III.

POSITION OF THE PARTIES

A.

Position of the Petitioner

6.
The petitioner states that from 1991 to 2000 there was no agency that appointed prosecutors
in Peru and for this reason the attorney general’s office appointed them on a provisional basis subsequent to
evaluating them. The petitioner states the provisional prosecutors discharged the same duties as permanent
prosecutors but were removed by the Attorney General’s office without any prior proceedings.
7.
Under these circumstances, the petitioner contends that he was appointed as the “Provisional
Provincial Deputy Prosecutor for the Joint Provincial Office of the Prosecutor for La Mar”, pursuant to
resolution No. 464-98-MP-CEMP of June 30, 1998, and that thereafter, he was appointed Provisional Provincial
Deputy Prosecutor for the Second Office of the Criminal Provincial Prosecutor for Huamanga, pursuant to
resolution No. 565-2002-MP-FN of April 8, 2002. He states that he held the position of Prosecutor for five
consecutive years without ever having been subject to any administrative penalty.
8.
Nevertheless, the petitioner states that pursuant to Resolution No. 087-2003-MP-FN of
January 21, 2003, the Attorney General of the Nation [Fiscal de la Nación] decided to remove him from his post
without any cause for ordering said removal. Nonetheless, in said Resolution, a reference was made to a
complaint and a report filed against him, which were pending at that time.
9.
The petitioner indicates that he filed a motion for reconsideration [recurso de
reconsideración] which was declared groundless on February 14, 2003, based on the fact that his appointment
was of a temporary nature. He filed an amparo appeal regarding this decision with the First Civil Court of
Huamanga, Ayacucho, Peru, which was declared groundless, taking into account that his removal from the post
did not constitute a dismissal for any disciplinary matter, rather it was a decision to end his appointment . He
points out that this decision was upheld by the Civil Court pursuant to a judgment of July 11, 2005, which ruled
that the petitioner could not assert rights that are conferred on permanent prosecutors. Finally, the petitioner
filed a constitutional remedy [recurso de agravio constitucional] regarding this ruling with the Constitutional
Court, which declared it groundless because provisional posts have a status that does not give rise to any
further rights than those inherent to such posts.
10.
The petitioner claims that under Peruvian legislation, permanence in the post of provisional
prosecutors continues while there are no permanent prosecutors to replace the provisional ones, and in his
case this requirement had not yet been fulfilled. In this respect the petitioner states that Article 245 of the
Peruvian Organic Law of the Judiciary is applicable. Said Article provides that in the case of provisional and
substitute magistrates, they cease to exercise their functions when the post they temporarily hold is covered
by a permanent magistrate. The petitioner contends that he was never informed about any fact, situation or
accusation against him, nor were charges of improper or bad conduct ever raised, and he was removed from
his post without any prior proceedings. In this regard, the petitioner considers that his removal from his post
by the Office of the Attorney General of the Nation [Fiscalía de la Nación] was an arbitrary act that violated his
right to due process and his right to defense protected under Article 8 of the American Convention.
11.
The petitioner contends that Article 9 of the American Convention was violated as he was
removed from his post without having committed any specific violation provided for by law that constitutes
conduct unbecoming to a prosecutor. He also indicates that the State violated Article 11 of the American
Convention, given that removal from a post for no reason has stigmatizing effects vis-a-vis the community,
which gets the impression that said removal stems from improper and even illegal conduct.
12.
The petitioner argues that Article 24 of the American Convention, which provides for the right
to equal protection under the law, was violated inasmuch as the aforementioned situation constitutes unequal
protection of provisional and permanent prosecutors under the law and that his right to effective judicial
protection, stipulated in Article 25 of the American Convention, was violated, given that there was no effective
remedy allowing judicial oversight of removal proceedings of provisional prosecutors and judges.

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