Report No. 60 (2014) IACHR. Petition No. 1415-04 (Paraguay)

CourtInter-American Comission of Human Rights
Case TypeAdmissibility
Respondent StateParaguay
Petition Number1415-04
Alleged VictimAlejandro Nissen Pessolani
Report Number60















REPORT No. 60/14

PETITION 1415-04

REPORT ON ADMISSIBILITY



ALEJANDRO NISSEN PESSOLANI

PARAGUAY

OEA/Ser.L/V/II.151

Doc. 25

24 July 2014

Original: Spanish



























Approved by the Commission at its session No. 1994 held on July 24, 2014
151 Regular Period of Sessions







Cite as: IACHR, Report No. 60/14, Petition 1415-04. Admissibility. Alejandro Nissen Pessolani. Paraguay. July 24, 2014.





www.cidh.org


REPORT No. 60/14

PETITION 1415-04

ADMISSIBLITY

ALEJANDRO NISSEN PESSOLANI

PARAGUAY

July 24, 2014



I.SUMMARY


  1. On December 27, 2004, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) received—by post—a petition dated December 16 2004, lodged by Alejandro Nissen Pessolani (hereinafter “the petitioner” or “the alleged victim”) claiming that the Republic of Paraguay (hereinafter “the State” or “Paraguay”) bore international responsibility with regard to two proceedings against the petitioner before the Jury of Judgment of Magistrates (hereinafter “JEM”), allegedly in violation of the rights to a fair trial and judicial protection, brought for the purpose of removing him from his post as a Criminal Prosecutor.


  1. The petitioner alleges possible violation of the rights to judicial independence, compensation, and judicial protection, enshrined in Articles 8, 10, and 25 of the American Convention on Human Rights (hereinafter “the American Convention”), as well as of the obligation to respect and ensure the rights envisaged in Article 1.1 thereof. The State claims, on the one hand, that the judicial process respected the rights to a fair trial and judicial protection and that the IACHR cannot be used as a final judicial instance and, on the other hand, that there was a failure to exhaust domestic remedies with respect to the alleged compensation.


  1. After examining the positions of the parties and compliance with the requirements established in Articles 46 and 47 of the American Convention, the Commission decided to declare the petition admissible for purposes of examining the alleged violation of Articles 2, 8, 9, and 25 of the American Convention, in relation to Article 1.1 thereof, and inadmissible with regard to Article 10. Likewise, it decided to notify the parties of this decision and to publish and include it in its Annual Report to the OAS General Assembly.


II.PROCESSING BY THE COMMISSION


  1. The petition was registered as number 1415-04. On May 31, 2006, the pertinent parts thereof were transmitted to the State for its observations. The petitioner presented his observations on November 6, 2006; March 27, April 19, June 5, July 31, September 10 and 20, and November 1, 2007; March 26, April 8, November 25, and December 8, 2008; September 30, 2009; and July 23, 2010, and these were forwarded to the State.


  1. The State submitted its observations on September 19, October 12, and November 30, 2006; July 9, November 15, and December 27, 2007; and January 15, 2008, and these were forwarded to the petitioner. In this last note, the State requested a hearing, which the IACHR did not grant. Likewise, the State presented its observations on March 11, 2009, which were transmitted to the petitioner.


  1. On August 5 and 31, 2010, the petitioner expressed an interest in seeking a friendly settlement. On August 5, 2011, a working meeting was held between the parties with respect to the possible friendly settlement, through the good offices of the IACHR.


  1. The petitioner submitted its observations on August 8, 2011, which were transmitted to the State. On August 29, 2011, the State indicated that it could not reach an interagency agreement on the friendly settlement and it therefore asked the IACHR to continue moving forward with the petition.


  1. The petitioner submitted his observations on September 22, 2011; February 6, April 3, June 25, and May 28, 2012; and January 28, 2014, which were forwarded to the State. It bears mentioning that the petitioner has transmitted notes each time requesting prompt attention to his petition.


III.POSITIONS OF THE PARTIES
A. Position of the petitioner


  1. The petitioner states that in 2001, in his capacity as Prosecutor for Criminal Unit No. 10, he began to investigate a series of acts of corruption in both the public and private sectors, trafficking in stolen vehicles, organized crime, criminal association, contraband, tax evasion, and money laundering in respect of the political sector and entrepreneurs with influence in the government. He indicates that among those being investigated were the son of a former President of the Republic and Cristian Paolo Ortiz, also known as “Planta Ortiz,” as well as the Dures, a married couple. He alleges that “in order to remove him from the Public Prosecutor’s Office, which was investigating them,” two proceedings were instituted against him before the JEM, the body responsible for prosecuting and removing persons who work as prosecutors in the Public Prosecutor’s Office.


  1. He argues that the individuals he was investigating had asked the Office of the Prosecutor General of the State (hereinafter “FGE”) as early as April 2001 to strip him of his prosecutor’s post. He states that the FGE had warned him that he should be careful and “that he should not break the rules of the game,” that it would let him know when a case was to be opened against him, “that a door was opening for them to destroy [him] and that they could take [him] to the Jury.” He assumes that given the inability of the FGE to prevent those investigations, which were not handled by the Office of the Prosecutor General of the State, from being conducted, the first formal complaint had to be brought against him, as provided for in Laws 1.084 and 1.752, which govern proceedings before the JEM.


  1. He points out that, on March 12, 2002, Cristian Paolo Ortiz lodged that first complaint against him, for poor performance of his duties. He alleges that the complaint did not meet the requirements under law since the complainant had provided as proof of his economic solvency a property that had been seized by order of the court in the investigation against him, which means that the necessary bond had not been posted. He states that he complained to the JEM that Mr. Ortiz’s complaint “was simply intended to remove him from that case and from [his] prosecutor’s post so that emphasis would no longer be placed on investigations of that type,” but the JEM decided to initiate its processing of the complaint, on May 22, 2002.


  1. He claims that said proceeding violated Article 8 of the American Convention. In this connection, he maintains that even before the investigation against him was launched, the President of the JEM, without the vote of the other members of the Jury, first requested and then called on the petitioners to turn over the file of the investigation on the supposedly illegal origin of the automobile owned by the Office of the President of the Republic. He contends that he challenged the President and the other members of the JEM, but since it is the JEM itself that rules on the challenge, it was rejected. He claims that he was also suspended from his functions by the President of the JEM, who, along with other JEM magistrates, was also being investigated by the petitioner for crimes of corruption.


  1. He alleges that had access to the draft of a final judgment against him that...

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