CASE OF LÓPEZ MENDOZA v. VENEZUELA-JUDGMENT OF SEPTEMBER 1, 2011
(Merits, Reparations, and Costs)
I. INTRODUCTION TO THE CASE AND PURPOSE OF THE DISPUTE
- 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. 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. 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.
- 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.”
- 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.
- 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.
- 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.
- 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.” 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
- By way of the Order of December 23, 2010, 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.
- 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 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.
- The public hearing was held on March 1 and 2, 2011, during the 90th Regular Period of Sessions of the Court, carried out at the seat of the Court, in the city of San Jose, Costa Rica.
- On the other hand, the Court received amicus curiae briefs from the Asociación Venezolana de Derecho Constitucional [Venezuelan Association of Constitutional Law]; The Human Rights Foundation; Mr. Jorge Castañeda Gutman; Mr. Hugo Mario Wortman Jofre, and The Carter Center. These briefs develop diverse ideas regarding judicial guarantees and political rights.
- 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.
- 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 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.
- 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 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.
- The Inter-American Court has jurisdiction, under the terms of Article 62(3) of the Convention, to hear this case, given that Venezuela has been a State Party to the American Convention since August 9, 1977, and recognized the Court's contentious jurisdiction on June 24, 1981.
- Based on that established in Articles 46 and 50 of the Court Rules of Procedure, as well as in its jurisprudence on evidence and its appraisal, the Court will examine and assess the documental evidentiary elements submitted by the parties in the various procedural opportunities, as well as the declarations of the alleged victims, the testimonies, the expert reports rendered by sworn statement before a notary public and in the public hearing before the Court, as well as the evidence to facilitate adjudication requested by the Court. Accordingly, the Court will adhere to the principles of sound judicial discretion, within the appropriate normative framework.
- Documentary, testimonial, and expert evidence
- The Court received the sworn statement rendered before a notary public (affidávit) of three expert witnesses and one witness:
Humberto Nogueira Alcalá, expert witness proposed by the Commission, University Professor, who rendered an expert report on: i) the permissible limits and scope of political rights in light of the Inter-American and international standards and ii) “the compatibility of the administrative proceeding exercised by the Comptroller General of the Republic of Venezuela to impose the disqualification from holding public office in light of the rights enshrined in the American Convention”;
Jorge Carpizo, expert witness proposed by the representatives, Professor of the Postgraduate Division of the Law School of the Universidad Nacional Autónoma of México, who rendered his expert report on: i) the standards of Constitutional Comparative Law, particularly in Latin America, in relation to the political rights and acceptable restrictions that may be imposed; ii) the grounds, proceedings, and content of the sanctions, and iii) the importance of the full respect for political rights in a democracy;
Yadira Espinoza Moreno, expert proposed by the State, former General Technical Director of the Comptroller General of the Republic, who declared on: i) “the work carried out by the State of Venezuela against corruption," and ii) “the normative advances it has effectuated" in this regard, and
Marielba Jaua Milano, witness proposed by the State, General Director of State and Municipal Oversight of the Comptroller General of the Republic, whom declared on: i) “the proceedings of investigative power and the determination of responsibility carried out by the Comptroller General of the Republic against Mr. López Mendoza” and ii) “the rights and guarantees that were [allegedly] taken into account during said proceedings."
- In regard to the evidence rendered during the public hearing, the Court heard the statements of the alleged victim, a witness, and four experts:
- a) Leopoldo López Mendoza, alleged victim proposed by the Commission, who declared on: i) "the disqualification which he underwent that prevented him from holding public office"; ii) “the [alleged] conditions for which he was prevented from participating in the 2008 regional elections," and iii) “[t]he [alleged] proceeding he underwent to contest the disqualification";
Christian Colson, witness proposed by the State, Attorney representing the Attorney General of the Republic, who declared on: his participation in the defense of the constitutionality of Article 105 of the Organic Law of the Comptroller General of the Republic and the National System of Fiscal Oversight, as well as the purpose, scope, and effect of said Article;
Alberto Arteaga Sánchez, expert witness proposed by the representatives, Professor of Criminal Law of the Universidad Central of Venezuela, who rendered an expert report on: i) “the system of political disqualifications as additional sanctions in Venezuelan legislation, in light of the Constitution of the Republic [...] of Venezuela, the Penal Code of Venezuela, the Law against Corruption, and the American Convention on Human Rights" and ii) background and requisites for applicability and admissibility" of the system of disqualifications;
Antonio Canova González, expert witness proposed by the representatives, Professor of Constitutional Law and Administrative Law of the Universidad Central de Venezuela, Católica Andrés Bello, and Monteavila, who rendered an expert report on: i) “the legal restrictions that are appropriate in regard to political rights"; and, ii) “the scope of political rights in Venezuela in light of the Constitution of [...] Venezuela," and iii) “the jurisprudential standards established by the Constitutional Chamber of the Supreme Tribunal of Justice for said purpose”;
Jesús Eduardo Cabrera Romero, expert witness proposed by the State, director of the magazine, Derecho Probatorio [Evidence Law], undergraduate Professor of the Universidad Católica Andrés Bello, former member of the Legislation and Jurisprudence Commission of the Ministry of Justice, former President of the Commission for the Automation of the Notarization and Registration System of the Ministry of Justice, former Associate Judge of the Civil Cassation Chamber of the Supreme Tribunal of Justice, and former Magistrate of the Supreme Tribunal of Justice, who rendered an expert report on: “the jurisprudential standards, issued by the Constitutional Chamber of the Supreme Tribunal of Justice, related to the difference that exists between the policy of political disqualification and the disqualification from holding public office, as well as the compatibility of the latter with the Constitution of the Bolivarian Republic of Venezuela," and
Alejandro José Soto Villasmil, expert witness proposed by the State, Judge of the Second Court of Administrative Disputes, who rendered an expert report on: “the administrative proceedings regarding the declarations of administrative responsibility," relevant to this case.
- Admission of documentary evidence
- In the present case, as in others, the Court admits the evidentiary value of said documents submitted by the parties at the opportune procedural moment that were neither contradicted, objected, nor their authenticity questioned.
- In regard to the press releases, this Court has considered that they may be assessed when they entail public and notorious facts or declarations by officials of the State, or when they corroborate issues related to the case. The Court decides to admit said documents that are found to be complete or where, at least, their source can be verified and their date is published, and will assess them within the body of evidence, the comments of the parties, and rules of sound judgment.
- The Court notes that the State questioned the evidence submitted by the representatives in regard to the alleged violations of Article 24 of the American Convention upon noting that "they based their complaint on alleged declarations rendered before social, printed, and audiovisual means of communication that cannot be considered sufficient evidence of the violation of rights and guarantees, since this involves instruments that express the interpretation that the social media gives to the information provided by the interviewee regarding the matter, which does not indicate with certainty that the information came from where it was said to come from or that it is true”; and that “they can, upon not being a true reflection of the assertions of the declarant, even be considered as evidence.” As such, the Court considers that these comments make reference to the merits of the controversy, which the Court will assess in the pertinent part of the Judgment (infra 190 to 195), the cited evidence in relation to the proven facts of the case, in conformity with the focus of the litigation, considering the body of evidence as a whole, the observations of the State, and the rules of sound judgment.
- On the other hand, together with the final written arguments, the representatives and the State submitted various documents as evidence, those which were requested by the Court as established in that provided in Article 58(b) of the Court Rules of Procedure (supra 11 and 12), which will therefore be incorporated and assessed where appropriate together with the body of evidence, the comments of the parties, and the rules of sound judgment.
- Lastly, pursuant to that indicated in the note of the Secretariat of the Court on March 8, 2011, the videos and audio included in a CD labeled "Agresiones a Leopoldo López transmitidas por VTV (Canal Oficial del Estado Venezolano)” [Attacks against Leopoldo López transmitted by VTC (Official Channel of the State of Venezuela], presented by the representative during the public hearing (supra 9 and 11) were not incorporated into the case file. The plenary of the Court considered that said videos and audio were not related to the specific legal issues the Court is resolving in this case.
- Admission of testimonial and evidentiary evidence
- In regard to the statements rendered before a notary public by three expert witnesses and one witness; and the alleged victim, one witness, and four expert witnesses presented at the public hearing, the Court will admit them and deems them relevant only in what regards the purpose defined by the President of the Court in the Order requesting them, (supra para. 7) and the purpose of this case, considering the comments.
- Pursuant to the jurisprudence of the Court, the declarations rendered by the alleged victims cannot be assessed in isolation but rather together with the body of evidence in the proceeding, given that they are useful in the sense that they can offer more information on the alleged violations and their consequences. Based on the aforementioned, the Court admits said statements, (supra para. 17(a)), without failing to consider that the evidence be assessed under the mentioned criteria (supra para. 15 and 23).
