16.
The Court asserts that the determination of a specific term or condition in the resolution
appointing a provisional prosecutor is sufficient to ensure his job stability, not only as an
element necessary to protect the independence of this type of official, but also his right to
work.
17.
This is a position that lacks certainty. The determination of a specific term in the
appointment resolution does not prevent stability in office depending on the discretionality of
the appointing authority. The determination of a period of time, in most cases months (three
months, six months or even a year), still leaves the renewal or termination of the employment
relationship to the discretion of the appointing authority and cannot prevent the official from
being exposed to external pressures or having his independence affected due to the lack of
security about the renewal of the term.
18.
I consider that we can truly speak of stability in office in the case of provisional officials
if their permanence is exclusively subject to the holding of a competitive selection procedure
or to the commission of a disciplinary or criminal offense. It cannot be argued that, based on
precarious short-term contracts, job stability is protected as a component of the right to work,
because the determination of a specific term does not ensure the continuity in office or avoid
discretionality in the termination decision.
iv) The scope of the concept of control of conventionality in relation to the
obligation to amend provisions of domestic law and the concept of an effective
judicial remedy
19.
In general, it could be said that the control of conventionality, as a mechanism of the
inter-American system of human rights, consists in: (i) the obligation not to apply domestic
laws that are contrary to the Convention, and (ii) interpreting the Convention and domestic
law together to establish which would be the most favorable to the protection of the human
rights of those concerned. The elements of this control have been extensively developed in
the Court’s case law and are consolidated on the basis of its judicial practice and that of the
domestic authorities.
20.
In the instant case, the Court analyzed the control of conventionality from two angles.
On the one hand, it considered that domestic law needed to be amended in relation to the
guarantee of irremovability of prosecutors in Peru; on the other hand, it considered that the
right to an effective judicial remedy had been violated because the domestic authorities had
not applied the inter-American standard.
a. Article 2 of the Convention: obligation to amend provisions of domestic
law
21.
First, it has to be pointed out that the Court considered that the absence of a term or
condition in both the appointment and the removal of Mr. Casa Nina was justified under the
provisions of domestic law. Consequently, it criticized not only the authorities’ interpretation
of domestic law, but also the failure to enact norms leading to the effective observance of
such guarantees. Lastly, it ordered the State to make the necessary amendments to its laws
to adapt them to the criteria of the Convention. However, it recognized that, before this
measure became effective, it corresponded to all the relevant officials to make an
interpretation in keeping with the obligations under international law.
22.
The formula adopted in the operative paragraphs reveals a possible contradiction
because, if it is possible to make an interpretation of the laws that is in keeping with the
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