Tenure is a guarantee of judicial independence; and is itself composed of the following
guarantees: permanence in office, an adequate promotion procedure, and no unjustified
dismissal, or removal at will.56 In addition, tenure should ensure the reinstatement in office
of any judge who may be arbitrarily deprived of this.57 This does not mean that provisional
judges have an unlimited permanence in their functions, but they should be guaranteed a
certain term in office.58 In other words, they should have the certainty of permanence for a
set time, which protects them from pressure from different sectors.59
40.
In the same way, the ICourtHR argued that Article 8(1) recognizes that “[e]very
person has a right to a hearing […] by an independent […] judge or court.” The terms in
which this article is drafted indicate that the subject of the right is the defendant, the
person situated in front of the judge who will decided the case that has been submitted to
him. Two obligations arise from this right: the first of the judge, and the second of the
State. The judge has the obligation to be independent; an obligation that he meets when he
judges only in accordance with – and based on – the law. Meanwhile, the State has the
obligation to respect and ensure, pursuant to Article 1(1) of the Convention, the right to a
hearing by an independent judge. The obligation of respect consists in the negative
obligation of the public authorities to abstain from interfering unduly in the Judiciary or with
its members; in other words, in relation to the specific judge. The obligation of guarantee
consists in preventing the said interferences and investigating and punishing those who
commit them. In addition, the obligation of prevention consists in the adoption, pursuant to
Article 2 of the American Convention, of an appropriate legal framework that ensures an
adequate appointment procedure, the tenure of judges, and the other requirements.
41.
Now, the said State obligations give rise, in turn, to rights for the judges and for all
other citizens. For example, the guarantee of an adequate appointment procedure for
judges necessarily entails the right of the citizen to have access to public office in equal
conditions; the guarantee of not being subject to removal at will signifies that, in the case
of judges, the disciplinary and punishment procedures must necessarily respect the
guarantees of due process, and those subject to such procedures must be provided, among
other matters, with an effective remedy; the guarantee of stability should translate into an
appropriate employment regime for judges, in which transfers, promotions, and other
conditions are sufficiently controlled and respected.
42.
Lastly, in the case of Chocrón Chocrón v. Venezuela, the ICourtHR examined the
arbitrary dismissal of the provisional criminal judge of first instance from the Judicial
Circumscription of the Metropolitan Area of Caracas, without the minimum guarantees of
due process and without adequate grounds, without the possibility of being heard, and of
exercising her right of defense, and without having been provided with an effective judicial
remedy to contest the violations of her rights, all as a result of the absence of guarantees
in the Judiciary’s transition process.
43.
The Inter-American Court reiterated that one of the main purposes of the separation
of public powers is the guarantee of the independence of judges. The objective of protection
stems from the need to avoid the judicial system, in general, and its members, in
particular, being subjected to possible undue constraints in the exercise of their functions
56
Ibidem, para. 79.
57
Ibidem, para. 81.
58
Ibidem, paras. 115 and 116.
59
Ibidem, para. 117.
11
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