The guarantee of a natural and impartial judge belongs to both procedural public order and constitutional public order, and therefore has no expiration, as it constitutes a fundamental human right enshrined in Article 23 of the National Constitution.
The guarantee of being judged by a natural, independent, and impartial judge constitutes a principle of procedural public order that admits neither prescription nor expiration. Such prerogative stands as one of the structural foundations of Venezuelan criminal due process, enshrined in Articles 26 and 49 of the Constitution of the Bolivarian Republic of Venezuela, as well as in Article 8 of the American Convention on Human Rights and Article 14 of the International Covenant on Civil and Political Rights. Its public-order nature implies that it cannot be waived, negotiated, or validated by the parties, as it is directly connected to the jurisdictional function of the State and to the legitimacy of the exercise of judicial power.
When a judge loses impartiality, the process ceases to be an instrument of justice and becomes an arbitrary act tainted with absolute nullity from its origin. Consequently, any action issued by a judge who has expressed an opinion or demonstrated inclination toward one of the parties is legally non-existent, and any ruling issued under such circumstances lacks effectiveness, for it violates constitutional order and the essential guarantees of criminal procedure.
Supervening Recusal as an Expression of Constitutional Control in Criminal Proceedings.
When judicial impartiality is compromised during the oral and public trial, the figure of supervening recusal emerges as the appropriate procedural mechanism to restore balance and preserve the legitimacy of the proceedings.
Although not commonly used in judicial practice, its foundation lies in the principles of constitutional supremacy and effective judicial protection, since no procedural action may stand if it contradicts the essential core of the right to an impartial judge.
Supervening recusal does not constitute undue delay; rather, it is a supreme guarantee of the right to defense and due process. It operates as an emergency procedural remedy—an ultimate safeguard—that allows the suspension of a tainted trial when the appearance of justice has been lost due to demonstrations of partiality, premature assessments of evidence, or emotional commitments with one of the parties.
The exercise of supervening recusal thus becomes an act of internal constitutional control, aimed at preventing the consolidation of absolute nullities and the materialization of a void de pleno derecho ruling—one issued by a judge who has already expressed an opinion—to the detriment of the accused. Its omission not only violates the individual’s right to a fair trial but also corrupts procedural public order, undermining public confidence in the administration of justice.
Accordingly, when a judge, in the context of a trial for serious crimes—such as aggravated attempted femicide, carrying penalties of up to 28 years of imprisonment—expresses belief in the victim’s version before issuing a judgment, the process becomes irreparably contaminated by partiality. From that moment, the cause for supervening recusal arises, and all subsequent actions carry the weight of absolute nullity, in accordance with the guiding principles of a rights-based criminal system and the democratic rule of law.
Although the figure of supervening recusal is expressly regulated in Articles 53 and following of the Organic Law on the Supreme Court of Justice (LOTSJ), such regulation is limited to magistrates of the Supreme Court.
Nevertheless, in accordance with the principle of constitutional supremacy and with the constitutional guarantee of the right to a process before a natural, impartial, and independent judge (Articles 26 and 49 of the Constitution), as well as the right to effective judicial protection (Article 26), the application of supervening recusal must be extended—supletoriamente—throughout the entire Venezuelan judicial system whenever legitimate grounds arise that compromise judicial impartiality, even if such grounds appear once the oral and public trial has begun or during later stages.
Grave acts that undermine the judge’s impartiality necessarily require safeguarding the right to an impartial defense at all stages and levels of the proceedings.
This supplementary application is based on the following considerations:
Public-order nature of judicial impartiality
Judicial impartiality is a guarantee of procedural public order—inalienable and imprescriptible—which protects public trust in the administration of justice. Its violation produces absolute nullity; therefore, it cannot be restricted by formalistic or limiting procedural rules.
Normative gaps and general principles of law
In the absence of explicit regulation of supervening recusal for lower courts or other judicial bodies, supplementary application of the LOTSJ provisions—and other relevant laws—must be used, consistent with the general principles of law and with constitutional-conforming interpretation.
Doctrinal and Jurisprudential Foundations
The duties of judges, as indicated by Cuenca, may be positive or negative, referring to what they “must do or must refrain from doing.”
It is crucial to highlight the jurisprudence of the Constitutional Chamber of the Supreme Court of Justice, which underscores the need for transparency in the administration of justice as a guiding principle of criminal proceedings. In this regard, the judge not only serves as the director of the process but must actively ensure the effective protection of the procedural guarantees of the parties.
The Constitutional Chamber, in Judgment No. 2714/2001 of October 30, interpreting Article 29 of the Constitution of the Bolivarian Republic of Venezuela, clarified the meaning of impartiality—specifically in criminal jurisdiction, though applicable in other areas. The decision stated:
“In the reiterated jurisprudence of international human rights bodies—the International Criminal Court and the Inter-American Court of Human Rights—the impartiality of the court also has an objective dimension, referring to the confidence that the court must inspire in relation to the accused. It is essential that the judge issuing the judgment not be suspect of partiality.”
The Chamber recognized, however, that legal causes of recusal do not encompass all possible manifestations of a judge’s conduct favorable to one party. This is logical, since:
“Legal texts age (…) and become inadequate to understand new legal situations, and legislative reform does not occur with the speed necessary to provide appropriate solutions demanded by a changing society.”
(Enrique R. Aftalión, Introduction to Law, 3rd ed., Buenos Aires: Abeledo Perrot, 1999, p. 616).
Similarly, in Judgment No. 144/2000 (March 24), the Chamber elaborated:
“The natural judge, besides being predetermined by law (as indicated by Vicente Gimeno Sendra, Constitución y Proceso, Tecnos, Madrid, 1988), must meet several requirements to be considered such. These are derived from the judicial guarantees of Articles 26 and 49 of the Constitution and include:
Independence—free from orders or instructions from any person;
Impartiality—requiring conscious and objective impartiality, separate from psychological or social influences;
The Chamber emphasized that the transparency required by Article 26 of the Constitution is inseparable from judicial impartiality. Objective partiality may arise not only from statutory causes of recusal or inhibition but also from other behaviors favoring one party. Even if a recusal has been declared unfounded, this does not guarantee impartial adjudication if the grounds for partiality existed; thus, the affected party would have been deprived of a natural judge.
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