- PROVEN FACTS
Prior considerations regarding facts not included in the application
- Arguments of the parties
- The representatives of the alleged victim argued that in relation to the various domestic instruments to prosecute corruption "there exists a selective State policy regarding its application" and "instruments of political persecution" that “deprive one [of rights] who acts as a dissident against the government and has clear aspirations and a high probability of winning the election." In this way, for the representatives, the administrative investigations against Mr. López Mendoza were initiated "during an election campaign for mayor." Moreover, they cited a report from the Inter-American Commission regarding Venezuela from 2009, wherein it indicated that:
[it] ha[d] received allegations stating that mechanisms have been created in Venezuela to limit the chances that opposition candidates who are government dissidents have to hold power. Specifically, in the most recent regional elections held in Venezuela in November 2008, the Commission received information, through both its hearings and in the individual cases presented to it, indicating that around 400 persons had their political rights restricted through administrative resolutions taken by the Office of the Comptroller General of the Republic based on Article 105 of the Organic Law […]. The information reported was that the Comptroller of the Republic had decided to disqualify these persons from running for public office on the grounds that they had engaged in irregularities in the exercise of their time in public office. The information received by the Commission shows that a great majority of the disqualified persons belonged to the political opposition.
- On its behalf, the State noted that “there is no political persecution," but that "each time a public employee is sanctioned from a political party of the opposition for administrative reasons, one immediately [concludes] that it is political persecution." It added that the sanctions "have been applied to public officials [...] of every political party because the idea is precisely that—to combat corruption."
Considerations of the Court
- It is the jurisprudence of the Court that the alleged victims, their family members, or representatives in the contentious proceedings before this Court, may invoke the violation of rights different from those included in the Commission’s application, so long as they refer to facts already included in the application, which constitutes the factual framework of the proceeding. In turn, given that a contentious case is substantially litigation between a State and a petitioner or alleged victim, the alleged victims or their representatives may refer to facts that explain, contextualize, clarify, or reject those mentioned in the application or even respond to the claims of the State, depending on their arguments and the evidence they provide, without this invalidating the procedural balance or adversarial principle, since the State has the procedural opportunities to respond to the arguments of the Commission and the representatives during each stage of the process. Furthermore, at any stage of the proceedings before the judgment is rendered, the Court may be presented with supervening facts, provided they are tied to the facts of the case. The Court must determine in each case the need to establish the facts as presented by the parties, taking into account other elements of the body of evidence, while respecting the right of defense of the parties and the subject of the
- In the present case, the Court finds that notwithstanding the report presented by the Inter-American Commission in 2009, cited by the representatives (supra 25), said body did not include in its application any specific reference to other disqualified persons - apart from Mr. López Mendoza – and his situation. The Commission also did not include facts related to a context or pattern of alleged political persecution that frames the context of the administrative proceeding held against the alleged victim nor did it specifically mention facts regarding the alleged context of “restrictions on the ability to rise to power of government dissident, opposition candidates.”
- In this regard, even though in prior occasions the Court has ruled on, in the merits of a case, whether to assess the background or context of a case, to carry out a specific analysis, it is necessary for the Commission to have developed specific arguments, something which did not occur in the present matter in regard to the alleged context or pattern in which in the alleged violations against Mr. López Mendoza took place. As such, considering these procedural reasons, the Court considers that it is not appropriate to issue a ruling on the facts alleged by the representatives that were not raised in the application of the Commission.
- Proven facts related to the sanctions imposed on Mr. López Mendoza
- On August 4, 2000, Leopoldo López Mendoza was elected by popular vote as Mayor of the Municipality of Chacao and reelected to the same position on October 31, 2004, a position he carried out for eight years, until November 2008. Upon finalizing his term of office, he aspired to run as a candidate for Mayor of the State of Caracas in the respective elections. Nevertheless, he was unable to run as a candidate due to two sanctions of disqualification imposed on him by the Comptroller General of the Republic in the framework of two administrative proceedings. The first investigation to which Mr. López Mendoza was subject is related to the facts that occurred during his tenure at the company Petróleos de Venezuela S.A. [Venezuela Petroleum S.A.] (hereinafter "PDVSA"), before being Mayor (infra 40 to 43). The second investigation entails facts that occurred in the framework of his actions during his tenure as Mayor (infra paras. 65 to 66). To understand the scope of said investigations, it is necessary to specify the nature of the powers of the Comptroller. Below, the undisputed facts are highlighted which relate to these investigations, specifying, first, the normative framework from which the Comptroller carried out the respective investigations.
- The Comptroller General of the Republic and the National System of Fiscal Oversight
- The Comptroller General of the Republic is a constitutional-ranking body that since the Constitution of the Bolivarian Republic of Venezuela of 1999 came into force, went on to form part of the Citizen’s Branch [Poder Ciudadano, or "Citizens' Power"]. This Branch, which is made up of the Ethics Council [Consejo Moral Republicano], is composed of the Ombudsman, the Public Prosecutor’s Office, and the Comptroller General of the Republic. Following that established by Constitutional Article 274, the existence of this new branch of Public Power has, among its attributes, the prevention, investigation, and punishment of facts that threaten public ethics and administrative morals. It also safeguards good governance and assures legality in the use of public goods.” The Comptroller General of the Republic is elected by a Postulation Evaluation’s Committee, of the Citizen Branch, or where applicable, by the National Assembly, by way of a favorable vote from two-thirds of the parties that form it.
- On the other hand, the Constitution enshrined in its Article 290 of the National System of Fiscal Oversight, which is defined as “the set of bodies, structures, resources, and proceedings that, integrated under the supervision of the Comptroller General of the Republic, interact in coordination to achieve unity in direction of the oversight systems and procedures that help to achieve the general objectives of the various entities and bodies subject to this Law, as well as the proper function of Public Administration.”
- In 2001, the Organic Law of the Comptroller General of the Republic and the National System of Fiscal Oversight (hereinafter LOCGRSNCF). This Law was adopted, unanimously, by all the parties with representation in the General Assembly, and it reformed similar laws adopted in 1975, 1984, and 1995, those of which included the possibility of disqualification from holding public office as a consequence of administrative responsibility. The LOCGRSNF of 2001 specified the government officials and persons that would be subject to the control, vigilance, and investigation of the Comptroller, and provided for the possibility of imposing sanctions for actions, events, or omissions, generators of administrative In said law, it is established that administrative responsibility would generate a penalty fine and that the Comptroller may impose sanctions of suspension, dismissal, or disqualification from holding public office:
Article 105: Upon a declaration of administrative responsibility, pursuant to that enshrined in Articles 91 and 92 of this Law, one will be punished with a fine as set in Article 94, in accordance with the severity of the offense and the type of detriment caused. It so corresponds to the Comptroller General of the Republic, in an exclusive and excluding manner, without other proceedings, to call upon the attention of the entity that committed the illicit act, the suspension of the exercise of said charge without salary benefits for a period of no more than twenty-four (24) months or the dismissal of the person deemed responsible, a punishment whose execution will be the responsibility of those of the highest authority; and to impose, heeding to the severity of the irregularity committed, the disqualification from holding public office for a maximum of fifteen (15) years, case in which the relevant information must be submitted to the agency responsible for administration of human resources of the entity or body where the events took place in order for it to carry out the relevant procedures. In those cases where administrative responsibility is declared of the highest authority, the sanction will be executed by the body charged with appointment, removal, or disqualification. The maximum authorities of the bodies and entities established in the numerals 1 to 11 of Article 9 of this Law, before proceeding with the appointment of any public official, are obligated to consult the registry of those disqualified created and maintained by the Comptroller General of the Republic. Any appointment done outside of this rule will be deemed null.
- On July 9, 2007, the Comptroller General issued an official letter addressed to the Mayors of the country regarding the application of sanctions established in Article 105 of the LOCGRSNCF. Pursuant to the official letter, the imposition of the sanctions of suspension, dismissal, or disqualification “require, as the only and exclusive assumption for a declaration of administrative responsibility, that it be the result of a prior, preparatory, and necessary proceeding to allow the application, considering the type and severity of the crime, of the mentioned sanctions.” The Comptroller specified that “the sanctions mentioned, apart from the pecuniary nature alluded to in Article 105 eiusdem, are acts established as a consequence, once the administrative illicit act is proven and the administrative responsibility is determined.” In this context, it noted that:
- “the sanction of suspension from the exercise of a public charge without paid leave, implies for the recipient, the temporary separation, in the conditions alluded to, from the charge held at the moment of the execution. Once the action is verified, the official may be reincorporated into the exercise of public office to the same conditions that existed prior to the sanction becoming effective.
- "[r]egardling the dismissal of the person responsible, [...] it involves breaking the link or relationship between the recipient and [the] entity or agency which he or she provides services for at the moment when the measure is applied."
- "[f]or its part, the disqualification from holding public office for up to fifteen (15) years, results in, as in the case referred to [...] previous[ly], on the one hand, the rupture or dissolution of the employment relationship that may exist for the period the disqualification is sought, and [on] the other hand, the total inability to hold any other public office for the duration of the disqualification."
- The Comptroller indicated that the noncompliance of the instructions it imparts regarding the execution of these sanctions generates responsibilities for the respective government officials and requested information on the consultation to the registry for disqualified persons.
Administrative proceeding in relation to the activity of Mr. López Mendoza in PDVSA
- In 1998, Mr. López Mendoza worked as an Analyst of Entorno Nacional [National Environment] in the Office of the Chief Economist of PDVSA. At that time, he was also founder of the nonprofit Civil Association Primero Justicia [First Justice].”
