The IACHR found a violation of the requirements of Articles 23, 13, 15 and 16 in connection with paragraph 1 of Article 1 and Article 2 of the ACHR, Articles 8, 25 and 23 in connection with paragraph 1 of Article 1 and Article 2 of the ACHR and Article 9

Заголовок: The IACHR found a violation of the requirements of Articles 23, 13, 15 and 16 in connection with paragraph 1 Сведения: 2020-06-25 05:02:14

Judgment of the Inter-American Court of Human Rights of October 5, 2015 in the case of Lopez Lone et al. v. Honduras (Series C, No. 302).

The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).

Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. The complaint was then communicated to Honduras.

The case has successfully considered a complaint about the rights of judges in connection with their removal or dismissal for actions against the coup.

The rights of judges in connection with their removal or dismissal for actions against the coup.


Circumstances of the case


In June 2009, a coup d'etat took place in Honduras. The Army imprisoned President Jose Manuel Zelaya Rosales after the Attorney General appealed to the Supreme Court for authorization to be detained for alleged crimes against governance, treason, abuse of authority and abuse of authority. These allegations were related to President Zelaya’s attempts to amend the Honduran Constitution. On the day of his capture, the alleged declaration of resignation of [President] Zelaya was announced in Congress, which later named its chairman as constitutional president. The Supreme Court of Honduras characterized these events as constitutional succession.

However, the General Assembly and the Permanent Council of the Organization of American States (hereinafter - the OAS), as well as the UN General Assembly, regarded these facts as a coup d'etat. In July 2009, the OAS General Assembly, for the first time using Article 1 of the Inter-American Democratic Charter, decided to "suspend the exercise of the right of the State of Honduras to participate in the Organization." After several negotiations in October 2009, the Tegucigalpa – San Jose National Reconciliation Agreement was signed and the Truth and Reconciliation Commission was established to “clarify the events before and after June 28, 2009.” Elections were held in November 2009, and then an agreement on national reconciliation was signed on May 22, 2011, after which the suspension of participation in the OAS was lifted.

The present case concerns disciplinary proceedings against judges Adan Guillermo Lopez Lone, Luis Alonso Chevez de la Rocha, Ramon Enrique Maldonaldo Barrios, Tirsa del Carmen Flores Lansa (Adan Guillermo Lone, Luis Alonso de la Rocha, Enrique Maldonado Barrios, Tirza Lanores Carmen . These proceedings were initiated in connection with the applicants' actions in defense of democracy and the rule of law in response to a coup d'etat. Lopez Lone participated in a demonstration against the coup. Cheves de la Rocha allegedly participated in a demonstration against a coup d'etat, for which he was briefly detained, and also criticized refereeing in front of his colleagues. Flores Lansa filed a criminal case against military officials involved in the coup d'état and a constitutional lawsuit in favor of the ousted president, while Barrios Maldonaldo delivered a lecture that was later published in a newspaper article expressing his views on the state coup. In addition, all four judges were members of the Association of Judges for Democracy (AJD), which publicly criticized the coup and called for the restoration of the rule of law. As a result of these proceedings, four judges were dismissed, and three of them, whose dismissal was confirmed upon appeal, were expelled from the judges.


QUESTIONS OF LAW


(a) Preliminary objection. The Government submitted a preliminary objection to the alleged failure to exhaust two domestic remedies. The Inter-American court dismissed the objection because it considered that part of the arguments of the Honduran authorities had been filed with a missed deadline (regarding the administrative complaint) and that the state had not proved the availability of another alleged remedy (amparo complaints).

The amparo procedure (Spanish: recurso de amparo, juicio de amparo) is a means to protect constitutional rights that is characteristic of a number of legal systems. In some legal systems, mainly in the Spanish-speaking world, amparo is an effective and inexpensive tool to protect individual rights. The amparo procedure, as a rule, is carried out by the Supreme or Constitutional Court and fulfills a double protective goal: it protects the citizen and his basic guarantees; and also protects the constitution itself, ensuring that its principles are not violated by acts or actions of the state that undermine the fundamental rights proclaimed in it.

