Executive Secretary of the Inter-American Court of Human Rights

Official Letter No. 013/09 JG/RJ

Rio de Janeiro, January 26, 2009.

To Mr. Pablo Saavedra-Alessandri

Executive Secretary of the Inter-American Court of Human Rights,

Organization of American States;

Post Office Box 6906 - 1000

San Jose, Costa Rica

Fax: +506 234 0584

Ref.: Request for an Advisory Opinion effected by the State of Argentina to the Inter-American Court regarding Article 55 of the American Convention on Human Rights. Comments by Justicia Global on the subject.

Mr. Pablo Saavedra-Alessandri,

Justicia Global respectfully proceeds, pursuant to the invitation extended it by the President of that Honorable Court, Justice Cecilia Medina Quiroga, on October 1, 2008, to submit its comments on the points on which an Advisory Opinion was requested by the State of Argentina, under Article 63(3) of the Rules of Procedure of the Court.

For Justicia Global, the process of reflecting upon and reforming the Inter-American Human Rights Protection System, recently strengthened by the Court when effecting public consultations on the rules governing the operation of the system, is of fundamental importance in order to perfect and strengthen such mechanism. In such context, the request for an Advisory Opinion submitted by the State of Argentina is most relevant, for it will afford deep reflection on the notion of an ad hoc judge and on the principle of judicial impartiality.

The State of Argentina requests clarification on the construction of Article 55 of the American Convention, specifically as regards the whether a State has to the right to appoint an ad hoc judgein proceedings originating in petitions by individuals, or solely in proceedings among States. It does so because the Inter-American System practice shows that the Court has authorized the State, in proceedings deriving from petitions by individuals, to appoint an ad hoc judge in the cases where there was no national of such State among the membership of the Court. It is therefore a matter of analyzing the principle of the due process of the law, specifically as regards equality of arms, when processing an application in the course of proceedings.

Being an international human rights protection tribunal, that Honorable Inter-American Court has a specific procedure for appointing its members, under Article 53(1) of the American Convention: The judges of the Court shall be elected by secret ballot by an absolute majority vote of the States Parties to the Convention, in the General Assembly of the Organization, from a panel of candidates proposed by those states.

Such procedure stems from the natural judge principle ─ enshrined in the contemporary constitutions of the democratic states where the rule of law prevails, and also in Article 8(1) of the American Convention, wherein it is forbidden to appoint a judge to consider a given case, after the court with competent jurisdiction has been seized with it. Thus, the natural judge principle, by forbidding an ad hoc tribunal to be set up in order to pass judgment on certain rights violations, aims at guaranteeing judicial independence from the political powers.

In such context, it is here worth underscoring the recent cases of special tribunals established to punish serious violations in former Yugoslavia, in 1993, and in Rwanda, in 1994. The experience of such tribunals, which was not that positive, further stressed how essential it is to set up a permanent body, with previously appointed judges, that is, without them knowing beforehand which complaints they are to judge. Thus, the very conception of the International Criminal Court, in 2002, reaffirms ─ on the basis of past experiences ─ the importance of guaranteeing judicial impartiality, equality of arms among the parties and transparency in procedural rules.

Furthermore, it must be underscored that the judges sitting in international tribunals could not be appointed (much less by the State Party itself) but must be elected by all the Member States of such Court, or by the highest body to which it reports.

In such manner, the current understanding in force at that Honorable Inter-American Court of Human Rights about the possibility afforded the respondent State (not having a judge who is a national thereof among the membership of the tribunal), in cases concerning petitions by individuals, to appoint an ad hoc judge, ends up by weakening the "equality of arms, instruments, evidence and resources among the parties", a construction derived from the due process of the law principle.

"Equality of arms" represents the guarantee that the final outcome of the case will depend solely on the relative legal merits of the opposing parties, without allowing for distinctions foreign to Law, affecting the assertion thereof. If more effective and powerful arms, and more efficient resources, are afforded one of the parties, the procedural relationship is thrown off balance.

The ad hoc judge, as explained in the Inter-American Rules of Procedure, may be appointed by the respondent State within the thirty days following notification of the application ─ Article 18. If the case originates in a petition by an individual (and is not a matter among States), at this stage of proceedings, the respondent State would already be in possession of the briefs on motions, pleadings and evidence filed by the Inter-American Commission and by the representatives of the victims. In such sense, if the State is construed to have the right to appoint an ad hoc judgein cases deriving from petitions by individuals, then the State may pick, according to the application filed, the jurist it considers most adequate for the case, to act as an ad hoc judge.

The procedural relationship among the State, the Inter-American Commission and the representatives of the victims (and equality of arms) are thrown off balance by the presence of the ad hoc judge because:

i)only the respondent State has the right, under the current construction by the Inter-American Court, to avail itself of such device;

ii)the appointment of the ad hoc judgeby the State is made after it has been given notice of the application, and it already has learned about the facts, the evidence and the motions;

iii)as the judge is appointed by the State itself (rather than elected), it is possible for the State to politically influence the proceedings by selecting the ad hoc judge.

