list of candidates for election (by the Judicial Electoral Colleges) of members of the Disciplinary Tribunals and Courts, the JNC also serves as an advisory committee of the Judicial Power for the election of candidates to the STJ and to the Judicial Electoral Colleges.

The Constitution provides that the JNC should be composed of representatives of all the sectors of society.[49] The JNC is composed of eleven members: five active members of the Assembly, and six members of the “other sectors of society” (which are not defined). The members of the JNC are elected and appointed by simple majority of the National Assembly.[50]

This institutional set-up endangers the system of checks and balances by placing too much weight on the decisions by the Legislative Power concerning appointment of members to the judiciary’s disciplinary bodies.

Further, in practice there are no open recruitments to fill judicial vacancies, judges do not enjoy security of tenure, they are not subject to a code of ethics, and may be removed at will without a formal proceeding being followed.

Even though the Constitution and the law, in particular the Judicial Code of Ethics, prescribe procedures for the appointment and removal of judges, as of August 2014 it remains a common practice to remove temporary judges through a simple communication informing them that their appointment is “no longer in effect,”[51] without mention of any grounds of misconduct committed or a fair procedure, adversely affecting their independence. Moreover, in 2013 the Constitutional Chamber of the STJ provisionally suspended the application of the Code of Ethics to the Justices of the STJ, as well as the “temporary, casual, accidental and provisional”[52] judges, and held that the Judicial Commission of the STJ is competent to sanction and remove “temporary, casual, accidental and provisional” judges, limiting the competences given to the disciplinary bodies of the judiciary by the Constitution and the law. Accordingly, temporary and provisional judges, who constitute the vast majority of judges in Venezuela, are not protected, as no formal procedure is followed for their appointment, discipline or removal.

 

Footnotes    (↵ returns to text)

  1. 1. UN Basic Principles on the Independence of the Judiciary, Principles 1-7, in particular ”Principle

    The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

    Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Articles 2-8; Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, ”Value

    Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.

    Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, Article 1-4.
  2. 2. Statute of the Iberoamerican Judge, Adopted by the VI Iberoamerican Summit of President of Supreme Courts and Tribunals of Justice (2001), Article 4;

    In the exercise of the jurisdiction, the judges are not submitted to superior judicial authorities, but it does not affect the power of the said authorities to revise the jurisdictional decisions through the resources legally established, nor
    the powers that each national system confers to the jurisprudence emanating from the Supreme Courts and Tribunals.

     Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, ”Article

    No one must give or attempt to give the judge orders or instructions of any kind, that may influence the judicial decisions of the judge, except, where applicable, the opinion in a particular case given on appeal by the higher courts.

     Venice Commission, Report on the Independence of the Judicial System, Part I: the Independence of Judges, CDL-AD(2010)004, para. 72.

    To sum up, the Venice Commission underlines that the principle of internal judicial independence means that the independence of each individual judge is incompatible with a relationship of subordination of judges in their judicial decision-making activity.

  3. 3. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), ”para.

    The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.

    UN Basic Principles on the Independence of the Judiciary, ”Principle

    The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

    Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article
    A judge shall not sit in a case where a reasonable apprehension of bias on his part or conflict of interest of incompatibility of functions may arise.

    Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, ”Value
    Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.

    and ”Value

    Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.

    Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, ”Article

    Impartiality and restraint. In the performance of the judicial duties the judge must be impartial and must so be seen. The judge must perform his or her duties with restraint and attention to the dignity of the court and of all persons involved.

  4. 4. Statute of the Iberoamerican Judge, Adopted by the VI Iberoamerican Summit of President of Supreme Courts and Tribunals of Justice (2001), Article 8.

    The impartiality of the judge has to be true, real and obvious for the citizens.

  5. 5. Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, ”Value

    Integrity is essential to the proper discharge of the judicial office.

     and ”Value

    Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.

     Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, ”Article

    Art.5. Impartiality and restraint.

