126. The Inter-American Court has referred to, or used, the mechanism of the “abuse of
power” very infrequently, and in a limited way. In fact, in Advisory Opinion OC-6/86, it
established172
18.
In reading Article 30 in conjunction with other articles in which the Convention authorizes the
application of limitations or restrictions to specific rights or freedoms, it is evident that the following
conditions must be concurrently met if such limitations or restrictions are to be implemented:
a)
That the restriction in question be expressly authorized by the Convention and meet the
special conditions for such authorization;
b ) That the ends for which the restriction has been established be legitimate, that is, that they
pursue “reasons of general interest” and do not stray from the “purpose for which (they) have
been established.” This teleological criterion, the analysis of which has not been requested here,
establishes control for abuse of power, and
c ) That such restrictions be established by laws and applied pursuant to them. (Underlining
added)
127.
In addition, in Advisory Opinion OC-8/87, it was considered:173
39.
The Court should also point out that since it is improper to suspend guarantees without
complying with the conditions referred to in the preceding paragraph, it follows that the specific
measures applicable to the rights or freedoms that have been suspended may also not violate these
general principles. Such violation would occur, for example, if the measures taken infringed the legal
regime of the state of emergency, if they lasted longer than the time limit specified, if they were
manifestly irrational, unnecessary or disproportionate, or if, in adopting them, there was a misuse or
abuse of power (underlining added).
128. In the case of Apitz Barbera et al. v. Venezuela, the ICourtHR alluded to this concept
when stating that:174
In sum, although in this case it has not been proved that the CFRSJ acted with abuse of power,
directly pressured by the Executive to dismiss the victims, the Court concludes that, owing to the
removal at will of the members of the CFRSJ, the due guarantee did not exist to ensure that the
pressure brought to bear on the First Court did not influence the decisions of the disciplinary organ
(underlining added).
E) Regarding the use of this mechanisms and the case law of the European Court of Human
Rights
129. Taking into account the conceptualization of the abuse of power, it is clear that in
order to determine whether this has been constituted in a specific case, it is necessary to
analyze the real purpose behind the act. Regarding this aspect, in paragraph 210 of the
Judgment, the ICourtHR indicated that:
Thus, in the instant case, the Court finds it necessary to examine the context in which the facts
surrounding the removal of the judges from office occurred, because this will be useful to understand
the reasons or grounds on which this decision was made. This is because the reason or purpose of a
specific decision of the State authorities is relevant for the legal analysis of a case, since a purpose or
reason that differs from the norm that grants the State authority the power to act, may reveal
Advisory Opinion OC-6/86, of May 9, 1986 (The Word “Laws” in Article 30 of the American Convention on
Human Rights), requested by the Government of the Oriental Republic of Uruguay, para. 18.
172
Advisory Opinion OC-8/87, of January 30, 1987 (Habeas Corpus in Emergency Situations (Arts. 27.2,
25(1) and 7.6 American Convention on Human Rights), requested by the Inter-American Commission on Human
Rights, para. 39.
173
Case of Apitz Barbera et al. (“First Contentious Administrative Court”) v. Venezuela. Preliminary
objection, merits, reparations and costs. Judgment of August 5, 2008. Series C No. 182, para. 147.
174
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