Views of the Human Rights Committee of 7 November 2017 in the case of Gabriel Osio Zamora v. Bolivarian Republic of Venezuela (communication No. 2203/2012).
In 2012, the author of the communication was assisted in the preparation of a complaint. Subsequently, the complaint was communicated to the Bolivarian Republic of Venezuela.
Subject matter: liquidation of a brokerage firm without a fair trial.
Substantive issue: the right to a fair and public hearing by a competent, independent and impartial court; the right to an effective remedy; equality before the law and non-discrimination.
Legal positions of the Committee: The Committee recalls that the concept of duties "in civil proceedings", contained in article 14, paragraph 1, of the Covenant, includes, in particular, judicial procedures designed to determine rights and obligations related to the areas of contracts, property and civil offenses in the field of civil law, as well as equivalent concepts in areas of administrative law, such as seizures of private property. The Committee also recalls that in all cases where domestic law assigns a judicial function to a judicial authority, the guarantees set out in the first sentence of article 14, paragraph 1, of the Covenant, namely the right to equality before courts and tribunals, apply, therefore, the principles of impartiality, justice and equality enshrined in this provision must be respected ( See The Committee's views on communication No. 1015/2001, Perterer v. Austria, dated 20 July 2004, paragraph 9.2 (disciplinary proceedings against a public official), and communication No. 1973/2010, Griffiths v. Australia, dated 21 October 2014, paragraph 6.5.). Consequently, the Committee considers that the above-mentioned guarantees are applicable to the proceedings in Court No. 2 on administrative disputes (paragraph 9.2 of the Considerations).
The Committee recalls its practice according to which "a process, the course of which is significantly influenced by the interest of a judge who, according to domestic laws, should have been disqualified, usually cannot be considered impartial." In the present case, participation in the proceedings on the motion for recusal of the judge, whose request for recusal was contained in this motion, raises doubts about his impartiality... The Committee recalls that a certain procedure for the appointment of judges and guarantees of their irremovability are a prerequisite for ensuring the independence of the judiciary, and any situation in which the executive authorities can control the judiciary or direct their activities is incompatible with the Covenant. In this regard, the fact that judicial officers are appointed to perform the relevant duties temporarily does not relieve the State party from the obligation to provide adequate guarantees of the irremovability of such staff. Regardless of the nature of their appointment, judicial officers must be independent and give the impression of independence. In addition, temporary appointments should be made in exceptional cases and for a limited period (paragraph 9.4 of the Views) (In this regard, see, in particular, the decision of the Inter-American Court of Human Rights of August 5, 2008 in the case of Apitz Barbera y otros vs. Venezuela, párrs 42 a 46.).
The Committee recalls that an important aspect of the fairness of the proceedings is their promptness and that delays in the proceedings, which cannot be justified by the complexity of the case or the conduct of the parties, constitute a departure from the principle of fair trial enshrined in article 14, paragraph 1 (paragraph 9.5 of the Considerations).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's claim that, in violation of article 14, paragraph 1, of the Covenant, the Administrative Disputes Court No. 2 was not independent and impartial, since its composition was composed of judges acting temporarily... In connection with the communication under consideration, the Committee takes note of the author's argument that the composition of Court No. 2 for Administrative Disputes was entirely composed of judges appointed to this position temporarily and who could be replaced without any grounds, proceedings and the possibility of appeal, as evidenced by the judicial practice of the Constitutional Chamber of the Supreme Court. Since the State party has not provided information refuting these allegations or proving the existence of guarantees of the irremovability of judges, in particular guarantees of protection of the judges concerned from arbitrary dismissal, and also taking into account the described political situation, against the background of which external management was introduced in the author's company, on the basis of the information available to it, the Committee concludes that judges from the The administrative Dispute Courts No. 2 did not enjoy the necessary guarantees of independence provided for in article 14, paragraph 1, of the Covenant, in violation of this provision (paragraph 9.3 of the Considerations).
The Committee takes note of the author's complaint due to the fact that: the satisfaction of the petition filed by him for the recusal of the judicial staff of Court No. 2 for administrative disputes was refused in the first instance by the decision of the judge replacing the staff member, the author appealed this decision on appeal on the grounds that it should have been taken collectively and that in the presentation of arguments and evidence, as required by the Organic Law on Administrative Dispute Courts, was refused; The decision on the appeal was made by the Chairman of Court No. 2, who himself was one of the judges whose recusal was requested by the author... In the present case, participation in the proceedings on the motion for recusal of the judge, whose request for recusal was contained in this motion, raises doubts about his impartiality. Since the State party has not provided information that would deprive the author's allegations of credibility, the Committee concludes that the author was not provided with an impartial trial in accordance with the requirements of article 14, paragraph 1, of the Covenant (paragraph 9.4 of the Views).
The Committee takes note of the author's complaint about the excessive length of the proceedings on his application in the framework of an administrative application for invalidation of the decision... With regard to the case under consideration, the Committee notes that the application for invalidation of the decision in an administrative dispute has still not been considered, although more than six years have passed since it was filed, and the State party has not provided convincing arguments to explain the delay in resolving this case. In view of the above, the Committee considers that the author was not provided with a fair trial by an impartial court in accordance with article 14, paragraph 1, of the Covenant. Thus, the Committee concludes that the author's right recognized in article 14, paragraph 1, of the Covenant has been violated (paragraph 9.5 of the Views).
The Committee's conclusions: The facts reveal a violation of article 14, paragraph 1, of the Covenant (paragraph 10 of the Views).