    In the performance of the judicial duties the judge must be impartial and must so be seen. The judge must perform his or her duties with restraint and attention to the dignity of the court and of all persons involved.

    Art.6. Efficiency.

    The judge must diligently and efficiently perform his or her duties without any undue delays.

    Art.7 Outside activity.

    The judge must not carry out any other function, whether public or private, paid or unpaid, that is not fully compatible with the duties and status of a judge. The judge must not be subject to outside appointments without his or her consent.

    See ECtHR, Fey v. Austria (Application No. 14396/88), para. 30: “What is at stake is the confidence which the courts in a democratic society must inspire in the public and, above all, as far as criminal proceedings are concerned, in the accused.”
  6. 6. Statute of the Iberoamerican Judge, Adopted by the VI Iberoamerican Summit of President of Supreme Courts and Tribunals of Justice (2001), Article 37.

    In the context of a constitutional or democratic State of Law and in the exercise of their jurisdictional function, the judges have to go beyond the field of exercise of the said function, trying to give justice in conditions of efficiency,
    quality, accessibility and transparency, in respect of the dignity of the person demanding the service.

  7. 7. Statute of the Iberoamerican Judge, Adopted by the VI Iberoamerican Summit of President of Supreme Courts and Tribunals of Justice (2001), Article 39.

    Judges must carry out and make carry out the principle of due process, becoming guarantors of the rights of the parties and, in particular, ensuring they are given an equal treatment avoiding any imbalance motivated by the difference of material conditions between them and, in general, any defenceless situation.

  8. 8. Statute of the Iberoamerican Judge, Adopted by the VI Iberoamerican Summit of President of Supreme Courts and Tribunals of Justice (2001), Article 42.

    Judges must obtain that the procedures they are in charge of get resolved in a reasonable delay. They shall avoid or, in any case, sanction time-wasting or contrary activities to the good procedural faith of the parties.

  9. 9. Statute of the Iberoamerican Judge, Adopted by the VI Iberoamerican Summit of President of Supreme Courts and Tribunals of Justice (2001), Article 44.

    Judges have the obligation to keep strict confidence and professional secret in relation to ongoing trials and to the facts or known details in the exercise of their function or in relation with this one.

    They shall not consult nor assess in cases of present or possible judicial conflicts.

  10. 10.See Bangalore Principles of Judicial Conduct; International Bar Association Minimum Standards of Judicial Independence, para. 35-42.
  11. 11. See Bangalore Principles of Judicial Conduct, Preamble and ‘Implementation’.
  12. 12. UN Basic Principles on the Independence of the Judiciary, ”Principle

    All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

  13. 13. UN Basic Principles on the Independence of the Judiciary, ”Principle

    A charge or complaint made against a judge in his-her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

    and ”20;”
     

    Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

     Statute of the Iberoamerican Judge, Adopted by the VI Iberoamerican Summit of President of Supreme Courts and Tribunals of Justice (2001), Article 20;

    The disciplinary responsibility of judges shall be the competencies of the bodies of the Judiciary legally established , through procedures guaranteeing the respect of the due process and, in particular, the one of the rights of hearing,
    defense, contradiction and legal resources, as appropriate.

     Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article

    The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing.

  14. 14. Human Rights Committee, Concluding Observations on Azerbaijan, UN Doc. CCPR/C/AZE/CO/3 (2009), ”para.

    The Committee remains concerned that, despite the reforms undertaken and the progress made during the reporting period, through, inter alia, the amendments in the Judges Act, the adoption of the Judicial Council Act, the establishment of the statute of the Judges’ Selection Committee, the Code of Ethics for Judges, the State party’s judiciary does not appear to be fully independent from the executive branch or from political pressure. The Committee is also concerned about reports that corruption within the judiciary remains a problem (art. 14).

