INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF LÓPEZ MENDOZA v. VENEZUELA
JUDGMENT OF SEPTEMBER 1, 2011
(Merits, Reparations, and Costs)
In the Case of López Mendoza,
the Inter-American Court of Human Rights (hereinafter "the Inter-American Court," "the Court," or "the Tribunal"), composed of the following judges:
Diego García-Sayán, President;
Manuel E. Ventura Robles, Judge;
Margarette May Macaulay, Judge;
Rhadys Abreu Blondet, Judge;
Alberto Pérez Pérez, Judge, and
Eduardo Vio Grossi, Judge;
also present,
Pablo Saavedra Alessandri, 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 30, 32, 38, and 61 of the Court Rules of Procedure (hereinafter “the Rules of Procedure”), render the following Judgment that is structured in the following order:
I. INTRODUCTION TO THE CASE AND PURPOSE OF THE DISPUTE, 5
II. PROCEEDINGS BEFORE THE COURT, 7
III. JURISDICTION, 9
IV. EVIDENCE,9
1. Documentary, testimonial, and expert evidence, 10
2. Admission of documentary evidence, 11
3. Admission of testimonial and evidentiary evidence, 12
V. FACTS OF THE CASE, 13
A. Prior considerations regarding facts not included in the application, 13
1.Arguments of the parties, 13
2.Considerations of the Court, 14
B. Proven facts related to the sanctions imposed on Mr. López Mendoza, 15
1. The Comptroller General of the Republic and the National System of Fiscal oversight, 15
2. Components and stages of the administrative proceeding for the determination of responsibility,18
3. Administrative Proceeding in relation to the activity of Mr. López Mendoza in PDVSA, 20
3.1. Phases of actions of fiscal oversight, 21
3.2. Investigative phase, 22
3.3. Administrative proceeding for the determination of responsibility, 24
3.4. Motion to Reconsider, 26
3.5. Imposition of the sanction of disqualification, 26
3.6. Motion to Reconsider, 26
3.7. Judicial appeal for annulment of the administrative decision of the State [recurso contencioso administrative de nulidad],27
4. Proceeding in relation to some of the decisions adopted by Mr. López Mendoza as Mayor of Chacao, 30
4.1. Phases of action of fiscal oversight, 30
4.2. Investigation Phase, 31
4.3. Administrative proceeding for the determination of responsibility, 32
4.4. Writ of amparo filed by the representatives of the alleged victim, 33
4.5. Continuation of the administrative proceeding, 33
4.6. Motion to Reconsider, 35
4.7. Imposition of the sanction of disqualification, 36
4.8. Motion to Reconsider, 36
4.9. Judicial appeal for annulment of the administrative decision of the State [recurso contencioso administrative de nulidad] withthe precautionary measure for protection of a constitutional right [medida de amparo cautelar] and suspension of effects, 37
5. Appeal for annulment together with the request for precautionary measure for protection of a constitutional right, 41
6. Facts related to the request to register as a candidate, 42
VI. RIGHT TO PARTICIPATE IN GOVERNMENT [POLITICAL RIGHTS], RIGHT TO FAIR TRIAL [JUDICIAL GUARANTEES], JUDICIAL PROTECTION, AND EQUAL PROTECTION BEFORE THE LAWIN RELATION TO THE OBLIGATION TO RESPECT RIGHTS AND DOMESTIC LEGAL EFFECTS, 44
1. Arguments of the parties, 44
2. Considerations of the Court, 47
A. Right to be elected, 46
1. Arguments of the parties, 46
2. Considerations of the Court, 48
B. Judicial guarantees regarding the administrative proceedings, 49
1. Guarantees in the administrative proceeding that resulted in a fine, 49
1.1. Right to defense and right to appeal the sanctioning decision, 49
1.1.1 Arguments of the parties, 49
1.1.2. Considerations of the Court, 50
1.2. Presumption of innocence,52
1.1.1. Arguments of the parties, 52
1.1.2. Considerations of the Court, 53
2. Right to be heard, obligation to establish cause, and right to defense in relation to the restriction on the right to passive suffrage [stand in an election], 55
2.1 Arguments of the parties, 55
2.2 Considerations of the Court, 56
3. Reasonable period, 61
3.1 Regarding the judicial appeal for annulment of the administrative decision against the State, 62
3.1.1. Arguments of the parties, 62
3.1.2. Considerations of the Court, 63
i. Complexity, 64
ii. Procedural actions of the interested parties, 65
iii. Actions of the judicial authorities, 65
iv. Effect generated to the legal situation of the person involved in the proceeding,66
3.2. Regarding the constitutional challenge, 66
3.2.1. Arguments of the parties, 66
3.2.2. Considerations of the Court, 67
i. Complexity, 67
ii. Procedural activity of the interested parties, 68
iii. Actions of the judicial authorities, 68
iv. Effect generated by the legal situation of the person involved in the proceeding, 69
4. Judicial Protection and Effectiveness of the remedy, 69
4.1 Arguments of the parties, 69
4.2 Considerations of the Court, 69
C. Equality before the law, 70
1. Arguments of the parties, 70
2. Considerations of the Court, 71
D. Duty to adopt domestic legal effects, 73
1. Arguments of the parties, 73
2. Considerations of the Court, 74
VIII. REPARATIONS, 77
A. Injured Party,78
B. Measures of comprehensive reparation: restitution, satisfaction, and guarantees of non-repetition, 79
1. Restitution, 79
2. Satisfaction, 80
3. Guarantees of non-repetition, 80
4. Other requested measures of reparation, 82
C. Compensatory damages, 82
D.Costs and expenses, 83
E. Method of compliance with reimbursement of costs and expenses, 85
Concurring Opinions of Judge Diego Garcia- Sayán and Eduardo Vio Grossi.