- On July 24, 1998, a Memorandum of Understanding between the Inter-American Foundation (IAF) and PDVSA was signed within the so-called Framework for the Development Base (MDB) by which disadvantaged groups organized to achieve their social, cultural, and economic well-being. In the framework of this memorandum of understanding, on December 23, 1998, a donation was made to the benefit of the Civil Association Primero Justicia for the sum of sixty million, sixty thousand Bolivares (Bs 60,060,000.00), which was granted under the Cooperation Agreement between PDVSA and the IAF, in connection with the project entitled “Expansión y consolidación de la justicia de paz en los Estados Monagas, Anzoátegui, Sucre y Delta Amacuro: una oportunidad para la equidad en un contexto de crecimiento económico Regional” [Expansion and consolidation of justice for peace in the States of Monagas, Anzoátegui, Sucre, and Delta Amacuro: an opportunity for equity in a context of regional economic growth]. Similarly, a donation was made in the amount of twenty-five million Bolivares (Bs 25.000.000.00) to the benefit of the same association, this time to support the project entitled “Educando para la Justicia 1998-1999” [Educating for Justice 1998-1999], which was delivered on September 11, 1998.
- At the time of the donation, the mother of Mr. López Mendoza, Antonieta Mendoza de López, played roles as Manager of Public Affairs of the Service Division of PDVSA.
- The facts related to the activities of Mr. López Mendoza in the company PDVSA led to a proceeding and the corresponding sanctions, of fines and of disqualification. The general accusation against the alleged victim was related to his having engaged in a "conflict of interest" in relation to these donations, given that he served both as an employee of PDVSA as well as a member of the Board of Director of the organization receiving the donations of said company, as well as the fact that his mother was the one who authorized one of the donations.
- Phase of actions of fiscal oversight
- In May 2000, PDVSA’s Corporate Internal Audit Department drafted a report to verify the legality, reasonability, and compliance of the terms agreed to in the Memorandum of Understanding between [IAF and PDVSA], with particular emphasis on the selection of grantee institutions and the results of projects that used the donations during 1998 and 1999.
- As part of its powers, the Oversight Department of the Industry, Production, and Commerce Sector of the Comptroller General of the Republic (hereinafter the "Department of Industry Oversight") examined the audit report mentioned in the context of the review of the financial contributions from PDVSA under the guise of grants and donations. The study verified the legality, reasonableness and compliance with the agreed upon terms in the Memorandum regarding the provisions of the domestic regulations of the petroleum corporation. In particular, the provision of grants and donations to nongovernmental organizations, foundations, and civil associations was examined for the period between 1998 and 1999, in order to improve the administration of the agreement.
- On September 8, 2003, an order was issued to proceed with the start of the investigative phase, documented in the Case File No. 22/001/2003, which began in the framework of the reviews conducted by the Department of Industry Oversight. The record shows, inter alia, that: i) on May 14, 1998, Mr. López Mendoza had accepted “the Declaration on Conflict of Interests with the Board of Directors of [PDVSA], wherein he stated he was not the Principal Director, nor substitute nor employee, nor had he taken on executive, director, or administrative positions in any other institution, company, or commercial, industrial, or financial firm” and ii) at the time of the donation, Mr. López Mendoza “was an active employee in PDVSA and formed part of the Board of Directors of the mentioned association.” For this reason, the Department of Industry Oversight concluded that “sufficient elements existed to create an administrative file of the case, and it ordered, among other aspects, that legal notice be provided to those persons who were responsible for an action, event, or omission […] and to incorporate the documentary evidence provided by the interested parties into the case file.”
- On September 12, 2003, legal notice was provided to Mr. López Mendoza of said order to initiate, wherein he was informed that the Comptroller “is carrying out an investigation on the contributions made by […] PDVSA for donations and grants during the years 1998, 1999, 2000, and 2001,” and a period was set in which to gather the evidence deemed necessary for his defense. Finally, he was informed that “he would be informed of the results of the investigation […], in the corresponding Report on Results, which would remain in Case File No. 22/001/2003.”
- On October 31, 2003, Mr. López Mendoza presented a brief in relation to the investigated facts, wherein he argued “that the fiscal oversight body did not comply with its obligation to inform him ‘in a specific and clear manner on the facts of the charges against him.’ Nevertheless, […] he formulated the arguments he considered ‘were pertinent to the facts narrated in the official notification letter.” Moreover, he noted that he had not satisfied any of the circumstances foreseen in the “Conflict of Interest Regulations” given that he did not gain any benefit from the donations nor did he fail in his commitment expressed in the Declaration on Conflict of Interests. Also, he alluded to distinct documents in the administrative case file and recorded those deemed pertinent.
- The result of the investigation phase was the Report on Results of the Department of Industry Oversight. In said report, the following was indicated regarding the investigated facts, events, and omissions regarding three (3) donations made by PDVSA, two (2) of them to the benefit of the Civil Association Primero Justicia. The report noted regarding the first donation made, that: i) the donation was carried out without contractually establishing “the specification of the objectives for which the donation was intended, its use, the purpose or period of the donation, the management of bank accounts, schedule of reimbursements, reports which the recipient (donee) must present, as well as the follow-up activities that the donor would carry out (PDVSA)” ; ii) the donation was formalized by [Mrs.] Antonieta Mendoza de López, […], who ordered the request for issuance of the check and the draft of the donation document, despite the existence of “a direct family relationship between her (the mother) and the citizen Leopoldo López Mendoza (the son), […], who at the time of the donation (December 23, 1998), held a position as a member of the Board of Director of the Civil Association (the beneficiary of the donation)”, and iii) Mr. López Mendoza “was an active employee of the PDVSA (Analyst of Entorno Nacional [National Environment]) where he had signed a conflict of interest.[…] ‘the Declaration on Conflict of Interests.’” On its behalf, regarding the third donation, it was noted that: i) the donation was carried out without contractually stipulating the prior mentioned requisites, and ii) Mr. López Mendoza held a position in PDVSA and was a member of the Board of the Association. As such, the report concluded that it would “forward the Report on Results to the Office of the Determination of Responsibility, in order for it to carry out the corresponding assessment.”
- Proceeding in relation to some of the decisions adopted by Mr. López Mendoza as Mayor of Chacao
- As mentioned, Mr. López Mendoza served as mayor of the municipality of Chacao (supra 30). Each year the Municipalities, one being the Municipality of Chacao, that make up the Metropolitan District of Caracas, had to transfer to the Metropolitan District 10% of "their own revenues.” On the other hand, the Municipal Councils could approve additional allocations to the Expenses Budget, at the request of the mayors, and for this, authorization could be declared on the total or partial annulment of certain budget consignations not used in full or those partially used.
- On October 25, 2002, Mr. López Mendoza declared a partial shortage of some budget appropriations. Subsequently, the Municipal Council of Chacao approved additional financial allocations which were financed with the resources resulting from the aforesaid entry, which had been declared as insufficient. These facts led to a proceeding and the corresponding sanctions, fines, and disqualification against Mr. López Mendoza. The accusations against the alleged victim was that he granted a different purpose to the respective budget consignment than that provided by law.
- Imposition of the sanction of disqualification
- On September 26, 2005, the Comptroller General issued a resolution indicating “the severity of the irregular activity committed, punishable through the declaration of administrative responsibility of November 2, 2004, affirmed on March 28, 2005 […], as well as the reoccurrence of the irregular activity that is the subject of the sanction in the aforementioned terms,” determining “the imposition on [Mr.] LÓPEZ MENDOZA, […], of the sanction of disqualification from holding public office for a period of six (06) years.”
- Facts related to the request to register as a candidate
- On July 21, 2008, the National Electoral Council (CNE) approved a law to regulate the running of candidates for positions won by popular election in November 2008. Article 9 of said regulation establishes that:
“[the] following may not run for a position through popular election […] 1.-[t]hose who committed acts enshrined in Article 65 of the Bolivarian Republic of Venezuela and the other laws of the Republic [, and] 2.- [t]hose who are subject to civil interdiction or disqualification.”189
- Previously, the CNE had received from the Comptroller General of the Republic a list of approximately four hundred (400) persons disqualified from holding public office due to administrative sanctions imposed by its Office.
Article 18 of the mentioned laws on the candidacy, note that the first step in running in an election is to enter, using electronic means, an automatic candidate system of the CNE and to fill out a form. For this, on August 5, 2008, Mr. López Mendoza entered the automatic system of candidates via the web page: www.cne.go.ve of CNE in order to register as a candidate. Pursuant to an annex presented by the Commission, the system indicated on the screen: “López Mendoza Leopoldo Eduardo. This person is politically disqualified (code 8),” while an annex presented by the State showed that the electronic system indicated that he had been “disqualified from holding public office by the Comptroller General of the Republic.” Mr. López Mendoza was not able to fill out the respective electronic form, which prevented him from formalizing the registration as a candidate for the position of Mayor of the Metropolitan District of Caracas before the Electoral Board of said district.
