55
their names for the selection process to accede to other positions,220 which was not
the case of the other judges of the First Court. However, the Court must assess
whether this circumstance effectively constituted a violation of Article 23(1)(c) of the
Convention.
206. This article does not establish the right to accede to public office, but the right
to do so “under general conditions of equality.” Consequently, compliance with the
obligation to ensure and respect this right means that “the criteria and processes for
appointment, promotion, suspension, and dismissal must be objective and
reasonable,”221 and “that persons do not suffer discrimination in the exercise” of this
right.222 In the instant case, the criteria that prevented access to the Judiciary for the
three judges complied with these standards, because the prohibition of
reincorporation into public office of those who have been dismissed is an objective
and reasonable condition whose ultimate objective is to guarantee the correct
exercise of the judicial task. In addition, it cannot, in itself, be considered
discriminatory by allowing the reincorporation of those who have retired. Given that
the Court lacks jurisdiction to determine whether a disciplinary sanction should have
been imposed in the instant case and, in such event, upon whom (supra para. 200),
it is also unable to analyze the consequences that such imposition would have
engendered.
207. Based on the foregoing, the Court finds no discrimination as regards access to
other positions in the Judiciary, either as established in the applicable Venezuelan
law or in the act that executed it. Consequently, the facts set out in the case sub
judice should not be considered a violation of Article 23(1)(c) of the Convention.
3.
Discrimination upon enforcing procedural law
208. The representative also alleged that discrimination occurred regarding the
enforcement of “procedural law” since an “appeal for annulment filed by Luisa Estella
Morales a week after the one filed by former Judges Apitz and Rocha” was “decided
within less than one year,” while “the other has not been decided though four years
and three months have elapsed.” The State has not provided a response to this
argument.
209. In this regard, the Court considers that the arguments of the representative
should not be analyzed under the provisions of Article 24 of the Convention but
pursuant to the general non-discrimination obligation contained in Article 1(1)
thereof. The difference between the two articles lies in that the general obligation
contained in Article 1(1) refers to the State’s duty to respect and guarantee “nondiscrimination” in the enjoyment of the rights enshrined in the American Convention,
while Article 24 protects the right to “equal treatment before the law.” In other
words, if the State discriminates upon the enforcement of conventional rights
containing no separate non-discrimination clause a violation of Article 1(1) and the
substantial right involved would arise. If, on the contrary, discrimination refers to
220
Cf. testimony of Mr. Apitz, supra note 137; testimony of Mr. Rocha, supra note 144, and
testimony of Mrs. Ruggeri, supra note 33, p. 745.
221
Cf. United Nations, Human Rights Committee, General Comment No. 25, Article 25: The right to
participate in public affairs, voting rights and the right of equal access to public service, CCPR/C/21/Rev.
1/Add. 7, July 12, 1996, para. 23.
222
23.
Cf. United Nations, Human Rights Committee, General Comment No. 25, supra note 221, para.
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