136. The Court, based on the arguments and evidence provided by the State, notes that,
currently, the norms that regulate the appointment to office, tenure and termination of the
functions of provisional prosecutors is contained in the “Internal regulations for the
appointment, evaluation and tenure of provisional prosecutors,” adopted by Resolution of the
Prosecutor General No. 4330-2014-MP-FN of October 15, 2014. These regulations continue to
condition the appointment of provisional prosecutors and also their termination to the concept
of the “needs for the service,” among other aspects, without establishing the guarantee of
stability of these officials, because it does not circumscribe their removal from office to the
established causes in order to safeguard their independence (supra para. 83). Indeed, article
15 of the said regulations establishes:
The permanence of the provisional prosecutors depends on:
15.1.
15.2.
15.3.
15.4.
Probity and aptitude in performance.
The need for the service.
Availability of a budget.
Conversion, relocation, modification or reform of the office of the prosecutors .129
137. It should also be indicated that the reigning criteria, held by both administrative 130 and
jurisdictional authorities131 concerning the tenure of provisional prosecutors continues to be
based on the power of the appointing authority to decide discretionally, in each case, on the
pertinence of terminating the appointment, thereby disregarding the guarantee of stability of
those officials.
138. Consequently, the Court determines that the Peruvian State, within a reasonable time,
must adapt its domestic laws as outlined in paragraphs 81 and 83 of this judgment.
139. Nevertheless, the Court reiterates that the different State authorities, including judges
and organs involved in the administration of justice, are obliged to exercise ex officio a control
of conventionality between domestic law and the American Convention, evidently within their
respective terms of reference and the corresponding procedural regulations. In this task, the
domestic authorities should take into account not only the treaty but also how it has been
interpreted by the Inter-American Court, the ultimate interpreter of the American
Convention.132 Therefore, regardless of the legal reforms that the State must adopt, it is
essential that the authorities with competence to decide on the appointment and removal of
prosecutors, and also the courts of justice, adapt their interpretation of the law to the
principles established in this judgment.
E. Compensation
Cf. Resolution of the Prosecutor General No. 4330-2014-MP-FN of October 15, 2014 (evidence file, volume IV,
annex 42 to the answering brief, folios 1151 to 1157).
129
Cf. The witness Rita Arleny Figueroa Vásquez stated that the entry of a “non-career provisional prosecutor”
into the institution was conditional “on the presence of a vacancy, the existence of the ‘need for the service’ […] and,
to the extent that the individual had shown probity and aptitude in the performance of the function. The termination
comes into effect when there is no longer a ‘need for the service’ or the institutional budget.” Cf. Statement made by
Rita Arleny Figueroa Vásquez (evidence file, volume VI, affidavits, folios 1243, 1244 and 1255).
130
See, judgment of the Constitutional Court of September 29, 2015, file No. 1274-2013-AA/TC and judgment of
the Constitutional Court of May 9, 2017, file No. 00646-2015-PA/TC (evidence file, volume IV, annex 39 to the
answering brief, folios 1067 to 1070, 1098 and 1099); also, judgment of the Fifth Chamber for Administrative, Labor
and Social Security Affairs of the Superior Court of Justice of Lima of January 19, 2017, file No. 14501-2013 (evidence
file, volume IV, annex 40 to the answering brief, folios 1112 to 1118).
131
Cf. Case of Almonacid Arellano et al. v. Chile. Preliminary objections, merits, reparations and costs. Judgment
of September 26, 2006. Series C No. 154, para. 124, and Case of Fernández Prieto and Tumbeiro v. Argentina. Merits
and reparations. Judgment of September 1, 2020. Series C No. 411, para. 100.
132
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