decide in each case on the admissibility of arguments of this nature in order to
safeguard the procedural balance of the parties.170
135. In this regard, the Court emphasizes that, in the cases of Apitz Barbera et
al. and Reverón Trujillo, it indicated that Article 23(1)(c) does not establish the
right to accede to public office, but rather the right to do so “on general terms of
equality.” This means that this right is respected and guaranteed when “the criteria
and processes for appointment, promotion, suspension, and removal are objective
and reasonable,” and when the “individual is not discriminated against” in the
exercise of this right.171 In addition, the Human Rights Committee has interpreted
that the guarantee of protection covers both access and permanence under
conditions of equality and non-discrimination with regard to the procedures of
suspension and dismissal.172 In this regard, the Court has indicated that access
under equal conditions constitutes an insufficient guarantee if it is not accompanied
by the effective protection of permanence in the post to which the individual has
acceded,173 especially if stability is considered a component of judicial
independence. Also, equal opportunities in access to and stability in the post
guarantee freedom from all political interference or pressure.174
136. The Court observes that, in this case, Mrs. Chocrón Chocrón’s access to
public service is not in dispute. Moreover, with regard to the State’s arguments
concerning the need for temporary judges (supra para. 133), there is no dispute
either concerning the possible use of this type of judge to fill vacancies during a
judicial restructuring process or given the need to provide service. Also, the Court
notes that this case differs from the Reverón Trujillo case, where there was a
difference in the treatment of judges who were subject to reinstatement after an
arbitrary dismissal and judges who did not obtain that reparation. In any case, the
Court points out that the arguments presented by the representatives with regard
to the conditions of permanence of temporary and provisional judges have been
addressed in aspects examined in the preceding sections 3, 4 and 5. Consequently,
the Court finds it unnecessary to rule on the alleged violation of Article 23(1)(c) of
the American Convention.
7. Obligation to adopt domestic legal provisions
7.1.
Arguments of the parties
137. The Commission argued that “the transitory regulations applied to the victim
(concentrated in the powers granted to the Judicial Commission of the SCJ) do not
satisfy international standards in the area of judicial independence and guarantees
of due process.” Thus the Commission asked the Court to “conclude and declare
170
Cf. Case of the “Mapiripán Massacre” v. Colombia, supra note 164, para. 58; Case of the Dos
Erres Massacre v. Guatemala. Preliminary objection, merits, reparations and costs. Judgment of
November 24, 2009. Series C No. 211, para. 165, and Case of Vélez Loor v. Panama, supra nota 147,
para. 43.
171
Cf. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela, supra
note 121, para. 206, and Case of Reverón Trujillo v. Venezuela, supra note 12, para. 138. See also:
United Nations, Human Rights Committee, General Comment No. 25: The Right to Participate in Public
Affairs, Voting Rights and the Right of Equal Access to Public Service, CCPR/C/21/Rev. 1/Add. 7, 12 July
1996, para. 23.
172
Cf. United Nations, Human Rights Committee, Pastukhov v. Belarus (814/1998), ICCPR,
A/58/40 vol. II (5 August 2003) 69 (CCPR/C/78/D/814/1998) paras. 7.3 and 9; Adrien Mundyo Busyo,
Thomas Osthudi Wongodi, René Sibu Matubuka et al. v. Democratic Republic of the Congo (933/2000),
ICCPR, A/58/40 vol. II (31 July 2003) 224 (CCPR/C/78/D/933/2000) at para. 5.2.
173
Cf. Case of Reverón Trujillo v. Venezuela, supra note 12, para. 138.
174
Cf. United Nations, Human Rights Committee, General Comment No. 32, supra note 128, para.
19.
43
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