- After the imposition of the disqualification from holding public office, Mr. López Mendoza has: i) participated in the political organization “Movimiento Primero Justicia” (MPJ) [First Justice Movement], as a member of the National Board of Directors, since its registration in 2007 where new authorities were appointed; ii) participated in the political organization “Un Nuevo Tiempo Contigo” (UNTC) [A New Time with You], as Vice-President for Citizen Participation; iii) exercised his right to vote in the elections of November 28, 2008, and in the consultation regarding the constitutional amendment of February 15, 2009, wherein he was also selected as a polling station member; iv) carried out a position as National Director of a political organization “Redes Populares” [Popular Networks,] where he carried out activities of a political nature; v) presented the electoral proposal “TU Todos Unidos” [You, All United], and iv) ran as a part of the Partido Voluntad Popular [Popular Will Party].
VI. RIGHT TO PARTICIPATE IN GOVERNMENT [POLITICAL RIGHTS], RIGHT TO FAIR TRIAL [JUDICIAL GUARANTEES], JUDICIAL PROTECTION, AND EQUAL PROTECTION BEFORE THE LAW IN RELATION TO THE OBLIGATION TO RESPECT RIGHTS AND DOMESTIC LEGAL EFFECTS
- Arguments of the parties
Regarding the alleged violation of Articles 23, 8, and 25 in relation to Articles 1(1) and 2 of the American Convention, the Commission noted that "the purpose of the present case is centered on the imposition of restrictions to the political right of running for a public office –standing for election - to apply for a position won by popular vote" in the "absence of a founded criminal judgment rendered by a competent judge." It added that "the case also entails the existence of alleged procedural delays and ineffectiveness of the attempted domestic remedies." The Commission noted that "it will not attempt to debate the facts and the assertions and/or the errors in the assessment of the domestic Venezuelan tribunals in determining the declaration of administrative responsibility" of Mr. López Mendoza.
- The representatives agreed with the Commission but added various arguments regarding the alleged violation of judicial guarantees in the proceedings that led to a finding of administrative responsibility. Moreover, they alluded to the violation of the right to equality before the law. In relation to the irregularities Mr. López Mendoza was charged with regarding some donations issued when he was a public official of PDVSA, they indicated that the Comptroller General "fraudulently fabricated a sanctioning proceeding" and that the facts allegedly related to corruption "were, effectively and satisfactorily executed" in the framework of an agreement between the company PDVSA and a foundation. They indicated that "no proceedings were initiated or carried out against any of the members of the Board of Directors of PDVSA who approved the granting of said funds," that the Comptroller "dismissed any means of providing for a remedy or appeal," and that "there was no patrimonial harm/damage" and that the "funds were used for the legitimate and foreseen means." In relation to the actions that provoked the sanction related to the actions developed as Mayor by Mr. López Mendoza, they indicated that "they do not refer in any way to acts of corruption or appropriation of funds,” and it involved “the use of public funds that remained in a budget consignation as a result of the budget of said consignation, reason for which an administrative action was taken to allow for the sending of those funds to the Municipal Treasury, counting on the prior approval of the Municipal Comptroller, for the payment of teachers, firefighters, police, among others, reason for which the legal parameters were met and administrative acts were rendered, and reason for which all possibilities of a simulation were discarded, thereby denoting the fraudulent action and political persecution of the Comptroller.” They indicated that the Comptroller “carrying out a false appreciation of the facts and a manipulation of the law fabricated a sanctioning administrative proceeding with the intention of disqualifying from public office."
- The State argued that "it acted legitimately and in strict respect for human rights" when it declared, on two occasions, the administrative responsibility" of Mr. López Mendoza and upon "imposing on him, as a consequence, the sanction of disqualification from holding public office for a period of six years." TIV 1618 Moreover, it noted that "the sentence imposed by a competent judge, in a criminal proceeding," "is not the only way in which a person may be limited from exercising political rights" and that it is possible to do so in relation to the “civil capacity of the citizens, that is, their aptitude, their suitability for the exercise of a charge in public office.”
- Considerations of the Court
- In this regard, the Court specifies that it is not a criminal court or a forum appropriate for analyzing or determining criminal, administrative or disciplinary responsibility of individuals, and that it does not have jurisdiction to do this. As a consequence, the Court will not declare wither Mr. López Mendoza is guilty or innocent regarding the irregular actions for which he was sentenced, given that this is a matter for the Venezuelan jurisdiction.
- The following will be analyzed: i) the right to be elected; ii) a fair trial [judicial guarantees] in developed administrative procedures; iii) equality before the law, and iv) the obligation to adopt of domestic legal effects.
- Right to be elected
- The main point of this case lies in the sanctions of disqualification imposed on Mr. López Mendoza by way of a decision of an administrative body, applying Article 105 of the LOCGRSNCF, which prevented him from registering his candidacy for an elective office. After outlining the arguments of the parties, the Court will determine whether such sanctions and their effects on the alleged victim are compatible with the American Convention.
- Arguments of the parties
- The Commission and the representatives argued that the sanction for disqualification from holding public office unduly restricted the political rights of Mr. López Mendoza, given that it was imposed by an administrative proceeding and not by “sentencing by a competent court in criminal proceedings” as indicated in Article 23(2) of the American Convention, in such a way that “only a criminal court in a criminal proceeding can restrict the right” and “any restriction rendered from said proceeding must strictly respect criminal guarantees.” He added that “the Comptroller General and its respective agencies are not criminal judges or tribunals in a strict sense and its decisions pertain to the administrative forum.” Moreover, it indicated that the alleged victim "is subject to restrictions that prohibit his nomination and appointment to public office, [in such a way that] when he tried to register to participate in elections for mayor of the Metropolitan District of Caracas [...] his disqualification materialized.”
The representatives added that “Article 105 [of the LOCGRSNCF] has not been able to establish political disqualification to hold public office by public vote, given that pursuant to Article 30 of the American Convention the law can only develop restrictions that are already authorized by the American Convention, and in this case, the only authorized political disqualification is one that a competent court in a criminal proceeding can establish.” Moreover, they expressed that “Article 105 is a restriction that is more serious than those foreseen by the Convention” in violation of Article 29 of the American Convention. In the specific case, the representatives argued that the “constitutional provisions [particularly Articles 65 and 42] are clear and compatible with the American Convention upon affirming that the criminal responsibility, due to the management of public funds, as a consequence, generates the disqualification of the convicted person, upon a final judgment.”
- On its behalf, the State expressed that Article 105 of the LOCGRSNCF “must be interpreted pursuant to the parameters established in Article 30 […]of the Convention, which specifies the scope of the permitted restrictions to the enjoyment and exercise of rights and freedoms so recognized, that can be applied pursuant to the laws rendered for reasons attributed to the general interest and for the purpose for which they were established.” In this regard, the State noted that “in the unlikely event that there is a contradiction between Article 23(2) [of the Conviction] and the Constitution […] of Venezuela, the prevalence of the international treaty is not absolute or automatic.” Therefore, the State argued that “that which is enshrined in Article 23(2) cannot be invoked in isolation, […] against the competence and duties of the National Public Power, as is the Citizen or Moral Power.” It further argued that “the sanction of disqualification from public office for a period of time, imposed by the Comptroller General of the Republic, [...] is not a disqualification of a political nature, and therefore, it is totally different from a political disqualification [...] that derives from a criminal conviction, declared by a judge in a final judicial decision, after having gone through a criminal proceeding.” Under this argument, the State raised the issue that "a political disqualification suspends the exercise of all political rights of the convicted, which is a circumstance that is radically different from what happens in the course of the sanction of disqualification from public office, [... ] which only disables the subject from the exercise of public functions for a given period, regardless of the way such position comes to be held[. T]his [...] can be by appointment, contest, appointment, or popular election, and obviously, as a result of this impediment may not register to qualify for elected office, because that is precisely the mechanism that would allow entry to the exercise of public functions.” In support of this argument, the State made an extensive presentation on how its domestic courts have interpreted the laws applied in this case, as well as on legislation enacted by other countries in the fight against corruption. Moreover, the State also argued that the sanction of disqualification imposed by the Comptroller is aimed at fighting corruption and protecting public funds, which serves a compelling governmental interest.
- Considerations of the Court
The Court must determine whether the sanction of disqualification imposed on Mr. López Mendoza by a decision of an administrative body and the subsequent failure to register his candidacy for an elective office is compatible with the American Convention. It is not necessary, however, that the Court rule on the interpretation of Venezuelan domestic law and in particular on the compatibility or incompatibility of Article 105 of the LOCGRSNCF with the Venezuela Constitution. Moreover, the Court also considered that in deciding this case it is not necessary to rule on the arguments of comparative law presented by the State. If in the future, a case appears before the Court in which one of the standards cited by the State is applied, it then follows suit to analyze it in the light from the provisions of the American Convention.
- Thus, referring specifically to the particular case at hand, the Court understands that this issue should be resolved through the direct application of the provisions of Article 23 of the American Convention, because it involves sanctions that imposed a clear restriction on one of the political rights recognized in paragraph 1 thereof, without complying with the applicable requirements in accordance with paragraph 2 thereof.
- Article 23(1) of the Convention establishes that every citizen shall enjoy the following rights and opportunities, which must be guaranteed by the State under equal opportunity: i) to take part in public affairs, directly or through freely chosen representatives; ii) to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and iii) to have access to the public service of one’s country.
