III.

PRELIMINARY QUESTION

6.
The Political Constitution of 1993 establishes in its Article 154, subparagraph 2, that it
pertains to the National Judicial Council “to renew judges and prosecutors at all levels every seven years. Those
who are not renewed cannot be reinstated into the Judiciary or into the Attorney General’s Office. The process
of ratification is apart from disciplinary measures.” On the basis of the above, in 2000, the Peruvian State
extended invitations to processes to evaluate and renew judges and prosecutors. The regulatory framework
governing this process, that is, the Constitution, Basic Law of the National Judicial Council No. 26397, and the
Regulations for the Evaluation and Renewal of Judges and Prosecutors stipulated that the decisions of the CNM
with respect to the renewal of judges and prosecutors were not subject to either administrative or judicial
review, and they did not require any indication of the reasons behind these decisions.
7.
On December 1, 2004, the Constitutional Proceedings Code came into force, making it possible
to file constitutional proceedings against CNM’s rulings concerning the renewal of judges and prosecutors, as
long as these rulings had not indicated their reasons or had been issued without a prior hearing for the
interested party. Afterwards, the CNM adjusted its Regulations for Evaluation and Ratifications, as stipulated
by the Constitutional Proceedings Code.
8.
In turn, jurisprudence of the Constitutional Court started changing. Indeed, as a result of
judgment No. 1550-2003-AA/TC of July 16, 2003, the Constitutional Court established that nonrenewal was a
vote of no confidence and that therefore it could not entail the impossibility of being reinstated into the judicial
sector, opening up the possibility for judges and prosecutors who had not been renewed to submit their
candidacies to merit-based admissions processes. Afterwards, as a result of judgment 03361-2004-PA/TC
issued August 12, 2005, the Court established that the grounds for CNM’s rulings had to be given and that a
series of guarantees had to be provided, among which the right to a hearing. Nevertheless, the Constitutional
Court established that this change in jurisprudence would not be retroactive, establishing that, for all those
proceedings that had been ruled upon on the basis of the previous jurisprudence, it would not be possible to
file once again an appeal on constitutional grounds.
9.
This criterion of jurisprudence was in force until the issuance of judgment No. 01412-2007PA/TC of February 11, 2009, when the Constitutional Court ruled that “regardless of when it was issued,” all
rulings of the CNM must be substantiated, ordering that this approach be taken into account by all the judges
of the nation to resolve analogous cases. That same judgment overturned a ruling of nonrenewal issued by the
CNM, ordering the immediate reinstatement of the magistrate who had filed an appeal on constitutional
grounds.
IV.

POSITION OF THE PARTIES

A.

Position of the petitioners

1.

Common allegations

10.
In the petitions, it was argued that the Peruvian State had failed to comply with Article 8 (right
to a fair trial), Article 9 (principle of applicable law and retroactivity), and Article 25 (judicial protection), in
connection with Article 1.1 (obligation to respect rights) and Article 2 (duty to adopt domestic law effects) of
the American Convention, because the actions of the National Judicial Council, whereby it was decided to not
renew the alleged victims, failed to respect their right to be informed about the charges against them on the
basis of which it was decided to not renew their employment, without the possibility of presenting their case
and evidence or to challenge judicially or administratively the decision of nonrenewal. Furthermore, the
petitions argue that there was a breach of Article 11 (protection of honor and dignity), Article 23 (political
rights), Article 24 (equality before the law), and Article 26 (progressive development), because their
nonrenewal had damaged their reputation and honor, as well as their right to work, their right to have access
to public office without having been convicted in a criminal court, and their right to be treated with equality
compared with other judges who had been renewed, even when the latter had disciplinary penalties against

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