I
INTRODUCTION TO THE CASE AND PURPOSE OF THE DISPUTE
1. On December 14, 2009, the Inter-American Commission on Human Rights (hereinafter "the Commission" or "Inter-American Commission") filed, pursuant to Articles 51 and 61 of the Convention, a petition against the Bolivarian republic of Venezuela (hereinafter "the State" or "Venezuela") in relation to case No. 12.668, Leopoldo López Mendoza, which originated by means of the petition received by the Commission on March 4, 2008, and registered under No. 275-08. On July 25, 2008, the Commission issued Admissibility Report No. 67/08.[1] On August 8, 2009, the Commission adopted the Merits Report No. 92/09 and sent it to the State granting it a period of two months to report on the measures adopted to comply with the recommendations of the Commission.[2] After considering that Venezuela had not adopted the recommendations included in this report, the Commission decided to submit this case to the Court's jurisdiction. The Commission appointed Paulo Sérgio Pinheiro, Commissioner, and Mr. Santiago A. Cantón, Executive Secretary, as Delegates, and Mrs. Elizabeth Abi-Mershed, Deputy Executive Secretary, and Mrs. Karla I. Quintana Osuna, Specialist of the Executive Secretary, as legal advisor.
2. The application is related to the alleged "international responsibility [of the State] for disabling Mr. López Mendoza […] from holding public office through administrative means in [alleged] contravention of the standards found in the Convention[;] for having prohibited him from participating in the regional elections in 2008, as well as for not granting him the relevant judicial guarantees and judicial protection or [...] appropriate reparation.” According to the application, “upon adopting the decision of disqualification from holding a position in public office of [Mr.] López Mendoza, the Comptroller [General] of the Republic and, under review, the Political-Administrative Chamber of the [Supreme Tribunal of Justice], did not elaborate further arguments that would support the application of a more severe sanction than [that of the] fine [already imposed], or […] did it offer arguments to grade the charge for the type of illicit conduct and its relation to the imposition of one of the maximum additional sanctions.”
3. The Commission requested the Court to declare the State of Venezuela responsible for the violation of Articles 23 (Right to Participate in Government [Political Rights]); 8(1) (Fair Trail [Judicial Guarantees]); 25 (Judicial Protection), together with Articles 1(1) (Obligation to Respect Rights) and 2 (Domestic Legal Effects) of the American Convention, to the detriment of Mr. López Mendoza. Moreover, the Commission requested the Court to order the State to adopt measures of reparation, as well as to reimburse costs and expenses.
4. Legal notice of the application was given to the State and to the representatives of the alleged victim, Mr. Enrique Sánchez Falcón and Mr. José Antonio Maes Aponte (hereinafter “the representatives”), on January 15, 2010.
5. On March 19, 2010, the representatives filed their brief of motions, pleadings, and evidence (hereinafter "the brief of motions and pleadings") before the Court, in the terms of Article 40 of the Rules of Procedure. In this brief, they alluded to the facts noted in the application of the Commission, expanding on specific information therein and specifying their request for a declaration of State responsibility for the violation of Articles 23(1)(b), 23(2), 8(1), 8(4), 24, and 25, in accordance with Articles 1(1) and 2, all of the American Convention. Specifically, the representatives indicated that Mr. López Mendoza’s rights to “(i) be elected in genuine periodic elections, carried out through universal and equal suffrage and by secret ballot that guaranteed the free expression of the will of the voters[;] (ii) […] not limit the exercise of political rights, except through a final judgment after a criminal proceeding[;] (iii) […] be heard with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, for the determination of his rights and obligations[;] (iv) […] be sanctioned for the same facts by which he was previously sanctioned or acquitted by the competent authority[,] and (v) judicial protection” were not recognized. As well, they added that Mr. López Mendoza was a victim of a violation to equality before the law. Finally, they requested various measures of reparation.