- Article 23(2) of the Convention sets out the various causes that can restrict the rights recognized in Article 23(1) and, where applicable, the requirements that must be met for such a restriction to be applied appropriately. In this case, which is about a restriction imposed by way of a sanction, it should be about a “conviction by a competent court in criminal proceedings.” None of these requirements have been fulfilled, given that the body that imposed the sanctions was not a "competent court,” there was no "conviction," and the sanctions were not applied as a result of a "criminal proceeding,” where the judicial guarantees enshrined in Article 8 of the American Convention should have been respected.
- The Court considers it appropriate to reiterate that “the effective exercise of political rights is an end in itself and, a fundamental means that democratic societies have to ensure that other human rights enshrined in the Convention are guaranteed and that their holders, in other words, citizens, not only enjoy rights, but also "opportunities.” The latter term implies the obligation to guarantee with positive measures that anyone who holds formal political rights has a real opportunity to exercise them. In this case, although Mr. López Mendoza was able to exercise his political rights (supra 94), it is fully proven that he was deprived of passive suffrage, that is, the right to be elected.
- Under the foregoing, the Court finds that the State violated Articles 23(1)(b) and 23(2) in relation to Article 1(1) of the American Convention, to the detriment of Mr. Leopoldo López Mendoza.
- Judicial guarantees regarding the administrative proceedings
- Notwithstanding the foregoing, regarding the right to be elected, the Court shall proceed with an analysis of the controversy between the parties regarding the alleged violation of various guarantees in the administrative proceedings that took place both for the imposition of the fine as well as for the disqualification as a candidate.
- The Court has stated that all bodies which exercise functions of a judicial nature, whether criminal or not, have a duty to adopt fair decisions based on the full respect for the guarantees of due process established in Article 8 of the American Convention. The Court also recalls that established in its jurisprudence in that the administrative and disciplinary sanctions are, like the criminal ones, an expression of the punitive power of the State and, on occasions, of the same nature.
- Guarantees in the administrative proceeding that resulted in a fine
- The Commission did not develop specific arguments regarding the alleged violation of the right to defense and the presumption of innocence in relation to the administrative responsibility proceedings that resulted in sanctions in the form of a fine. Therefore, in the following sections, the controversy between the representatives and the State will be analyzed in respect to these guarantees.
Right to defense and right to appeal the sanctioning decision
- The representatives argued that Mr. López Mendoza “was not guarante[ed] the right to be heard within a reasonable period of time” nor “the appropriate time or means to prepare his defense” and was granted only “15 working days to present evidence and defend himself” after the charge against him was filed. Similarly, they also noted that "he was not guaranteed the right to be assisted by counsel provided by the State nor the right to question witnesses.” They also indicated that the alleged victim was denied the “right [...] to request the temporary suspension of sanctions during the annulment hearing,” that “a corresponding charge was never provided,” and that “only a motion to reconsider was possible” before the same official who imposed the sanctions.
- In this regard, the State indicated that the administrative proceeding, consisting of various procedural phases and stages “offered all the guarantees for the individual to defend his rights and interests.” Moreover, it added that the Inter-American System cannot act as a fourth instance in cases brought before its jurisdiction.
- Considerations of the Court
- The Court notes that in the public hearing in this case, Mr. López Mendoza noted that “he never [was given] the opportunity to present [his] arguments.” According to the alleged victim, the administrative procedures “led to some fines,” without “following the corresponding steps that would allow for the possibility of being heard.”
- According to expert witness Soto Villasmil, “[i]n order to prevent or punish the crimes of an administrative nature,” the Venezuelan State has established that the relevant proceedings to determine responsibility are made up of a series of phases in which, from the onset, “assessments of the arguments are gathered as well as [the evidence brought forward] by the legitimate interested parties allegedly responsible [...] in order to contest the presumed actions being alleged.” This is brought forward in addition to the subsequent “remedies.”
- The Tribunal has previously established that the right to defense should be exercised from the point in which a person is a possible perpetrator or participated in a criminal act, and it ends when the proceeding is final. To prevent a person from exercising his or her right of defense is to strengthen the investigative powers of the State at the expense of the fundamental human rights of the person being investigated. The right to defense requires the State to treat the individual at all times as a true subject of the proceeding, in the broadest sense of the concept, and not merely as a subject therein. Thus, the Court notes that at the various phases of the administrative proceedings on responsibility, opportunities and hearings were offered to Mr. López Mendoza for the presentation of arguments and evidence. In fact, the alleged victim actively participated in the proceedings against him, was provided legal notice of the initiation of these proceedings (supra 48 and 70), had the opportunity to be represented by counsel, presented testimonial and documentary evidence (supra paras. 61, 75, and 86), filed appeals (supra paras. 56, 61, 73, 79, and 84), always obtaining responses to his requests. Thus, the Court finds that no violation of the right to the defense of Mr. López Mendoza regarding administrative and judicial authorities that rendered decisions regarding fines in his case.
- Furthermore, given the questioning of the alleged victim regarding the lack of specification regarding the charges filed against him, the Court notes that the evidence in the record allows one to understand that from the initial phase of investigation there was clarity regarding the type of material irregularities regarding the investigation concerning Mr. López Mendoza. Thus, from an initial point, he was notified that the Comptroller was to conduct "an investigation into the contributions made by [...] PDVSA, regarding grants and donations during the years 1998, 1999, 2000 and 2001" (supra 48) and that the Director of Municipal Oversight requested "a detailed report on the use of resources destined for the Metropolitan Mayor’s Office of Caracas” in the fiscal 2002 year (supra para. 70). The Court noted that, notwithstanding the declaration of the alleged victim in the sense that "there was never any sign of damage to the public good," he submitted respective discharge briefs and evidence after the respective notifications (supra para. 49, and 70), making it possible to conclude that Mr. López Mendoza, reasonably, was clear on the facts of investigation that could possibly be used against him.
Furthermore, the Court considers that it is not per se contrary to the American Convention that it be established in domestic law of the States that in certain proceedings, certain procedural actions not be subject to objections. Additionally, the Court notes that the representatives did not present sufficient argumentation on the adverse impact that this impossibility to contest the proceeding might have had on Mr. López Mendoza’s right to defense. The evidence in the record allows for the conclusion that not challenging the procedural actions did not affect the ability to challenge subsequent actions nor did it prevent, on the whole, the due defense regarding the fines that were imposed on the alleged victim.
- On the other hand, the Court notes that no specific argumentation was presented to substantiate that the 15 working days to provide evidence per se constituted a disproportionate restriction of the right to defense. Thus, in the specific case, the representatives did not show how that period limited the possibility of an adequate defense, as it has been demonstrated in another case before this Court that proved that a day for counsel to review the entire case file was a violation of the right to defend the accused.
- Moreover, the Court considers that the arguments of the Venezuelan domestic courts are not unreasonable for not having considered certain witnesses proposed by the alleged victim in the respective proceedings for the determination of responsibility. In any case, the Court notes that the representatives did not make a statement regarding the State's argument on the alleged testimonial evidence indicated by the defense of Mr. López Mendoza that despite the determination of dates to be put forward this evidence, were never submitted. Finally, the Court notes that Mr. López Mendoza had the opportunity to appeal the decision against him and that in response to the appeal for annulment filed there was a judicial assessment of the allegations of the defense in connection with the determination of the facts and the applicable law in connection with administrative offenses and fines imposed. (supra 57, 63, 80, and 85).
- For these reasons, the Court finds that there is no violation in regard to the right to defense and the right to appeal the sanctioning decision against Mr. López Mendoza, in connection with administrative proceedings that ended the determination of responsibility and in the imposition of fines.
The representatives stated that the presumption of innocence involves the “right to prove one’s innocence” and, nevertheless, in this case the charges against Mr. López Mendoza are based on an "objective responsibility, [...] that does not [...] require guilt or injury for its imposition, but rather requires a mere transgression of the law regarding the management of public funds.” In this sense, the representatives questioned that “it was not of the same interest to determine the guilt of the defendant as it was to demonstrate the occurrence of the event.” Thus, they concluded that “the presumption of innocence was not guaranteed” and that “upon initiating the proceeding and even before the accused was given notice of [the] initiation of a proceeding against him, he had been charged for the same unproven acts and [that] he had not been able to contest them, before the civil and criminal courts.”
- In this regard, the State referred to the decision by the Constitutional Chamber of the Supreme Tribunal of Justice, in judgments of August 6 and 12, 2008, regarding the constitutionality of Article 105 of the LOCGRSNCF. In its final written arguments, in regard to the appeals filed for the actions of the Municipality of Chacao, the State argued that Mr. López Mendoza “claim[ed] in an unfounded manner that the judgment [at issue], took on a regressive stance regarding the right to presumption of innocence upon validating the argument that the alleged administrative responsibility under the LOCGRSNCF and in particular, that relating to the recipient change of the budgetary appropriations, are cases of objective administrative responsibility in which it is not necessary to assess the conduct of the accused.” Thus, the State argued the “objective character of the administrative offenses" and noted that the representatives contradict themselves upon “maintaining [...] on the one hand, that the aforementioned responsibility is subjective in nature and, on the other hand, that the same assumption of responsibility is by nature objective.”