    The State party should strengthen its efforts to ensure a fully independent judiciary. Given the important prerogatives of the Judicial Council, in particular regarding selection, promotion, and disciplining of members of the judiciary, the State party should ensure that the Judicial Council, in its composition and work, is fully independent from the executive so as to create conditions ensuring full independence of the judiciary. The State party should increase efforts to combat corruption, in particular within its judiciary, by investigating promptly and thoroughly all incidents of suspected corruption. If corruption is established, the officials concerned should face criminal and not only disciplinary sanctions.

    Human Rights Committee, Concluding Observations on Honduras, UN Doc. CCPR/C/HND/CO/1 (2006), ”para.

    The Committee notes the State party’s implementation of selection procedures for judges in accordance with the Judicial Council Act. It is concerned, however, at the failure to establish an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession (article 14 of the Covenant).

    The State party should take effective action to safeguard the independence of the judiciary, including the prompt establishment of an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession.

    Human Rights Committee, Concluding Observations on Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), ”para.

    The Committee is concerned about the absence of adequate guarantees for the independence of international judges and prosecutors. It is concerned about the low remuneration of local judges and prosecutors, the low representation of ethnic minorities in the judiciary, the excessive length of civil court proceedings and court backlogs and the frequent failure to enforce judgements (art. 14).

    UNMIK, in cooperation with PISG as required, should establish independent procedures for the recruitment, appointment and discipline of international judges and prosecutors, ensure adequate terms and conditions for local judges and prosecutors whereby they are shielded from corruption, increase the representation of ethnic minorities in the judiciary, assign additional judges to courts with case backlogs and ensure enforcement of judgements without delay.

  15. 15. Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), ”para.

    28. The composition of this body matters greatly to judicial independence as it is required to act in an objective, fair and independent manner when selecting judges. While a genuinely plural composition of this body is recommended with legislators, lawyers, academicians and other interested parties being represented in a balanced way, in many cases it is important that judges constitute the majority of the body so as to avoid any political or other external interference. In the Special Rapporteur’s view, if the body is composed primarily of political representatives there is always a risk that these “independent bodies” might become merely formal or legal rubber-stamping organs behind which the Government exerts its influence indirectly.

    29. In order to ensure that such a body is apt to select judges in an objective, fair and independent manner, the judiciary and other parties directly linked with the justice system must have a substantial say with respect to selecting and appointing the members of such a body. According to some regional standards, members of the independent body should be selected by the judiciary.

     
  16. 16. UN Basic Principles on the Independence of the Judiciary, ”Principle

    Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.

    Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article

    Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority.

    Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, ”Article

    Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority.

  17. 17. UN Basic Principles on the Independence of the Judiciary, ”Principle

    17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

    18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

    19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

    20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.

    Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 26-31; Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, ”Article

    Security of office. 

    A judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure. A judge must be appointed for life or for such other period and conditions, that the judicial independence is not endangered. Any change to the judicial obligatory retirement age must not have retroactive effect. 

     and ”Article

    Administration and disciplinary action. 

    The administration of the judiciary and disciplinary action towards judges must be organized in such a way, that it does not compromise the judges genuine independence, and that attention is only paid to considerations both objective and relevant. Where this is not ensured in other ways that are rooted in established and proven tradition, judicial administration and disciplinary action should be carried out by independent bodies, that include substantial judicial representation. Disciplinary action against a judge can only be taken when provided for by pre-existing law and in compliance with predetermined rules of procedure.

     
  18. 18. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), para. 20.

    Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence
    of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law. (footnotes omitted)

  19. 19. Inter-American Court of Human Rights, Apitz Barbera et al. v. Venezuela, Judgment (5 August 2008), para. 44;

    This court has previously emphasized that the different political systems have conceived strict procedures for both the judges’ appointment and their removal. On this latter point, the Tribunal has expressed that the authority in charge of the procedure to remove a judge must behave impartially and allow the judge to exercise the right of defense. This is so inasmuch as the fact that judges may be removed from office at will fosters objective doubts in the beholder on the effective possibility to decide specific disputes without fearing reprisals. (footnotes omitted)

