Report No. 149 (2021) IACHR. Petition No. 1699-13 (El Salvador)

Year2021
Case TypeAdmissibility
Respondent StateEl Salvador
CourtInter-American Comission of Human Rights
R. No. 149/21
















REPORT No. 149/21

PETITION 1699-13

REPORT ON ADMISSIBILITY


JOSÉ SALOMÓN PADILLA

EL SALVADOR

OEA/Ser.L/V/II

Doc. 157

8 July 2021

Original: Spanish



























Approved electronically by the Commission on July 8, 2021.






Cite as: IACHR, R. No. 149/21, Petition 1699-13. A.. J.S.P..
El Salvador. July 8, 2021.





www.iachr.org


I. INFORMATION ABOUT THE PETITION

Petitioners:

Orestes David Ortez Quintanar, E.A.T.Á., Julio Alberto López Pérez, and José Salomón P.

Alleged victim:

José Salomón P.

Respondent S.:

El Salvador

Rights invoked:

Articles 5 (right to humane treatment), 8 (right to a fair trial), 11 (right to privacy), 13 (freedom of thought and expression), 16 (freedom of association), 23 (right to participate in government), and 25 (right to judicial protection) of the American Convention on Human Rights,1 in connection with Article 1.1 (obligation to respect rights) thereof

II. PROCEEDINGS BEFORE THE IACHR2

Filing of the petition:

October 14, 2013

Additional information received
at the stage of initial review:

October 24, 2013; December 21, 2016, and M. 20, 2017

N. of the petition
to the S.:

September 5, 2017

S.’s first response:

J. 10, 2018

Additional observations
from the petitioner:

J. 11, 2018

III. COMPETENCE

Competence Ratione personae:

Y.

Competence Ratione loci:

Y.

Competence Ratione temporis:

Y.

Competence Ratione materiae:

Y. American Convention (instrument of ratification deposited on J. 23, 1978)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures
and international
res judicata:

No

Rights declared admissible

Articles 8 (right to a fair trial), 13 (freedom of thought and expression), 23 (right to participate in government), and 25 (right to judicial protection) of the American Convention, in connection with Articles 1.1 (obligation to respect rights) and 2 (domestic legal effects) thereof

E. or exception
to the exhaustion of remedies:

Y., according to Section VI

Timeliness of the petition:

Y., according to Section VI




V. FACTS ALLEGED

  1. The petitioners allege the international responsibility of El Salvador for the violation of the rights of Mr. José Salomón P. given the judgment of unconstitutionality issued over the Salvadoran Legislative Assembly’s decree of August 21, 2012, by which Mr. P. had been elected justice of the Supreme Court of Justice. The petitioners allege, principally, that the Salvadoran legal framework does not explicitly prohibit justices of the Supreme Court of Justice from becoming members of a political party and that M.P. could not access an effective remedy to have this decision reviewed by an impartial and autonomous tribunal.

  2. The petitioners recount that by Legislative Decree 1070 of April 24, 2012, the Salvadoran Legislative Assembly elected Mr. P. justice of the Supreme Court of Justice for the term July 1, 2012 - J. 30, 2021. N., they report that on May 4, 2012, a claim was filed alleging the unconstitutional nature of this decision in that the Legislative Assembly had infringed the principle of indirect legitimacy of justices of the Supreme Court of Justice. This claim gave rise to constitutional proceedings No. 19-2012, in which the C.itutional Chamber found Legislative Decree 1070 unconstitutional on J.5., 2012, following which the decree was nullified and M.P. lost his office.

  3. The petitioners hold that due to judgment of unconstitutionality No. 19-2012, the Legislative Assembly of El Salvador filed a complaint with the Central American Court of Justice (hereinafter CCJ), which in its ruling of August 15, 2012, found judgment of unconstitutionality No. 19-2012 inapplicable. H., the C.itutional Chamber declared the CCJ’s ruling inapplicable. The petitioners claim that owing to the conflicting judgments issued by the C.itutional Chamber and the CCJ, the Legislative Assembly and the president of the Republic of El Salvador mediated and agreed to call another election of justices of the Supreme Court of Justice.