(b) Merits. As a preliminary finding, the Inter-American Court of Justice emphasized that representative democracy is one of the foundations of the entire system of the American Convention on Human Rights (hereinafter - ACHR). He decided that the events of June 2009 in Honduras constituted an internationally wrongful act. During this situation, the de facto government instituted disciplinary proceedings against the applicants in connection with conduct, which was essentially an act against a coup d'état and in the interests of the rule of law and democracy. The Inter-American Court ruled that the applicants ’response to the coup d'état was not only an exercise of law, but also an obligation to defend democracy.

Articles 23 (the right to participate in management), 13 (the right to freedom of expression), 15 (the right to assembly) and 16 (freedom of association) in connection with paragraph 1 of Article 1 (obligation to respect and ensure rights) and Article 2 (obligation take domestic measures) ACHR. The Inter-American Court of Justice emphasized the close relationship between political rights, the right to freedom of expression, the right to assembly, and freedom of association, as well as the centrality of these rights, taken together, for democracy. He decided that in the conditions of the collapse of state institutions, for example, after the coup, the interconnection of these rights is even more important, especially when they are used together to protest against violations of the constitutional order and democracy. The court noted that statements or actions in favor of democracy should enjoy the greatest possible protection and, depending on the circumstances, may have an impact on some or all of these rights. The right to protect democracy is part of the right to participate in public affairs, which also includes the exercise of other rights, such as freedom of expression and the right to assembly.

In resolving the issue of the right to participate in politics, the right to freedom of expression and the right of assembly of persons exercising judicial functions, the Inter-American Court noted that there was a regional consensus on the need to limit the participation of judges in party political activity, especially considering that in some states of the region any participation in politics, other than voting in elections, was banned altogether. The Inter-American Court emphasized that restricting the participation of judges in order to protect their independence and impartiality was compatible with the AHRC. Similarly, he noted that the Court has ruled that certain restrictions on the freedom of expression of judges are necessary in all cases where the authority and impartiality of the judiciary may be called into question (citing the Wille v. V. Liechtenstein judgment of the European Court of Justice (Wille v Liechtenstein) of October 28, 1999, complaint No. 28396/95, § 64, and the judgment of the European Court in the case of Kudeshkina v. Russia of February 26, 2009, complaint No. 29492/05, § 86, “The Case-Law Newsletter of the European Court of Human Rights”, No. 116).

However, the Inter-American Court ruled that the powers of states to regulate or restrict these rights are not discretionary. Any restrictions on the rights proclaimed in the AHRC should be interpreted restrictively. The restriction on the participation of judges in party political activity should not prevent judges from participating in all discussions on political issues. In this regard, situations may arise when the judge, as a member of society, believes that moral duty requires him to express his opinion.

Accordingly, the Inter-American Court found that the restrictions that are usually imposed on the right of judges to participate in party political activities do not apply in situations of serious crisis of democracy, as in the present case. To deny the right of judges to speak out against a coup would be contrary to the independence inherent in state power. In addition, the mere fact that disciplinary proceedings were instituted against judges for their actions against a coup d'etat could have a terrifying effect and therefore created an inappropriate restriction of their rights.

Thus, disciplinary proceedings against Lopez Lone and Cheves de la Rocha constituted a violation of their freedom of expression, the right of assembly and political rights, while proceedings against Flores Lance and Barrios Maldonaldo constituted a violation of their freedom of expression and political rights. The Inter-American Court also concluded that, due to the exclusion of judges, Lopez Lone, Cheves de la Rocha and Flores Lance could no longer participate in AJD, therefore their dismissal also constituted a violation of their freedom of association.


RESOLUTION


The case has violated the requirements of Articles 23, 13, 15 and 16 in connection with paragraph 1 of Article 1 and Article 2 of the ACHR (issued unanimously).

