27
*
*
99. From all the information previously stated it could be concluded that the
restructuring of the Judicial Power in Venezuela, which can be considered started
with the approval of the summons of the Constituent Assembly in April 1999, has
lasted more than 10 years. Additionally, at the time at which the present judgment is
issued there is no information in the case file before the Court regarding procedures
addressed to the adoption of the mentioned Code of Ethics or the laws that would
determine the disciplinary courts (supra paras. 86, 87, and 88), despite the fact that
the Constitution established that the legislation regarding the Judicial System would
be approved within the first year after the installation of the National Assembly
(supra para. 87). On the other hand, the disciplinary powers have been exercised by
the CFRSJ since the year 2000 (supra paras. 91 and 92). Finally, the regulations
approved by the Full Court of the TSJ established a program through which nontitular judges could be entitled without participating in the public tenders established
for the general population, which consisted of the PFI and the knowledge exam
(supra paras. 96 through 98).
2.3
The provisional judges
100. According to the State, the provisional judges are non-titular judges, which
“have been appointed in an exceptional manner, through an act emanating from the
Judicial Emergency Commission, of the Judicial Commission of the [TSJ], or the Full
Court of the [TSJ], without carrying out the Public Competitive Tender established in
Article 255 of the Constitution.” Therefore, according to the State, these provisional
judges “are not subject to the judicial career and are therefore excluded of the
benefits of stability and continuance that derive from it.”
101. From the evidence provided it can be concluded that in the domestic
jurisdiction there is a jurisprudential line both of the SPA and the Constitutional
Chamber of the TSJ, according to the Decree of Reorganization of the Judicial Power
(supra para. 84), that states that the provisional judges are of free appointment and
removal. In effect, the SPA in the year 2000, upon solving an administrative appeal
for annulment, held that “the right to stability […] is reserved to the judges that
enter the judicial career through the means enshrined in the constitution and legally
developed, this is, through public competitive tenders [and that] the mentioned right
refers to the position occupied by the official, of which he may not be dismissed or
suspended for any reason or through any procedure different to those established,
that is, prior compliance of the disciplinary regimen applicable to it.”124 Additionally,
the SPA stated that:
those who occupy a position for which they have not competed, lack the right under analysis
and may therefore be removed from the position in question in the same conditions in which it
was obtained, that is, without the obligation for the competent Administration to justify that
separation in the stipulations that make up the applicable disciplinary regimen –we insist- only
to the career judges, this is, to those that occupy a position obtained in a previous competitive
tender.125
102. This jurisprudence of the SPA has been reiterated in judgments of 2004 and
124
Cf. judgment No. 02221 of the SPA issued on November 28, 2000 (dossier of annexes to the
respondent’s plea, Volume II, annex 25, folio 1126).
125
Cf. judgment No. 02221 of the SPA, supra note 124, folio 1127.