    Inter-American Court of Human Rights, Chocrón Chocrón v Venezuela, Judgment (1 July 2011), para. 99;

    Among the aspects of tenure relevant for this case, the Basic Principles establish that, “[t]he term of office of judges […] shall be adequately secured by law” and that “[j]udges, whether appointed or elected, shall have guaranteed
    tenure until a mandatory retirement age or the expiry of their term of office, where such exists.” Also, the Human Rights Committee has indicated that “[j]udges may be dismissed only on serious grounds of misconduct or incompetence and in accordance with fair procedures ensuring objectivity and impartiality set out in the Constitution or the law.” This Court has made use of these principles and has stated that the authority in charge of the procedure of removing a judge must act independently and impartially in the procedure established for that purpose and permit the exercise of the right of defense. This is so, because the free removal of judges raises the objective doubt of the observer regarding the real possibility of judges deciding specific disputes without fear of reprisals. (footnotes omitted)

    Inter-American Court of Human Rights, Camba Campos et al. v Ecuador, Judgment (28 August 2013), para. 189.

    Among the elements of tenure that are relevant for this case, the Basic Principles establish that “[t]he term of office of judges […] shall be adequately secured by law,” and that “[j]udges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.” Also,
    the Human Rights Committee has indicated that judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the Constitution or the law.This Court has endorsed these principles and has asserted that the authority in charge of the procedure for the
    dismissal of a judge must behave independently and impartially in the procedure established to this end and must allow the exercise of the right of defense.This is so, because the free removal of judges fosters an objective doubt in the observer about the real possibility of judges to decide specific disputes without fear of reprisal. (footnotes omitted)

  20. 20. UN Basic Principles on the Independence of the Judiciary, ”Principle

    Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.

    Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article

    Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority.

    Universal Charter of the Judge Approved by the International Association of Judges on 17 November 1999, ”Article

    Civil and penal responsibility. 

    Civil action, in countries where this is permissible, and criminal action, including arrest, against a judge must only be allowed under circumstances ensuring that his or her independence cannot be influenced.