- Considerations of the Court
- The Court notes that the Constitutional Chamber of the Supreme Tribunal of Justice has ruled on the presumption of innocence in regard to the application of Article 105 of the LOCGRSNCF as follows:
Its essential content is that throughout the administrative sanctioning or disciplinary proceeding, there should be evidentiary activity designed to establish the guilt of the official, without disclosing any opinion as to the merits of the matter. It is a right that directly involves how the evidentiary phase of the sanctioning proceeding is developed. Thus, the presumption of innocence requires that the act that declares administrative responsibility be the only determination of the culpability of the official under investigation.
- Subsequently, the Constitutional Chamber of the Supreme Tribunal stated that:
"... the sanctions contained in Article 105 [...] must be issued after the substantiation of the respective administrative proceeding in which the person under investigation may raise all the arguments and evidence deemed relevant to his or her defense and where, all procedural safeguards are guaranteed, among which is the presumption of innocence, so that from its inception until right before the issuance of administrative responsibility the individual under investigation is presumed innocent and this is the treatment that must be made. However, once the substantiation of the proceedings and instruction in the case has been completed and the administrative responsibility for the commission of an unlawful administrative act has been determined, the presumption of innocence of the investigation is swapped, applying the punitive legal consequences provided for in said Article 105 [...] without this implying a violation of the constitutional guarantee of presumption of innocence, as it has already been asserted in the procedure-guarantee.”
- This Court has noted that the principle of presumption of innocence constitutes a foundation of the right to fair trial [judicial guarantees]. The presumption of innocence implies that the defendant must show that he or she committed the crime attributed to him or her, and that the onus probandi correspond to the accuser. Thus, the clear evidence of guilt is a prerequisite for criminal punishment, in such a way that the burden of proof falls on the prosecution and not on the accused. Thus, the lack of presentation of convincing evidence of responsibility in a guilty verdict is a violation of the principle of presumption of innocence, which is essential for the effective realization of the right to defense and accompanies the accused throughout the trial proceedings until a final judgment is issued that determines guilt. On the other hand, the presumption of innocence implies that judges do not initiate the proceeding with a preconceived idea that the defendant committed the crime for which he or she is being charged, as the burden of proof falls on the accuser and any doubt should be used to benefit the accused. The presumption of innocence is violated if, before the accused is found guilty, a court decision renders that he or she is guilty.
- Thus, the Court notes that in the phase of performance of fiscal oversight of the administrative proceeding at hand, (supra 38) the respective oversight bodies conduct account assessments, inspections, and audits to determine the alleged facts that could lead to an unlawful administrative action. Thus, the next phase of investigation (supra para. 38) arises only when derived from the previous phase, it is concluded that there is evidence to presume the administrative responsibility of some employees or officials in the exercise of their functions. The results report which concludes this phase also involves the carrying out of proceedings that involve the accused to debate and clarify if it is appropriate to proceed with the proceeding regarding determination of responsibility” that includes a specific phase for objections that extends into the oral or public hearing. (supra para. 39).
With regard to questions raised by the representatives regarding the viability of the alleged objective administrative responsibility under the LOCGRSNCF, the Court notes that a similar plea was answered by the Political-Administrative Chamber to resolve the appeal filed by the victim (supra para. 63 and 85).” The Political-Administrative Chamber of the Supreme Tribunal noted that "in terms of administrative responsibility, injury and guilt are not valued with the same rigor as in criminal law, and the mere establishment of fact enshrined in the law as unlawful or punishable is enough to verify the responsibility of public official.” In that sense, although the Chamber appreciates “that from the minutes of the administrative case file the need for justification regarding the approval of additional appropriations was evident, [...] the actions of both the Mayor of Chacao Municipality [...] as well as the Councilors who approved the appropriations with resources that came from Consignment No. 4.07.02.02.04, made them responsible 'objectively' as they were involved in the alleged conduct set out in paragraphs 21 and 22 of Article 91 of the [LOCGRSNCF].” Under the Supreme Tribunal of Justice, “despite the presumed intention of the municipal authorities of covering other expenses of the Municipality with the authorization of additional appropriations, the appellant diverted funds destined for the consignment corresponding to the transfer of funds to the Metropolitan District of Caracas.”
- Moreover, in this case, the Court finds no sufficient evidence that would allow it to consider that the victim has been treated as guilty in the proceeding that resulting in the imposition of fines. Overall, the different levels of oversight, from the start of the proceedings, granted Mr. López Mendoza respect as if he was a person whose disciplinary responsibility was still pending a clear and sufficient determination. In the case of disciplinary conduct, the oversight bodies, through different phases, sought to assess the potential responsibility of Mr. López Mendoza in regard to the alleged administrative offenses.
- Thus, the Court finds that there is no evidence that the State violated Article 8(1) of the Convention to the detriment of the victim, in relation to the presumption of innocence in proceedings against him which culminated in the determination of responsibility and fines.
- Now, once the arguments have been assessed regarding the controversies that relate to the imposition of fines, the Court will consider the allegations made by the parties regarding the alleged violation of judicial guarantees in the early stages of the proceedings that ended in the sanctions of disqualification from public office.
- 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]
- The Commission argued that Mr. López Mendoza "was subjected, without legal notice, to the discretionary decision of an administrative authority [that] was empowered to impose at the moment it so decided, and without an established time limit, the [additional] sanctions as serious as political disqualification, without establishing the cause for such a decision [with additional arguments that support the implementation of a more onerous punishment than that of a fine and without defining the standards used.
- The representatives indicated that there was no proceeding to “determine the severity of the offense and the type of damage caused, which were actually not existent.” In particular, the representatives argued that Mr. López Mendoza was “never provided with legal notice” of the “possibility of being subject [to] a disqualification” and that “there was no opportunity” to “defend [or contest] the seriousness of the facts and extent of the damage.” Moreover, they also noted that it was “impossible” for “a person who is not provided legal notice of the possible implementation” of additional sanctions “to be able to defend oneself in the substantiation of the administrative proceedings to determine responsibility, since it is impossible for the accused to know the extent of the damage and the severity of the crime when both have not yet been determined.” Thus, for the representatives “it is absolutely unsustainable” that "the procedures that led to the declaration of administrative responsibility and imposition of fines […] also represent the administrative proceedings for the sanction of disqualification,” as they had distinct purposes, cause, elements, and moreover, occurred much later. Thus, they questioned that the imposition of the additional sanction "does not require a different substantiation to that already previously issued by the Comptroller upon declaring the administrative responsibility."
- Meanwhile, the State indicated that “for the imposition of the sanction of disqualification,” “there is no need to carry out a different proceeding than that in which administrative responsibility is declared” because “the proceeding is one of its kind” and “is of a complex nature.” It added that the alleged victim “exhausted, in the administrative and judicial forums, his constitutional right to plead and prove all that was necessary against the aforementioned sanction.” Regarding the alleged lack of correspondence between the principle sanction and the additional sanctions, the State indicated that the imposition of the sanction "understood as a whole, is that it should be externalized or motivated from the relationship that exists between the unlawful act and the sanction to be imposed.”
- Considerations of the Court
- Of the arguments made by the parties, the Court considers it necessary to analyze: i) the alleged lack of notice of the possible imposition of disqualification; ii) the alleged need to expose independent arguments and evidence in order to ensure the right to defense, and iii) the Comptroller's duty to establish cause when imposing the disqualification.
Regarding the alleged lack of notice of the possible imposition of an additional sanction, the expert Cabrera Romero noted that it was not necessary to provide notice that, as a result of a declaration of administrative responsibility, a sanction of disqualification was to be imposed, as that is "a matter of law, because the legislation so provides in Article 105 [of LOCGRSNCF]." In this regard, the Court notes that Article 105 of the LOCGRSNCF is clear in pointing out the possibility that the Comptroller impose any of the additional sanctions - suspension, removal, and disqualification,- once the declaration is final of administrative responsibility of the public official, to which, in principle, the official that has been found responsible can foresee that any such sanction could be imposed. Thus, in an initial analysis, the specific notice of the situation in question does not seem necessary, provided that the person has had the procedural opportunity to present arguments and specific evidence related to the possible sanctions and that the administrative decision that has been imposed had proper cause.
- Now, in regard to the procedural opportunity to present arguments and specific evidence related to the possible sanctions, Article 105 of the LOCGRSNCF states that “the Comptroller shall [...] in an exclusive and excluding manner, without there being any other proceeding” impose additional sanctions. In this regard, the Constitutional Chamber of the Supreme Tribunal has noted that this implies that the imposition of sanctions shall be done as a result of a “complex proceeding” in the following terms:
"The tagline: ‘without there being any other proceeding,’ as in the previous laws, refers to the power to declare the administrative responsibility of an official through a process of a complex nature, given that the power to declare the administrative responsibility comes from the power to impose sanctions that result from such declaration. [Thus], the establishment of administrative responsibility does not require a new proceeding, as it entails establishing the sanction derived from administrative responsibility declared by the Comptroller General of the Republic, as stipulated in the previous proceeding established by the law. [...] Thus, it is the manifestation of two administrative acts of the same sanctioning power, making up what the doctrine calls "a complex process. [...] [T]he complex proceeding establishes the manifestation of the power to impose sanctions in two interrelated phases, in which the declaration of administrative responsibility is a necessary requirement for imposition of the sanction of suspension, removal, or disqualification; all processed in a single proceeding [...] because each of these phases are independently and effectively satisfied before bodies that, as a whole, form part of the National Fiscal Oversight System. [Thus,] the Chamber considers that [...] there is no violation to the constitutional right to due process, which necessarily must be met to establish the administrative responsibility. The sanctions that correspond to the designation of administrative responsibility do not merit a new proceeding because these are consequences of the declaration of administrative responsibility.”
