Report No. 40 (2019) IACHR. Petition No. 928-08 (República Dominicana)

• Petition Number: 928-08
• Report Number: 40
• Respondent State: República Dominicana
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Esther Verónica Fermin Lora

REPORT No. 40/19

PETITION 928-08

REPORT ON ADMISSIBILITY

ESTHER VERÓNICA FERMIN LORA

DOMINICAN REPUBLIC

OEA/Ser.L/V/II.

D.. 45

18 A. 2019

Original: Spanish

Approved electronically by the Commission on A. 18, 2019.

Cite as: IACHR, R. No. 40/19, Petition 928-08. A.. Esther Verόnica F.L.. Dominican Republic. A. 18, 2019.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Esther Verόnica F.L.
:	Esther Verόnica F.L.
Respondent State:	Dominican Republic
Rights invoked:	Articles 3 (right to juridical personality), 8 (right to a fair trial) and 25 (right to judicial protection) of the American Convention on Human Rights;1 and another international treaty2

II. PROCEEDINGS BEFORE THE IACHR³

Filing of the petition:	J. 30, 2008
Additional information received at the stage of initial review:	J. 19, 2014
N. of the petition to the State:	A. 8, 2014
State’s first response:	J. 26, 2014
Additional observations from the petitioner:	February 21, 2016

III. COMPETENCE

Competence Ratione personae:	Yes
Competence Ratione loci:	Yes
Competence Ratione temporis:	Yes
Competence Ratione materiae:	Yes, American Convention (deposit of instrument of ratification made on A. 19, 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	8 (right to a fair trial), 23 (right to participate in Government), 25 (right to judicial protection) and 26 (progressive development) of the Convention
Exhaustion of domestic remedies or applicability of an exception to the rule:	Yes
Timeliness of the petition:	Yes

V. FACTS ALLEGED

1. As petitioner and alleged victim, the petitioner alleges the violation of her rights, in the context of disciplinary proceedings where she was dismissed from her position. She points out that she learned of the proceedings on May 8, 2007, when she was summoned to appear at a hearing by the Plenary of the Supreme Court of Justice (hereinafter "Supreme Court") on May 22, 2007. Its purpose was to acquaint her with the disciplinary case against her for alleged serious misconduct committed in the exercise of her functions as a judge. In that sense, she was accused of failing to sign and provide reasoning for her judgments, failing to submit a management report, of ignoring the orders of her hierarchical superiors and of retaining files in her possession, thereby both obstructing the proper administration of justice to the detriment of the public, and bringing the image of the J. into disrepute.⁴

2. The petitioner argues that the charges against her were modified during the course of the proceedings, without giving her sufficient time to prepare her defense. She indicates that on November 7, 2007, the Supreme Court issued a judgment imposing disciplinary sanctions on her. The alleged victim appealed against this decision on November 23 following. She adds that the same Supreme Court dismissed her appeal on January 10, 2008, (decision served on January 30, 2008), on the grounds that the alleged victim had had the right to a defense and that she had been granted the means to defend herself (without specific reference thereto).

3. The petitioner argues that her rights to judicial guarantees and protection were violated inasmuch as: the court that had taken the decision against her, the Supreme Court of Justice, had been the same court initiating the investigation, violating the principle of impartiality; the court accusing and trying her changed the charges in the list of accusations, without giving her the opportunity to prepare; the court accusing and trying her failed to provide reasoned grounds for its decision, violating her right of defense; and the court violated the right of non self-incrimination, as her statements were used against her.

4. The State argues that domestic remedies were not exhausted and confirms that the disciplinary proceedings were carried out in accordance with the law then in force, respecting due process, effective judicial protection and the rights of the defense. The hearing on the merits of the accusations was stayed more than 3 times and for various reasons: for her to become acquainted with the evidence produced by the public prosecutor, for the submission of the brief justifying her conclusions, to summon witnesses and for the appearance of the defense counsel.

VI. ANALYSIS OF EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

5. The State points out that the alleged victim has not exhausted domestic remedies by failing to avail herself of the following remedies in the Dominican legal system: 1) the contentious administrative remedy as an action seeking the annulment of measures adopted by the authorities in violation of the legal order and, precautionary measures as an effective mechanism to ensure judicial protection vis-a-vis judicial delay, ensuring the grant of a provisional measure until the contentious administrative remedy is decided; and 2) An amparo motion as an autonomous action, enshrined in law, and independent of the exhaustion of other avenues or formalities as an effective remedy to protect fundamental rights under threat. The alleged victim claims that she exhausted the only remedy available to her in domestic law.

6. In this regard, the IACHR notes that the Supreme Court’s decision of November 7, 2007, was appealed to the Supreme Court on November 23 of that year. By decision of January 10, 2008, and served on January 30, the Supreme Court upheld the previous decision. The Inter-American Commission has maintained that "if the alleged victim endeavored to resolve the matter by making use of a valid, adequate alternative available in the domestic system and the State had an opportunity to remedy the issue within its jurisdiction, the purpose of the international legal precept is fulfilled."⁵ F., the IACHR understands that, due to the level of functions exercised by the alleged victim as an appeal judge, she only had the Supreme Court as the superior and final instance, and that, according to the provisions on dismissals in the statute on judicial service, there was no other superior body that could assess her case or review decisions of the Supreme Court of Justice.

7. The Commission considers that the petition fulfills the requirements of Article 46.1 (a) of the American Convention. In addition, since the petition was received on J. 30, 2008, and the petitioner pointed out that the decision of January 10, 2008, was served on January 30, the Commission considers that the petition fulfills the requirements of Article 46.1. (b) of the Convention and is, therefore, admissible.

VII. ANALYSIS OF COLORABLE CLAIM

8. The Commission considers that if the facts alleged by the petitioner prove to be true, they could characterize violations of Articles 8 (right to a fair trial), 23 (right to...