sanction of disqualification or dismissal) on someone due to
social misconduct (in the performance of public service or
outside of this) that affects the exercise of their political rights
to elect and be elected. This may only occur through a judicial
act (judgment) by a competent judge in the corresponding
criminal proceedings.”20 On this occasion, although the Court
based its position on a literal and teleological interpretation of
the article, it accorded a differentiated category to the political
rights of officials elected by popular vote, which is not justified
by the literal meaning of the article, without explaining the
grounds for its position.
13. The fact is that neither then nor now has the Court addressed
the fact that Article 23 does not recognize differences in
treatment between the political rights of public officials based on
the manner of their appointment, even though it has founded its
reasoning on an interpretation that is fundamentally literal.21
Moreover, the Court has not provided sufficient arguments when
propounding differences in the level of protection of the rights of
public officials in its case law.
14. In addition, the void persists between the scope of Article 23(2)
and the specificity of the hypotheses proposed for the limitation
of political rights. The decision explicitly indicates that, in the
case of prosecutors, removal from office – as a form of limitation
of political rights – is acceptable under the Convention even
though this was not ordered based on “sentencing by a
competent court in criminal proceedings.” The latter also leads
us to consider that the Convention does not establish an absolute
prohibition that, in certain circumstances, prevents disciplinary
law affecting stability in office.
iii) The absence of a relationship between the notions of job stability and
the criteria that condition provisional appointments: the term
15. As I indicated when referring to the Court’s practice of
addressing the alleged violations in a single chapter, blurring the
scope of each of the Convention’s rights and affecting the solidity
and rigor of the decision, I consider that the analysis made in
this case of the right to job stability in relation to judicial
guarantees and the right of access to public office under general
conditions of equality leads to confusions that result in a
reduction in its sphere of protection.
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
20
Cf. Case of Petro Urrego v. Colombia. Preliminary objections, merits, reparations and costs.
Judgment of July 8, 2020. Series C No. 406, para. 96.
21
Article 23. Political rights.
1. Every citizen shall enjoy the following rights and opportunities: (a) to take part in the conduct of public affairs, directly or through
freely chosen representatives; (b) to vote and to be elected in genuine periodic elections, which shall be by universal and equal
suffrage and by secret ballot that guarantees the free expression of the will of the voters; and (c) to have access, under general
conditions of equality, to the public service of his country.
2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age,
nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.