40
appointment process51, a fixed term in the position52 and a guarantee against
external pressures53.
76.
In this respect, Articles 93 and 201 of Peru’s current Constitution (supra
42)(C)(b) and, particularly, Article 13 of the Constitutional Court’s statute, establish
that the members of this Court “are not subject to mandatory injunctions, nor do
they receive instructions from any authority. They enjoy inviolability. They do not
have to respond for votes or opinions issued in the exercise of their responsibilities.
They also enjoy immunity.”
77.
Regarding the exercise of the authority of Congress to conduct impeachment
proceedings, which engages the responsibility of a public official, the Court believes
that it should be recalled that any person subject to a proceeding of any nature
before an organ of the State must be guaranteed that this organ is competent,
independent and impartial and that it acts in accordance with the procedure
established by law for hearing and deciding the case submitted to it.
78.
In the instant case, it has been proved that during the dismissal procedure
conducted by the Congress of Peru the following situations, among others, occurred:
a) 40 members of Congress sent a letter to the Constitutional Court requesting it to
make a pronouncement on whether Law No. 26,657 on presidential re-election, was
unconstitutional; b) some of the members of Congress who sent this letter then took
part in the various committees and sub-committees that were appointed in the
proceeding we are examining; c) the “second judgment” delivered by Justices García
Marcelo and Acosta Sánchez, on January 16, 1997, was not examined, although it
was published irregularly as a separate pronouncement issued by the Court: and d)
despite the express prohibition established in Article 88 j) of the rules of procedure
of Congress, some members of the Permanent Commission participated in the vote
on the constitutional dismissal. Consequently, this Court concludes that, during the
impeachment proceeding, Congress did not ensure the dismissed justices the
guarantee of impartiality required by Article 8(1) of the American Convention.
79.
The Peruvian Constitution establishes the general right to defense in its
Article 2(23) and, specifically, in the case of the dismissal of a justice, its Article
100(2) indicates that “the accused has the right, during this process, to defend
himself with the assistance of a lawyer before the Permanent Commission and
before the full Congress.”
80.
As has been shown, the following actions occurred in the procedure to
dismiss the alleged victims: a) the Investigation Committee was appointed by the
full Congress to clarify Delia Revoredo Marsano’s complaint concerning a possible
removal of documents belonging both to her and to the Court, which was taking
place within the Court, and about threats that she had experienced. The Committee
was given the express mandate that it could not examine any matter related to the
51
Cf. Eur. Court H.R., Langborger case, decision of 27 January 1989, Series A no. 155, para. 32;
and Eur. Court H.R., Campbell and Fell, supra note 47, para. 78.
52
Cf. Eur. Court H.R., Langborger case, supra note 51, para. 32; Eur. Court H.R., Campbell and
Fell, supra note 47, para. 78; and Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23
June 198I, Series A no. 43, para. 55.
53
Cf. Eur. Court H.R., Langborger case, supra note 51, para. 32; Eur. Court H.R., Campbell and
Fell, supra note 47, para. 78; and Eur. Court H.R., Piersack judgment of 1 October 1982, Series A no. 53,
para. 27.