132. The Inter-American Commission did not allege the violation of Article 23 in
this case. Although, in its Report on Admissibility, the Commission considered that,
in the case of Mrs. Chocrón Chocrón, “violations of Articles 23(1)(c) and 24 of the
American Convention could have been constituted,”168 in the Report on Merits, the
Commission found that “the petitioner did not present any substantive arguments
that could prove that when the facts of the case took place, Mercedes Chocrón
[Chocrón] was the subject of unequal treatment in relation to other judges in the
same conditions,” and therefore concluded that the said article had not been
violated.169
133. For its part, the State indicated that the representatives “seek to ignore
inter-American case law and to incorporate into these proceedings facts that are
not included in the application.” Despite this, the Venezuelan State indicated, ad
cautelam, that the provisional status “was not applied to the alleged victim; but
rather, she was duly informed of the temporary nature of her functions when she
was appointed as a temporary judge.” In this regard, according to the State, “this
was not an arbitrary or capricious appointment, but responded to a particularity of
the Venezuelan judicial system.” It also indicated that “the concept of temporary
judge does not entail discriminatory or unlawful treatment, because those who
accepted the post were aware of their temporary status and the possibility that
they could be removed from the post, either by the Judicial Commission in exercise
of its competence, or because another person had obtained the permanent post
through the competitive examination. According to the State, “the elimination of
the juridical category of temporary judge would mean, far from being a violation of
the conditions of equal access to administrative posts, the possibility that, given the
lack of permanent judges, the vacancies could not be filled on time, because the
organization of a competitive examination entails extensive logistics in order to
grant those permanent posts to the most suitable individuals.” In this regard, “the
failure to appoint temporary judges would cause the collapse of the judicial system
[…], in the context of the restructuring process.” According to the State, “claiming
that all judges should enjoy absolute stability would make it impossible to make the
corrections required for the proper functioning of the Venezuelan Judiciary.”
According to the State, Mrs. Chocrón Chocrón “has not stated that it would be
impossible for her to access the Venezuelan system of justice, or that she has been
discriminated against in the selection procedures because she was a temporary
judge.”
6.2.
Considerations of the Court
134. Taking into account that the violation of Article 23(1)(c) was not argued by
the Inter-American Commission (supra para. 132), the Court reiterates that the
alleged victims and their representatives may invoke the violation of rights other
than the ones included in the application, provided this refers to facts already
included in the application (supra para. 42) and that it is done at the appropriate
procedural moment - in the pleadings and motions brief - which is what occurred in
this case. The purpose of this possibility is to implement the procedural faculty of
locus standi in judicio, recognized to the alleged victims or their representatives in
the Court’s Rules of Procedure, without exceeding the limits established in the
Convention to their participation and to the exercise of the Court’s jurisdiction, or
prejudicing or violating the right of defense of the State, which has procedural
opportunities to respond to the arguments of the Commission and of the
representatives at all stages of the proceedings. Thus, it is for the Court, finally, to
168
Report on Admissibility No. 38/06, supra note 4, folio 50.
169
Report on Merits No. 9/09, supra note 5, folio 34.
42
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