Articles 8 (right to a fair trial), 25 (right to judicial protection) and 23 in connection with paragraph 1 of article 1 and article 2 of the ACHR. The Inter-American Court recalled that judges, unlike other public servants, enjoy special guarantees because of the necessary independence of the judiciary. In this regard, he found that (i) respect for judicial guarantees includes respect for the independence of judges, (ii) the notion of independence of judges is manifested in the subjective right of a judge to be removed from office only on permitted grounds and either through proceedings that satisfy all judicial guarantees, or upon completion the term of office and (iii) when a judge is arbitrarily removed from office, the right to independence of judges, as well as the right to hold a public post and remain in it under the general conditions of equality, are affected.

The guarantee of the tenure of judges, in addition to ensuring that a judge can only be removed from office on the conditions described above, implies that (i) judges can only be dismissed for serious disciplinary offenses or incompetence and (ii) any disciplinary proceedings against judges should be carried out in accordance with established standards of conduct for judges through fair procedures to ensure objectivity and impartiality in accordance with the constitution or law.

The judges in the present case were subjected to disciplinary proceedings, in which the first decision on dismissal was made by the Supreme Court, while the complaints were examined by the Council of Judges, a subordinate and subsidiary organ of the Supreme Court. The Inter-American Court ruled that (i) the judges were subjected to disciplinary procedures not prescribed by law, (ii) their complaints were examined by the Council of Judges, which not only was not legally competent for this, but also did not have the independence and impartiality to verify the decisions of the Supreme court, (iii) the Supreme Court did not provide objective guarantees of impartiality for deciding on alleged disciplinary offenses committed by the applicants, as these offenses concerned actions in response to a coup.

The Inter-American Court concluded that the state violated the judicial guarantees of four judges in the present case, as well as the right to remain in office of three judges, whose dismissal was confirmed upon appeal.

As regards the right to judicial protection, the Inter-American Court found that the context in which the facts of the case had taken place and the fact that any amparo complaint against a decision of the Council of Judges had to be submitted to the Supreme Court made this remedy ineffective. Thus, he concluded that the state violated the right to judicial protection of all four judges.


RESOLUTION


The case has violated the requirements of Articles 8, 25 and 23 in connection with paragraph 1 of Article 1 and Article 2 of the ACHR (issued unanimously).

Article 9 (exemption from laws ex post facto) in connection with paragraph 1 of article 1 and article 2 of the ACHR. The Inter-American Court ruled that the disciplinary rules that applied to the applicants provided the disciplinary judge with too much discretion in sentencing. He emphasized that the dismissal or removal from office is the most restrictive and strict measure that can be taken in disciplinary cases, and therefore must comply with the principle of maximum severity. The possibility of applying such a measure should be predictable either due to the fact that it is directly and clearly provided by law or due to the fact that the law provides for its appointment on the basis of a court decision or by-law on the basis of objective criteria to limit such freedom of discretion. Furthermore, the Inter-American Court noted that the applicants were punished on the basis of a multitude of rules. The lack of adequate motivation in the decisions prevented the Inter-American Court from identifying the regulatory grounds or illegal conduct for which they were fired, as well as analyzing their legal certainty. However, the Inter-American Court cautioned against the use of vague concepts, such as “the dignity of the administration of justice” or “the honor of a position”, in formulating punishable violations of the law without establishing objective criteria through regulation or judicial interpretation that restrict the judge’s discretion and separate these conditions from personal ones and private opinions.

Ex post facto (lat.) - with retroactive force. This refers to a ban on the retroactive application of a law that worsens the situation of the accused.

For the reasons stated above, the Inter-American Court concluded that the state had violated the principle of legality with respect to all four judges.


RESOLUTION


The case has violated the requirements of Article 9 in connection with paragraph 1 of Article 1 and Article 2 of the ACHR Convention (unanimously).

(c) Compensation. The Inter-American court found that this ruling is in itself a form of compensation, and ordered the state to (i) reinstate Lopez Lone, Flores Lance and Chevez de la Rocha in positions similar to those held at the time of dismissal, with the same payments, benefits and the qualification class they would qualify for if they were reinstated at that time. If this is not possible, the state is obliged to pay the amount specified in the resolution, (ii) publish the resolution and an official extract from it, (iii) to pay the amounts provided for by the resolution as compensation for pecuniary and non-pecuniary damage and reimbursement of legal costs and expenses.

 

 

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