by organs outside the Judiciary, or even by those judges who exercise functions of review
and appeal.60
44.
The Court insisted once again on the guarantees that result from judicial
independence: an adequate appointment procedure, tenure, and the guarantee against
external pressure, and stated that the authority in charge of the procedure to remove a
judge must act with independence and impartiality in the proceeding established to that
end, and permit the exercise of the right of defenses. This is because the removal of judges
at will leads to the objective doubt of the observer about their real possibility of deciding
specific disputes without fear of reprisal.61
45.
The ICourtHR reiterated that, even though titular and provisional judges have the
same guarantees, they do not provide equal protection for the two types of judge, because
provisional and temporary judges are, by definition, appointed in a different way and do not
have an unlimited permanence in office. Thus, provisional and temporary judges have not
proved that they have the qualifications and aptitude to exercise the office with the
guarantees of transparency imposed by public competition. However, this does not mean
that provisional and temporary judges should not have an appointment procedure because,
according to the United Nations Basic Principles on the Independence of the Judiciary:
“[a]ny method of judicial selection shall safeguard against judicial appointments for
improper motives.”
46.
In addition, the Inter-American Court stated that, in the same way in which the
State is obliged to guarantee an adequate appointment procedure for provisional judges, it
must guarantee them a certain stability in office. In this way, in the case of provisional
judges, the guarantee of stability translates into the requirement that they can enjoy all the
benefits of tenure until the resolutory condition that ends their mandate.
47.
The ICourtHR also indicated that the stability of provisional judges is closely linked
to the guarantee against external pressure, because if provisional judges do not have
certainty about their permanence for a specific time, they will be vulnerable to pressure
from different sectors, above all from those who have the power to decide on dismissals or
promotions in the Judiciary.62
48.
The Inter-American Court also stated that provisional appointments should be
exceptional in nature and not the rule, and that they should not be extended indefinitely.63
49.
It also indicated that any public authority, whether administrative, legislative or
judicial, whose decisions may affect the rights of the individual, is required to adopt these
decisions with full respect for the guarantees of due process of law. In addition, it reiterated
that, any organ of the State that exercises functions of a substantially jurisdictional nature,
is obliged to adopt decisions that abide by the guarantees of due process of law in the
terms of Article 8 of the American Convention.64
60
Case of Chocrón Chocrón v. Venezuela. Preliminary objection, merits, reparations and costs. Judgment of
July 1, 2011. Series C No. 227, para. 97.
61
Ibidem, para. 99.
62
Ibidem, paras. 104 to 106.
63
Ibidem, para. 107.
64
Ibidem, para. 115.
12
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