prosecutors gives rise to the objective doubt about their effective possibility of exercising their
functions without fear of reprisals.”18
12.
To the contrary, in the recent decision in the case of Petro Urrego v. Colombia, the
Court reiterated the position taken in the case of López Mendoza v. Venezuela 19 according to
which “[…] Article 23(2) of the American Convention makes clear that this instrument does
not allow any administrative body to apply a sanction involving a restriction (for example,
imposing a 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.
Cf. Case of Casa Nina vs. Peru. Preliminary objection, merits, reparations and costs. Judgment of November
24, 2020. Series C No. 419, para. 80.
18
Cf. Case of López Mendoza v. Venezuela. Merits, reparations and costs. Judgment of September 1, 2011.
Series C No. 233, para. 107.
19
Cf. Case of Petro Urrego v. Colombia. Preliminary objections, merits, reparations and costs. Judgment of July
8, 2020. Series C No. 406, para. 96.
20
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.
4