ICourtHR arise from this right: the first that of the judge, and the second that of the
78
State.
60.
Now, the ICourtHR has also determined that, in turn, the said obligations of the
State give rise to rights for judges or for other citizens. For example, the guarantee of an
adequate procedure for the appointment of judges necessarily entails the right of the
citizen to accede to public office in equal conditions; the guarantee not to be subject to
removal at will results in the disciplinary and sanctioning proceedings for judges necessarily
respecting the guarantees of due process of law, and those prejudiced being offered an
effective remedy; the guarantee of tenure should result in an adequate employment regime
for the judge in which, inter alia, transfers, promotions and other conditions are sufficiently
controlled and respected.79
61.
The ICourtHR, in this specific case, found that “the objective dimension is related to
essential aspects of the rule of law, such as the principle of the separation of powers, and
the important role played by the judicial function in a democracy. Consequently, this
objective dimension transcends the figure of the judge and has a collective impact on
society. In addition, a direct relationship exists between the objective dimension of judicial
independence and the right of judges to accede to and remain in office under general terms
of equality, as an expression of their guarantee of stability.”80 Therefore, “when the
permanence of judges in office is arbitrarily affected, the right to judicial independence
established in Article 8(1) of the American Convention is violated, in conjunction with the
right of access to and permanence in public service, under general conditions of equality,
established in Article 23(1)(c) of the American Convention.”81 On this point, it is relevant to
emphasize that this interactive interpretation of Articles 8(1) and 23(1)(c) of the American
Convention allows the ICourtHR to complement its case law in the case of Reverón Trujillo
by clarifying that the institutional guarantee of judicial independence derived from Article
8(1) of the American Convention, results in a subjective right of the judge that his
permanence in public office is not affected arbitrarily, under Article 23(1)(c) of the Pact of
San José.
VI. THE INSTITUTIONAL ASPECT OF JUDICIAL INDEPENDENCE IN THIS CASE AND
ITS RELATIONSHIP WITH DEMOCRACY
62.
In this case, the Inter-American Commission on Human Rights argued that it was
difficult for the National Congress to be able to guarantee independence, since, by nature, it
was a political body and, in particular, since it responded to interests of the Government
and of parliamentary majorities, with the result that Congress did not guarantee the right
to an independent judge, in its individual aspect, nor acted as such. In addition, the
Commission argued that, with regard to the impeachment of the members of the
Constitutional Tribunal, the expression “constitutional or statutory offenses,” and the
formulation of grounds for removal did not provide clear, certain and sufficiently
determined standards to safeguard the principle of judicial independence. In addition, the
Commission and the victims’ representatives noted that the call to impeachment on
December 1, 2004, was made after the statutory time frame had expired. Also the victims
78
Ibidem, para. 146.
79
Ibidem, para. 147.
80
Para. 198 of the Judgment.
81
Para. 199 of the Judgment.
15
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