I/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.

Non official brief


This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2008-3-e.pdf




In order to ensure that provisional judges remain independent, States must grant them some form of stability and permanence in office. The fact that judges are appointed provisionally should not alter the safeguards in place to maintain the integrity of the judiciary.


Provisional judicial appointments should not extend indefinitely, but should depend upon a condition subsequent; they should be the exception rather than the rule, and should be subjected to the same conditions as tenured judges in order to ensure the independent exercise of the judicial office.


The State must guarantee the independence of judges both at the institutional level and with respect to each individual judge. The judicial system in general, and its members in particular, must not find themselves subjected to possible undue limitations on the exercise of their functions by reviewing judges or bodies alien to the judiciary.


Impartiality demands that a judge approach the facts of a case subjectively free of all prejudice and also offer sufficient objective guarantees to exclude any doubt the parties or the community might entertain as to his or her lack of impartiality.


The right to a hearing requires every person to be able to have access to the state body or tribunal in charge of determining his or her rights and obligations. This does not imply that the right to a hearing must necessarily be exercised orally in all proceedings.


Decisions regarding the disciplining of judges should state their grounds so that these may operate as a guarantee that judges will not be penalized for taking legal positions that are duly supported but do not correspond to those put forward by the reviewing organs.




I. On 30 October 2003, three judges of the First Court of Administrative Disputes, charged with reviewing administrative acts, were deemed to have committed "serious legal error of an inexcusable character" after approving a request for amparo against an act related to the sale of real estate. Because the State was under a constitutional transition process, the three judges had been appointed to the court on a provisional basis by the Supreme Tribunal of Justice until such offices could be filled through a competitive selection process. However, after this ruling, the judges were subjected to criminal proceedings, a disciplinary investigation, precautionary suspension, and removal from office, despite that the State's highest court referred to their acts as "common practice". The judges attempted to challenge these proceedings through various judicial avenues.


On 29 November 2006, the Inter-American Commission on Human Rights (hereinafter, "the Commission") filed an application with the Inter-American Court of Human Rights (hereinafter, "the Court") against the State of Venezuela to determine its responsibility for the alleged violation of Article 8 ACHR (Right to Fair Trial) and Article 25 (Right to Judicial Protection), in relation to Article 1.1 ACHR (Obligation to Respect Rights) and Article 2 ACHR (Domestic Legal Effects). The representatives, for their part, alleged additional violations of Article 23 ACHR (Right to Participate in Government), Article 24 ACHR (Right to Equal Protection), and Article 29 ACHR (Restrictions Regarding Interpretation).


II.  In its Judgment of 5 August 2008, the Court found that because the body reviewing the judges' actions had jurisdiction to hear all disciplinary proceedings against judges of the State, it was not an ad hoc tribunal, and was previously established by law. Additionally, it found no violation for the fact that the judges could not present orally before that body, as no arguments were submitted with respect to the necessity of oral proceedings. However, the Court held that the State did not effectively guarantee the right to have a hearing before an impartial tribunal, pursuant to Article 8.1 ACHR in relation to Articles 1.1 and 2 ACHR, because domestic law prevented the judges from requesting a review of the impartiality of the body that heard their appeals. Additionally, because its members were subject to discretionary removal, that body was not subject to sufficient guarantees of independence.


The Court also stated that the State violated Article 8.1 ACHR, in relation to Article 1.1 ACHR, due to the fact that the reviewing body did not state the grounds for its decision against the three judges. Additionally, the Court held that the State violated those same articles because a hierarchical recourse filed against the order for removal of the judges was ruled upon after three times the length of time allowed by law. Additionally, the State did not justify its delays in ruling upon an appeal for annulment of that order, taking into account the complexity of the case, the procedural activity carried out by the parties, and the activity of judicial authorities.


Furthermore, the Court also found that the State violated Article 25.1 ACHR, in relation to Article 1.1 ACHR, due to unjustified delays in the resolution of petitions for constitutional amparo, intended to be a prompt recourse under the State's domestic law, against two judges' suspensions and removal from office.


However, the Court found no violation of Article 24 ACHR because it did not have jurisdiction to rule on whether other judges of the First Court should have been sanctioned identically to the three victims in this case. It also rejected the representative's contention that the State violated Article 24 ACHR because an appeal for annulment filed by another judge was decided promptly, and stated that such allegations should be analysed under the non-discrimination clause in Article 1.1 ACHR, in relation to the substantive right found in Article 8.1 ACHR. However, the Court found no violation of these articles because the proceedings cited by the representative were different in nature.


Furthermore, the Court found no violation of Article 23 ACHR, since the prohibition of reincorporation into public office of those who have been dismissed is an objective and reasonable condition intended to guarantee the correct exercise of the judicial task. Additionally, the Court reasoned that because it lacked jurisdiction to determine whether a disciplinary sanction should have been imposed on other judges, it also lacked the competence to analyse the consequences that such imposition would have engendered. Finally, the Court rejected the alleged violation of Article 29 ACHR, stating that the interpretation principles contained therein can only result in the violation of a substantive right unduly construed in accordance with those principles.


Consequently, the Court ordered the State to reinstate the judges to their previous positions or to positions of the same rank, salary, and benefits. It also ordered the State to publish the pertinent parts of its Judgment, enact a judicial code of ethics, and ensure the impartiality of the disciplinary authority of the judiciary. Additionally, the State was ordered to pay the judges pecuniary and non-pecuniary damages, as well as legal costs and expenses.