- In this regard, the Court stresses that there is an important difference between the sanction of a fine and the additional sanction of disqualification, which, as noted, implies a limitation to stand for election (supra para. 108). Now, although the Court notes that Mr. López Mendoza did not have a procedural period between the declaration of responsibility and the imposition of the disqualification in any of the administrative proceedings that were carried out against him in which he could present arguments and specific evidence regarding the possible additional sanctions that could be imposed, the foregoing does not imply a violation of his right to defense by that fact alone, since Mr. López Mendoza had the opportunity to challenge the magnitude of the administrative failures or of the seriousness of the irregularities in subsequent appeals. Therefore, in the specific circumstances of this case, the Court considers that it was unnecessary for there to be an independent procedural stage, in which Mr. López Mendoza could have had the opportunity to present arguments or evidence to satisfy his right to defense against the possible imposition of additional sanctions.
- Concerning the requirement that there be cause established by the Comptroller, the Court reiterates that the cause is "the reasoned justification that permits a conclusion to be made.” The obligation to provide cause in the resolutions is a guarantee associated with the proper administration of justice, which protects the right of citizens to be tried for the reasons that the law provides, and grants credibility to the legal decisions within the framework of a democratic society. Therefore, decisions adopted by domestic bodies that could affect human rights should be properly grounded, otherwise they would be arbitrary decisions. In this sense, the argumentation of a ruling and of certain administrative actions should allow one to know what the facts, reasons and regulations are on which it bases the decision-making authority, to therefore rule out any hint of arbitrariness. Moreover, it must also show that it has duly taken into account the arguments of the parties and that the evidence has been analyzed. Therefore, the duty of cause is one of the "due guarantees" included in Article 8(1) to safeguard the right to due process.
- Venezuelan domestic law also recognizes the obligation to establish cause for administrative actions. In this regard, the Venezuelan Organic Law of Administrative Procedures (infra 201) states:
Article 9.- The administrative actions of a particular nature must be motivated, with the exception of those of simple processing or unless the law expressly provided for this exception. They must refer to the facts and legal basis for the action.
Article 12 .- Even when a legal or regulatory provision leaves a measure or action to the judgment of a competent authority, such measure or action shall maintain due proportionality and suitability with the alleged facts and the purposes of the regulation, and satisfy the processing measures, requirements, and formalities for its validity and effectiveness.”
- In this case, the Court noted that through Resolution No. 01-00-000206 (supra para. 58), the Comptroller outlined the following considerations to impose disqualification for three years on Mr. López Mendoza due to the facts related with the company PDVSA:
VII. REPARATIONS (APPLICATION OF ARTICLE 63(1) OF THE AMERICAN CONVENTION)
- On the basis of Article 63(1) of the American Convention, the Court has indicated that any violation of an international obligation that has caused damage triggers the duty to provide a proper reparation, and that this provision "reflects a customary law which is one of the fundamental principles of contemporary international law on State responsibility."
- In the present case, the State requested –in a general manner- that “the application filed by the Inter-American Commission be deemed unfounded […], as well as the requests for reparations and costs, contained therein.” Nevertheless, in consideration of the violations of the American Convention declared in the prior sections, the Court will analyze the pretensions presented by the Commission and the representatives, as well as the positions of the State ad cautela, in light of the standards established in the jurisprudence of the Court in relation to the nature and scope of the obligation to repair, in order to provide the measures necessary to repair the harm caused to the victim.
- The reparation of the damage caused by a violation of an international obligation requires, whenever possible, full restitution (restitutio in integrum), which consists in restoring the situation that existed before the violation occurred. When this is not possible, as in the majority of the cases, among them the present one, it is the task of the Tribunal to order the adoption of a series of measures that, besides guaranteeing respect for the rights violated, will ensure that the damage resulting from the infractions is repaired, as well as establish payment of an indemnity as compensation for the harm caused. Therefore, the Court has considered the need to provide for different remedies, in order to compensate the damages in a comprehensive manner, to which, in
addition to financial compensation, measures of restitution, satisfaction and guarantees of non-repetition are especially relevant for the damage caused.
- This Court has established that the reparations must have a causal connection with the facts of the case, the violations declared, the harm proven, as well as with the measures requested to repair the damage. Therefore, the Court must observe this in order to rule properly and pursuant to the law.
- Injured Party
- The Court reiterates that it considers an injured party, in the terms of Article 63(1) of the American Convention, a person declared a victim of the violation of the rights established therein. The victim in the present case is Mr. López Mendoza, to which he is the beneficiary of the reparations that the Court orders below.
- Measures of comprehensive reparation: restitution, satisfaction, and guarantees of non-repetition
- The Court will determine the measures that seek to repair the non-pecuniary damage and that are not pecuniary, and will order measures of a public scope and impact.
- International jurisprudence and in particular jurisprudence of the Court, has repeatedly held that the judgment is per se a form of reparation. However, considering the circumstances of the case sub judice, given the damage to Mr. López Mendoza and consequences of a pecuniary or non-pecuniary nature suffered as a result of violations of Articles 8, 23, and 25 of the American Convention, declared to the detriment of the victim, the Court considers it appropriate to establish the following measures.
- The Commission requested the Court to order the State “[t]o adopt the necessary measures to reestablish the political rights of Mr. Leopoldo López Mendoza.”
- For its part, the representative requested the “[f]ulll restitution in the exercise of the political rights of [Mr. López Mendoza] to be elected, according to Article 23 of the Convention […] in order for him to run as a candidate in elections held in the Bolivarian Republic of Venezuela.” In that sense, they requested that “the decisions for disqualification issued by the Comptroller be dismissed, [...] as well as those decisions made by the different branches of the National Public Power regarding the political-administrative disqualifications." In the same vein, they requested the Court to "require the State that the National Electoral Council allow the electoral registration and application of [Mr.] López [Mendoza] for any electoral process to be held in the Bolivarian Republic of Venezuela.”
- In this regard, the Court notes than in the public hearing in this case, Mr. López Mendoza said that "pursuant to [the] Comptroller General of the Republic" his political rights would be restored "in the year 2014." He added that in that sense, he had hoped to be "release[ed] from [the] restriction [on these] rights [and to] have the ability to freely participate in [the] elections in [his] country."
- The Court has noted that, given the specific circumstances in the present case, Articles 23(1)(b), 23(2), and 8(1) were violated, in relation to Articles 1(1) and 2 of the American Convention (supra 109, 149, 205, and 206). Accordingly, the Court finds that the State, through its competent bodies, particularly the National Electoral Council (CNE), must ensure that the sanction of disqualification is not an impediment to Mr. López Mendoza in the election in which he wishes to register as a candidate held after the rendering of this Judgment.
- Moreover, the Court also finds that the State must set aside Resolutions Nos. 01-00-000206 of August 24, 2005, and 01-00-000235 of September 26, 2005, issued by the Comptroller General of the Republic (supra 58 and 81), wherein the disqualification from public office was declared against Mr. López Mendoza for a period of 3 and 6 years, respectively.
- The Commission did not request the Court to order any measures of satisfaction from the State.
- The representatives requested that the State recognize its international responsibility in the present case.
221. The Court finds that the action requested by the representatives usually, though not exclusively, is ordered in order to redress the violation of the rights to life, integrity, and personal liberty, and in that sense, the Court considers that this measure is not necessary to remedy the violation found in this case.
- On the other hand, the Court finds, as it has in other cases, that the State must publish, within six months from the date of notification of this Judgment:
- the official summary of the present Judgment drafted by the Court, once, in the Official Gazette;
- the official summary of the present Judgment drafted by the Court, once, in a newspaper of wide national circulation, and
- the present Judgment in its entirety, available for a period of one year, on an official website.
- Guarantees of non-repetition
- The Commission requested the Court to order the State to “adjust its domestic legal code, in particular Article 105 of the [LOCGRSNCF] that imposes disqualification from running for a position of popular election, to the provisions of Article 23 of the American Convention.” Moreover, that it order “the strengthening of the guarantees of due process in the administrative proceedings of the Comptroller […] pursuant to the standards of Article 8 of the American Convention.”
- In the same sense, the representatives requested that “the State of Venezuela be required to suppress or modify Article 105 of the [LOCGRSNCF and to]immediately cease the imposition of political disqualifications by the Comptroller General of the Republic.”
- Given that the Court found violations of political rights and judicial guarantees (supra paras. 109 and 149), the Court considers that, as a guarantee of non-repetition, the State shall, within a reasonable time, adapt Article 105 of the LOCGRSNCF to that noted in paragraphs 199, 205, and 206 of this Judgment.