6. On June 4, 2010, the State presented its brief of preliminary objections, answer to the application, and comments to the brief of pleadings and motions (hereinafter "the answer to the application"), in the terms of Article 41 of the Rules of Procedure. In said brief, the State filed the preliminary objection it entitled, "Bias in the roles carried out by some of the judges of the Court.”[3] Moreover, the State denied its international responsibility for the violation of the rights argued by the other parties. The State appointed Mr. Germán Saltrón Negreti as Agent in this case.
II
PROCEEDINGS BEFORE THE COURT
7. By way of the Order of December 23, 2010,[4] the President (hereinafter "the President") ordered the submission of sworn statements rendered before a notary public (affidávit) of a witness proposed by the State and four expert witnesses, two proposed by the Commission, one proposed by the representatives, and the other by the State. Moreover, the President summoned the parties to a public hearing to hear the statements of the alleged victim, proposed by the Commission; of one witness proposed by the State; and of four experts, two proposed by the representatives and two by the State; as well as to hear the final oral arguments of the parties on the merits and possible reparations and costs in this case.
8. On January 25, 2011, the Inter-American Commission reported that Mr. Fabián Aguinaco Bravo, expert witness proposed by it, "regrettably, did not [have] 'the time necessary to draft the [expert report] required" in the Order of December 23, 2010 (supra para. 7). Therefore, the Commission "request[ed] the substitution of [Mr.] Aguinaco Bravo with [Mr.] Pedro Salazar Ugarte, […], in order for the latter to make reference to the same points in the expert report." In this regard, by means of a note of the Secretariat on January 31, 2011, it was noted that: i) the Commission filed a list of final declarants on November 8, 2010, wherein it confirmed the proposal for the expert witness, Mr. Aguinaco; ii) legal notice of the summons order to the public hearing was given to the parties on December 23, 2010, and a period of more than one month was granted to present the expert reports; iii) on January 4, 2011, the Commission requested an extension in order to present the statements before a notary public of the experts summoned in the Order and did not allude to the situation of Mr. Aguinaco—request which was granted, and iv) a clear and specific situation of force majuere was not argued to justify the granting of this request. Given the above mentioned, the request for substitution is denied.
9. The public hearing was held on March 1 and 2, 2011, during the 90th Regular Period of Sessions of the Court,[5] carried out at the seat of the Court, in the city of San Jose, Costa Rica.
10. On the other hand, the Court received amicus curiae briefs[6] from the Asociación Venezolana de Derecho Constitucional [Venezuelan Association of Constitutional Law][7]; The Human Rights Foundation[8]; Mr. Jorge Castañeda Gutman[9]; Mr. Hugo Mario Wortman Jofre,[10] and The Carter Center.[11] These briefs develop diverse ideas regarding judicial guarantees and political rights.
11. By means of a note from the Secretariat of the Court on March 8, 2011, the parties were requested to, together with their final written arguments, present their supporting arguments and documentation, where applicable, in relation to the various topics concerning this case.[12]
12. On April 1 and 2, 2011, the representatives, the State, and the Inter-American Commission, respectively, submitted their final written arguments. On April 5 and 8, 2011, the representatives and the State, respectively, submitted annexes to their final written arguments. By way of a note from the Secretariat of the Court on April 12, 2011, following instructions from the President of the Court, the parties were informed that they had a period until April 25, 2011, to refer specifically, if deemed appropriate, to the information and annexes submitted by the representatives and by the State, in response to the questions made by the Judges of the Court in the note of the Secretariat of March 8, 2011 (supra para. 11). It was specified that any other additional argument would not be considered by the Court. On April 25, 2011, the representatives, the Commission, and the State presented their comments.
13. On May 10, 2011, the representatives presented "comments" to the comments formulated by the State regarding the information and annexes submitted by the representatives and the Inter-American Commission as a response to the questions of the judges of the Tribunal found in the note of the Secretariat of March 8, 2011 (supra paras. 11 and 12). By means of the note of the Secretariat of the Court of May 25, 2011, it was made known that the cited "comments" of the representatives were not requested by this Court nor by its President. However, the Tribunal admits those observations, exclusively on the matters that could help to establish costs and expenses in this case.