The independence and autonomy of the prosecution services constitute an
indispensable corollary to the independence of the judiciary. Therefore, the general
tendency to enhance the independence and effective autonomy of the prosecution
services should be encouraged.
Prosecutors should be autonomous in their decision-making and should perform their
duties free from external pressure or interference, having regard to the principles of
separation of powers and accountability. 40
61.
In view of the foregoing considerations, the IACHR considers that the standards cited in
the previous section are applicable to prosecutors, who by the nature of the function they perform should
enjoy the reinforced stability in their position as a guarantee for independence in their work and should
only be replaced for grave breaches or because the term or condition established in their designation has
been completed or fulfilled, similar to judges. As was indicated in the previous section, the foregoing is
applicable to officers appointed provisionally, insofar as they perform the same function as those will
full appointments, and it is that function that is protected under the principle of judicial independence.
3.
Analysis of the instant case
3.1
As per the right to be heard, the right to defense, and the freedom from ex post
facto laws
62.
Applying what has been indicated, the Commission observes that in the instant case two
resolutions were issued with respect to Yenina Esther Martínez Esquivia. In one her appointment was
terminated and in the other she was transferred to a place far from where she had been serving. The
Commission considers that both resolutions constituted state acts that determine rights and that
therefore at the very least the due guarantees established at Article 8(1) of the American Convention are
applicable, including the right to be heard and the duty to state the reasons in a judicial decision. In
addition, taking into account that one of the resolutions had the effect of terminating her in her position
as prosecutor, for the reasons stated just below, the Commission considers that the case should also be
analyzed in light of the applicable guarantees at Articles 8(2) and 9 of the Convention.
63.
As indicated in the section on factual determinations, the IACHR recalls that the alleged
victim was appointed in 1992 as Provisional Judge of Criminal Investigation of Mompox and as of July 1,
1992, she was brought on as Sectional Prosecutor Grade 18, and served as a prosecutor as of that date.
On October 29, 2004 the Attorney General of the Nation declared that the alleged victim was relieved of
her duties, without stating any reasons.
64.
The Commission observes that the original appointment of the alleged victim in her
capacity as judge indicated that she was appointed provisionally, while she presented the documentation
for confirmation in the position. Subsequently she was incorporated to the position of prosecutor,
provisionally, without any term or condition.
65.
The State indicated that the Attorney General of the Nation has the power to remove,
at his or her discretion, the officials appointed provisionally, that these acts need not state reasons, and
that they are presumed to be legal.
66.
The IACHR considers that the free removal of provisional prosecutors has a negative
impact on their independence, which should be guaranteed, insofar as it renders them vulnerable to
being removed because of the decisions they make, or by virtue of arbitrary decisions by the
administrative or judicial entities.
40
Consultative Council of European Prosecutors, Opinion No. 9 (2014), Rome Charter, points IV and V.
11