Thus, in response to the first question posed by the Argentine State to the Court, [1]Justicia Global takes up the position that Article 55 of the American Convention should be construed restrictively so that the Court authorize the mechanism of the ad hoc judgesolely in proceedings among States.

2. NATIONALITY OF THE JUDGES AND THE RIGHT TO AND INDEPENDENT AND IMPARTIAL TRIBUNAL

In its request for an Advisory Opinion by that Honorable Court, the Argentine State asks the Court to clarify the situation of whether, in cases derived from a petition by an individual, the judge who is a national of the prosecuted State should decline to participate in considering and determining the case, for the purpose of guaranteeing a decision as impartial and as free from influence as it can possibly be.

The Inter-American Court has already expressed its opinion, in judgments on cases derived from petitions by individuals, on the judicial impartiality standard, that is essential in order to ensure respect for the due process of the law, thus understood as a right in itself and as an instrumental guarantee of other rights:

56. On the other hand, impartiality requires the judges seized with a specific dispute to approach the facts of the case without any subjective prejudice and, likewise, offering objective guarantees sufficient to exclude any doubt the party or the community may have about their lack of impartiality. The European Court of Human Rights has explained that personal or subjective impartiality is to be presumed until there is proof to the contrary.On the other hand, the test which is called “objective” consists in determining whether the judges in question provided convincing characteristics excluding legitimate fear or reasonable suspicion of partiality regarding their person. That is so, for judges must appear to act without being subject to any influence, inducement, pressure, threat or interference, direct or indirect, but only and solely according to ─ and moved by ─ Law.[2] (The underlining is ours)

Judicial impartiality is made up by two aspects: Subjective impartiality and objective impartiality. The former examines the personal convictions in a given judge and establishes that no member of the tribunal must show discriminatory attitudes. In members of the Judiciary, subjective impartiality is to be presumed until there is proof to the contrary. On the other hand, the tribunals must appear as impartial to a reasonable beholder. The objections made by the accused to the impartiality of the judge must be objectively justified, from the point of view of a reasonable and well-informed third party. That is what is called the “appearance of justice.”[3]

The importance given to the “appearance of justice” is justified by the need to keep the public confident in the fair operation of the Courts. Such confidence is considered fundamental in order to maintain democratic institutions guaranteeing, in their turn, public order.[4]

For the purpose of preserving and strengthening the “appearance of justice” in the proceedings before that Honorable Court and in its decisions, Justicia Global joins the position of the ArgentineState regarding the impossibility for a judge who is a national of the respondent State to take part in the judgment thereof.

Members of the Inter-American Court are elected after they are considered and voted in by the OAS General Assembly among the candidates, who must be jurists of the highest moral authority and of recognized competence in the field of human rights. These are fundamental standards whereby an excellent membership of such tribunal and the preservation of the “appearance of justice” are guaranteed. The impartiality of the Court must also be reinforced by the impossibility for the judge who is a national of a respondent State to take part in the judgment thereof.

It is of the very essence that all the bodies making up the Inter-American Human Rights Protection System and that all those that turn to it may always stand out and build an impartial procedure generating decisions that are impossible to question from such an angle. Hence, the position taken up by Justicia Global runs along the same lines as the one Argentina has shown in its request for an Advisory Opinion from the Court.

3. CONCLUSION

The legal representative of Justicia Global before that Court is lawyer Andressa Caldas (who signs hereinbelow), Deputy and Legal Affairs Director of the organization, as per the annexed documents (by-laws of the organization and minutes of the position-taking act).

We also forward the address where all notices and communications sent by the Inter-American Court are to be officially received, as well as the fax number and the telephone number whereat the organization can be reached, which are:

Justicia Global

406, Beira Mar Avenue, Room 1297 Downtown

Rio de Janeiro - RJ, Brazil

CEP (Código de Endereçamento Postal) [Post Office Forwarding Code]. 20021-900

Telephone: 55 21 2544-2320

Fax: 55 21 2524-8435

We thank in advance for the attention given to the case and remain ready to provide further information. We avail ourselves of this most favorable occasion to pay once more our sincerest respects to the Executive Secretary.

Andressa Caldas

Director for Legal Affairs

Luciana Garcia

Lawyer

Renata Lira

Lawyer

Tamara Melo

Lawyer

[1] “Pursuant to the provisions in Article 55(3) of the American Convention on Human Rights, the possibility of appointing an ad hoc judge must be restricted to the cases where the application be originated in a petition by one State regarding another?”

[2] I/A Court H.R. Case of Apitz Barbera et al. v. Venezuela. Judgment of August 5, 2008.

[3] Human Rights Committee, General Comment No. 32, “Article 14. Right to equality before courts and tribunals and to a fair trial”, 90th Session, Geneva, 9 to 27 July, 2007, page 21.

[4] Judgment delivered by a Grand Chamber of the European Court of Human Rights, Case of the United Communist Party of Turkey and others v. Turkey, dated 30 January 1998, Recueil 1998-1, paragraph 45.