- Notwithstanding the foregoing, as set forth in its prior jurisprudence, the Court recalls that it is aware that the domestic authorities are subject to the rule of law and, therefore, are obligated to apply the existing provisions in the legal system. But, when a State is a Party to an international treaty such as the American Convention, all its bodies, including the judges and other bodies related to the administration of justice, are also subject to it, which obligates them to ensure that the effects of the provisions of the Convention are not affected by the application of regulations that are contrary to its object and purpose. Judges and bodies related to the administration of justice at all levels are obligated ex officio to exercise "control of conformity with the Convention" between the domestic rules and the American Convention, within the framework of their powers and the corresponding procedural regulations. In this task, judges and bodies related to the administration of justice must take into account not only the treaty, but also the interpretation thereof made by the Inter-American Court, the ultimate interpreter of the American Convention.
- For example, the courts of the highest hierarchical level in the region, such as the Constitutional Chamber of the Supreme Court of Costa Rica, The Constitutional Tribunal of Bolivia, the Supreme Court of the Dominican Republic, the Constitutional Tribunal of Peru, the Supreme Court of Justice of the Nation of Argentina, and the Constitutional Court of Colombia, have referred to and applied the control of conformity with the Convention considering interpretations made by the Inter-American Court.
- In conclusion, regardless of the legal reforms that the State must adopt (supra para. 225), based on the control of conformity with the Convention, it is necessary for the judicial and administrative interpretations and judicial guarantees be applied, adapting themselves to the principles established in the jurisprudence of this Court that have been reiterated in this case.
- Other measures of reparation requested
- The representatives “request[ed] that a general [m]easure of reparation and non-repetition be agreed upon, in order to safeguard and protect the large number of Venezuelans who are in the same factual and legal situation [approximately 575 people], in order for the restoration of their political rights and the State undertake to not tolerate, accept, and adopt new tools to prosecute and limit these rights.”
- Regarding this request, the Court finds that the issuance of this Judgment and the reparations ordered in this chapter are sufficient and appropriate to remedy the violations suffered by the Victim. Moreover, the court held that the alleged context of persecution and impediments to the members of political parties of the opposition in Venezuela through the application of administrative sanctions such as disqualification from public office posed by the representatives was not included by the Commission in its application.
- Compensatory damages for pecuniary and non-pecuniary damage
- The Court has developed in its jurisprudence the concepts of pecuniary and non-pecuniary damages and the reasons for compensation.
- The Commission "consider[ed] it relevant to redress the consequences of the violations committed against the victim by providing compensation for the [material and moral] damage caused in the case."
- The representatives did not request the Court to order the State to pay a specific amount for pecuniary and non-pecuniary damage.
- The Court notes that there is no evidence on the pecuniary damage suffered by Mr. López Mendoza and that the only evidence regarding moral damage in the case file is related to the declaration of the victim in the public hearing. Mr. López Mendoza noted that “he cannot carry out any public function before the Venezuelan State, at the local, regional, and national level [and that] he was totally excluded from participating as a public servant [and] from excercising [his] political rights and to run as a candidate in a popular election.” He added that “his political career is [his] life [and that] being disqualified as a politician, as a public servant, is like taking wood away from a carpenter […] or taking the possibility away from those who dedicate themselves to justice […] from evaluating a case.” According to Mr. López Mendoza, “a political disqualification [implies] removing him completely from [his] profession, [his] vocation, of working with people, of working with citizens, of building hope through the possibility granted to people through their votes.” Finally, he specified that “as of 2008, […] he has not been able to serve as a public servant within the structure of the Venezuelan State [and that, nevertheless, he] has remained […] with the community, […] organizing the hope of a people who want an option for change.”
- Considering that international jurisprudence has consistently reiterated that the Judgment may be per se a form of reparation (infra **) and, taking into account that in the circumstances of the case sub judice the Court has no other additional element to assess in addition to the declaration of the victim and the victim's representatives did not make a specific request for pecuniary and non-pecuniary damage, the Court does not deem a measure of pecuniary in this regard.
- Costs and expenses
- Method of compliance with the reimbursement of costs and expenses
- The State must pay the reimbursement of costs and expenses directly to the victim, within one year of legal notice of this Judgment, under the terms of the following paragraphs.
- The State must comply with its obligations by payment in dollars of the United States of America or the equivalent amount in Venezuelan money, using the exchange rate in force in the New York exchange, United States of America, the day before the payment to make the respective calculation.
- If, for reasons that can be attributed to the beneficiary of the reimbursement, it is not possible to pay the amounts established within the time indicated, the State shall deposit the amount in his favor in an account or a deposit certificate in a solvent Venezuelan financial institute in dollars of the United States of America and in the most favorable financial conditions permitted by law and banking practice. If, after 10 years, the reimbursement has not been claimed, the amounts shall revert to the State with the accrued interest.
- The amounts allocated in this Judgment as reimbursement of costs and expenses must be delivered to the persons indicated in an integral manner, as established in this Judgment, without any deduction arising from possible taxes or charges.
- If the State should fall into arrears, it shall pay interest on the amount owed, corresponding to the banking interest on arrears in Venezuela.
VIII. OPERATIVE PARAGRAPHS
- Therefore, THE COURT DECLARES:
- The State is responsible for the violation of the right to be elected, established in Articles 23(1)(b) and 23(2), in relation to the obligation to respect and guarantee rights set forth in Article 1(1) of the American Convention on Human Rights, to the detriment of Mr. López Mendoza, in terms of paragraph 109 of this Judgment.
- The State is responsible for the violation of obligation to establish cause and the right to defense in the administrative proceedings that resulted in the imposition of sanctions of disqualification, established in Article 8(1), in relation to the obligation to respect and guarantee rights, established in Article 1(1) of the American Convention on Human Rights, to the detriment of Mr. López Mendoza, in terms of paragraph 149 of this Judgment.
- The State is responsible for the violation of the right to judicial protection established in Article 25(1), in relation to the obligation to respect and guarantee rights, the right to a fair trial [judicial guarantees], and the right to be elected as set out in Articles 1(1) , 8(1), 23(1)(b), and 23(2) of the American Convention on Human Rights, to the detriment of Mr. López Mendoza, in terms of paragraph 185 of this Judgment.
- The State has breached its obligation to adapt its domestic law to the American Convention on Human Rights, established in Article 2, in relation to the obligation to respect and guarantee rights, the right to a fair trial [judicial guarantees], and the right to be elected, established in Articles 1(1), 8(1), 23(1)(b), and 23(2) thereof, pursuant to paragraph 206 of this Judgment.
- The State did not violate the right to defense and the right to appeal a ruling in the administrative proceedings that ended in the determination of responsibility and fines, recognized in Article 8(1), in relation to the obligation to respect and guarantee rights set forth in Article 1(1) of the American Convention on Human Rights, to the detriment of Mr. López Mendoza, in terms of paragraph 123 of this Judgment.
- The State did not violate the reasonable period of time in the resolution of Judicial appeal for annulment of the administrative decision of the State filed against the declarations of responsibility and fines, the and appeal of unconstitutionality against Article 105 of the Organic Law of the Comptroller General of the Republic and the National System of Fiscal Oversight, recognized in Article 8(1), in relation to the obligation to respect and guarantee rights set forth in Article 1(1) of the American Convention on Human Rights against Mr. López Mendoza, in terms of paragraphs 169 and 180 of this Judgment.
- The State did not violate the presumption of innocence in the proceedings that led to the determination of responsibility and fines, recognized in Article 8(1), in relation to the obligation to respect and guarantee rights set forth in Article 1(1) of the American Convention on Human Rights, to the detriment of Mr. López Mendoza, in terms of paragraph 132 of this Judgment.
- The State did not violate the right to equality before the law, established in Article 24, in relation to the obligation to respect and guarantee rights, established in Article 1(1) of the American Convention on Human Rights, to the detriment of Mr. López Mendoza, pursuant to that established in paragraph 195 of this Judgment.
AND DECIDES: Unanimously, that:
- This Judgment constitutes per se a form of reparation.
- The State, by way of its competent bodies, and specifically the National Electoral Council, (CNE), must assure that the sanctions for disqualification do not prevent Mr. López Mendoza from running as a candidate if he so chooses in elections that are to be held after the issuance of this Judgment, pursuant to that established in paragraph 217 of this ruling.
3 The State must set aside Resolutions 01-00-000206 of August 24, 2005, and 01-00-000235 of September 26, 2005, issued by the Comptroller General of the Republic, pursuant to that established in paragraph 218 of this Judgment
- The State must carry out, in a period of six months as of legal notice of this Judgment, the publications provided for in paragraph 222 of this ruling.
- The State must, within a reasonable period, adapt Article 105 of the Organic Law of the Comptroller General of the Republic and the National System of Fiscal Oversight, pursuant to that established in paragraph 225 of this Judgment.
- The State must pay, within a period of one year as of legal notice of this Judgment, the amounts established in paragraph 243, for compensation of costs and expenses, in conformity with paragraphs 244 to 248 of this Judgment.
- The State must provide, within a period of one year as of legal notice of this Judgment, a brief regarding the measures adopted to satisfy compliance.
- Pursuant to its attributes and in compliance with that established in the American Convention, the Court will monitor the full compliance with this Judgment and will conclude the case once the State has entirely satisfied said provisions.
Judges Diego García-Sayán and Eduardo Vio Grossi made their Concurring Opinions known to the Court, those of which accompany this Judgment.
Written in Spanish and in English, the Spanish text being authentic, in Bogota, Colombia on September 1, 2011.