  4. T., by Legislative Decree 101 of August 21, 2012, the Legislative Assembly for the second time elected Mr. P. justice of the Supreme Court of Justice for the term ending on J. 30, 2021. He was also elected president of the C.itutional Chamber of the Supreme Court of Justice for the term that finished on July 15, 2015. The petitioners explain that Mr. P. took office on August 22, 2012, yet on May 13 and J. 18, 2013, two claims alleging unconstitutionality were filed against Legislative Decree 101. These were submitted by Salvadoran citizens who claimed that Mr. P.’s election was unconstitutional on account that (a) the Legislative Assembly did not justify or demonstrate any outstanding qualifications of the justices elect, including M.P., and (b) it purportedly affected the independence of the judges regarding political parties, as M.P. was affiliated to a political party and had stated his political preference in public. The petitioners hold that the allegation of Mr. P.’s affiliation to a political party was based on news, television interviews, and newspaper articles only and not documentary evidence.

  5. The above claims of unconstitutionality were admitted and joined by the C.itutional Chamber on July 24, 2013, giving rise to constitutional proceedings No. 77-2013/97-2013. The petitioners allege that Mr. P. was cited to appear in court to answer the accusations on the claims. N., they allege that before the justices of the C.itutional Chamber conducted a legal examination of the claims of unconstitutionality, their resolution was preordained, as this involved political parties, meaning by this that the judgment of unconstitutionality was imminent.

  6. T., by its judgment of October 14, 2013, the C.itutional Chamber of the Supreme Court of Justice adjudicated claims of unconstitutionality Nos. 77-2013/97-2013 by ruling that Mr. P.’s second appointment as justice-president of the Supreme Court of Justice, the C.itutional Chamber, and the Judicial Branch was unconstitutional and that, accordingly, the Legislative Assembly had infringed the principle of judicial independence regarding political parties since Mr. P. was affiliated to F.M.N.L.F.. That judgment stated as follows regarding the incompatibility between being affiliation to a political party and the office of justice of the Supreme Court of Justice:

Bearing in mind that provision, it follows that, based on a literal interpretation (in the manner that the Legislative Assembly, the A. General, and lawyer J.S.P. understand it), Art. 176 of the C.. “does not [explicitly] prohibit” persons eventually elected Justices of the SCJ (who exercise ultimate constitutionality and legality control) from being members of a political party; but in the case of candidates to the office of Justice of the Supreme Electoral Tribunal [TSE], specifically those chosen from the shortlist submitted by the SCJ, such incompatibility does exist.



Accepting such an interpretation would lead to a ridiculous conclusion: Justices of the SCJ can be members of a political party (in full, including members’ duties to the political party concerned), but two of the Justices of the TSE (those elected from the shortlist made by the SCJ itself) may not be so.



If the raison d’être of Art. 208 subpar. 1 of the C.. is to protect the independence and promote the impartiality of two of the Justices of the TSE elected from among those shortlisted by the SCJ—which is why they are not allowed to be members of a political party—, all the more so the interpretation according to which Justices of the SCJ in general are allowed such membership since Art. 176 of the C.. does not prohibit this, is unacceptable; above all, because Art. 208 subpar. 5 of the C.. enables that proceedings by the TSE are subject to constitutionality controls through “remedies established by [the] C.itution,” which are the responsibility of this Chamber (whose president is lawyer José Salomón P.).



  1. The petitioners claim that the judgments of unconstitutionality by the C.itutional Chamber are final and cannot be appealed, accordingly. H., they say that in November 2013, Mr. P. reported these facts to the Office of the A. for Human Rights of El Salvador (PDDH). On August 28, 2015, the PDDH issued a resolution stating that Mr. P.’s constitutional right to holding public office had been infringed.

  2. The petitioners allege mainly that the judgment of unconstitutionality of October 14, 2013, by the C.itutional Chamber of the Supreme Court of Justice infringed Mr. P.’s judicial guarantees, his right to having one’s honor and privacy respected, his freedom of association, and his political rights, because the judgment of unconstitutionality in proceedings No. 77-2013/97-2013 appears to have been based only on the fact that M.P. was a member of a political party—not to mention the fact that, in El Salvador, there is no law that explicitly prohibits justices of the Supreme Court of Justice from being members of a political party and that his alleged affiliation was not proved with documentary evidence but determined on the basis of Mr. P.’s statements in television interviews and newspaper articles. A., the petitioners allege that while in office, Mr. P.’s performance was always impartial and that he could not access an effective remedy to...

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