  21. 21. Judicial Code of Ethics (Código de Ética del Juez Venezolano y Jueza Venezolana), Official Gazette No 39 236, 6 August 2009, Article 1.
  22. 22. Defined in the Criminal Code as the act by a civil servant of accepting any undue retribution for the performance of his or her functions. Criminal Code, Article 197. Consulted at: http://www.mp.gob.ve/LEYES/codigo%20penal/codigo%20penal.html, last accessed 24 November 2014.
  23. 23. Defined in the Criminal Code as the act of collusion between an accused and a lawyer to prejudice his or her client, or the act of a lawyer to request from his or her client money or something of value in exchange for the favours of judges, witnesses or experts in a proceeding. Criminal Code, Article 250 and 253.
  24. 24. Constitution, Article 255.
    Appointment to a judicial position and the promotion of judges shall be carried out by means of public competitions to ensure the capability and excellence of the participants, with selection by the juries of the judicial circuits, in such manner and on such terms as may be established by law. The appointment and swearing in of judges shall be the responsibility of the Supreme Tribunal of Justice. Citizen participation in the process of selecting and designating judges shall be guaranteed by law. Judges shall be removed or suspended from office only through the procedures expressly provided for by law.
    Measures shall be taken by law to promote the professionalism of judges, and the universities shall cooperate to this end, organizing their corresponding law schools curricula to specialized studies in judicial practice.
    Judges are personally liable, on such terms as may be determined by law, for unjustified omissions, delay or errors, for substantial failure to observe the rules of procedure, for denial of justice, for partiality and for the criminal offenses of bribery and prevarication in office.
  25. 25. Organic Law of the Judicial Council, Article 12.
  26. 26. Organic Law of the Judicial Council, Article 24.
  27. 27. Organic Law of the Judicial Council, Article 31.
  28. 28. Organic Law of the Judicial Council, Articles 36-39.
  29. 29. Judicial Disciplinary Jurisdiction, Background, Consulted at: http://jdj.gob.ve/lajurisdicciondisciplinariajudicial.html, last accessed 21 August 2014.
  30. 30. Organic Law of the Judicial Council, Article 51.
  31. 31. Judicial Code of Ethics, Derogating Provision.
  32. 32. Constitution, Article 267.
    The Supreme Tribunal of Justice is charged with the direction, governance and administration of the Judicial Power and inspection and vigilance of the courts of the Republic and the public defenders’ offices. The Supreme Tribunal is also charged with preparing and implementing its own budget and that of the Judicial Power.
    Jurisdiction over judicial discipline shall be vested in such disciplinary courts as may be determined by law.
    The discipline system for magistrates and judges shall be based in the Venezuelan Judge’s Code of Ethics to be promulgated by the National Assembly. Disciplinary proceedings shall be public, oral and expeditious, in accordance with due process, subject to such terms and conditions as may be established by law.
    In order to exercise these powers, the Supreme Tribunal in plenary session shall create an Executive Department of the Judiciary, with its various regional offices.
  33. 33. Constitution, Fourth Transitory Provision.
    Within one year of installation, the National Assembly shall approve:
    1. Legislation on penalties for torture, either in the form of a special law or by reforming the Penal Code.
    2. An organic law on refugees and asylum guarantees, consistent with the terms of this Constitution and the pertinent international treaties ratified by Venezuela.
    3. By reforming the Organic Labor Law, a new regime for the right of employees regarding severance payments as regulated in article 92 which regime shall provide for severance payments calculated in proportion to the time served and calculated according with the last salary earned, establishing a statute of limitation for this right of ten (10) years. Until such reformed law goes into effect, the seniority benefit arrangement established under the present Organic Labor Law currently in force shall temporarily remain in effect. Likewise a set of overall standards regulating the working day and promoting the progressive reduction thereof shall be included, on the terms contemplated under the International Labor Organization agreements and conventions signed by the Republic.
    4. An organic procedural labor law guaranteeing the functioning of an autonomous and specialized labor jurisdiction and protection for workers on the terms provided for in this Constitution and the law. The organic labor procedural law shall be guided by the principles of gratuitous service, expeditiousness, oral proceedings, immediacy, priority on the reality of the facts, equity and guiding authority of the judge in the proceedings.
    5. The legislation relating to the Judicial System, National Public Administration, Citizen Power, Electoral Power, tax laws, Budgeting Law, and Public Credit Law.
    An organic law on public defense. Until this law is passed, the Commission on the Functioning and Restructuring of the Judicial System shall be in charge of the development and effective functioning of the Autonomous Public Defender System, in order to guarantee the right to a defense.
    6. A law developing the public finances of the States, establishing, in a manner consistent with the principles and rules of this Constitution, the taxes included in the same, the mechanisms for their application and the provisions regulating them.
    7. Legislation developing the constitutional principles concerning municipal regime. In accordance with such legislation, the legislative organs of the States shall proceed to pass the normative instruments appropriate to the organizational powers assigned to them with respect to the Municipalities and other local organs, and the territorial political divisions in each jurisdiction. The existing Municipalities and parishes shall continue existing until they have been adapted to the new regime provided for under such legislation.
    8. The law by which the Venezuelan Central Bank is to be governed. Among other matters, this law shall provide for the scope of the functions and manner of organization of this entity; the functions, term of office, manner of election, removal, incompatibilities, regime and requirements for the designation of its Chairman and Directors; the accounting rules for establishing its reserves and the manner in which its profits are to be applied; the annual independent audit of accounts and balances by firms of specialists selected by the National Executive and subsequent control by the Office of the General Comptroller of the Republic regarding the legality, sincerity, opportunity, efficacy and efficiency of the administrative activity of the Venezuelan Central Bank.
    The law shall provide the Chairman and other members of the Board of Directors of the Venezuelan Central Bank shall represent exclusively the national interest, to which end it shall provide for public proceedings to evaluate the merits and credentials of candidates for the aforementioned positions.
    The law shall provide that the Executive Power shall have the power to designate no less than half of the Directors as well as the Chairman of the Venezuelan Central Bank, and shall establish the terms for participation by the Legislative Power in the designation and ratification of these authorities.
    9. A law of national police corp. This law shall establish the mechanism for the integration of terrestrial transport and transit vigilance to the national police corps.
  34. 34. Inter-American Court of Human Rights, Apitz Barbera et al. v. Venezuela, Judgment (5 August 2008), para. 253.

    Regarding the back payment of lost salaries and related benefits, the representative filed the affidavit rendered by Ms. Ruggeri, who provided information about her salary at the time she was removed from office and the amount she should receive taking into account the salary increases applied thereto. Notwithstanding, no other evidentiary document was submitted to support the foregoing affidavit, as, for instance, her salary record, her tax return or any other item that might be assessed by the Court. Nor did the representative file any documentary evidence to support the criteria to be adopted in calculating the amount of the victims’ unearned salaries. (footnotes omitted)

  35. 35. Inter-American Court of Human Rights, Apitz Barbera et al. v. Venezuela, Judgment (5 August 2008), para. 147.

    Based on the above, the Court finds that the Venezuelan Judicial Branch itself has condemned the legislative inaction in the adoption of the Code of Ethics. This inaction has consequences in the instant case, since the victims were tried by a special organ that has no defined stability and the members of which can be appointed or removed without a pre-defined procedure and at the STJ’s sole discretion. Basically, even though the misuse of power by the CORJS, acting under the direct pressure exerted on it by the Executive Branch for it to remove the victims, is not an established fact in the instant case, the Court finds that, given the discretionary removal of the members of the CORJS, due guarantees were not provided to ensure that the pressure to which the First Court was being subjected would not influence the decisions of the disciplinary organ.

  36. 36. Original text in Spanish: “todos los jueces y juezas dentro del territorio de la República Bolivariana de Venezuela …en ejercicio de manera permanente, temporal, ocasional, accidental o provisoria”.
  37. 37. Judicial Code of Ethics, Article 2.
  38. 38. Judicial Code of Ethics, Article 28.
  39. 39. Judicial Code of Ethics, Article 39.
  40. 40. Judicial Code of Ethics, Article 40.
  41. 41. Judicial Code of Ethics, Article 42.
  42. 42. Judicial Code of Ethics, Articles 41 and 43.
  43. 43. Judicial Code of Ethics, Article 46.
  44. 44. Judicial Code of Ethics, Article 47.
  45. 45. Judicial Code of Ethics, Article 49.
  46. 46. Judicial Code of Ethics, Article 44.
  47. 47. Judicial Code of Ethics, Article 44(4).
  48. 48. Organic Law of the Supreme Tribunal of Justice, Article 64.
  49. 49. Constitution, Article 270.

    The Committee on Judicial Nominations is a body charged with advising the Judicial Power on the selection of candidates for designation as justices of the Supreme Tribunal of Justice. In addition, it shall advise the judicial electoral colleges on the election of judge, of disciplinary jurisdiction. The Committee on Judicial Nominations shall be made up of representatives of the various sectors of society, in accordance with such provisions as may be established by law.

  50. 50. Organic Law of the Supreme Tribunal of Justice, Article 65.
  51. 51. Supreme Tribunal of Justice of Venezuela, File No.11-0341, 9 March 2012. Available at: http://www.tsj.gob.ve/decisiones/scon/Marzo/272-9312-2012-11-0341.HTML, last accessed 21 August 2014.
  52. 52. Supreme Tribunal of Justice, Constitutional Chamber, File No. 09-1038, 7 May 2013. Available at: http://www.tsj.gov.ve/decisiones/scon/Julio/983-16713-2013-09-1038.html, last accessed 21 August 2014.
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