30
vulnerable to pressure from different sectors, mainly from those who have the power to decide on
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dismissals or promotions within the judiciary.
136.
The Court has also said that:
[…] States are bound to ensure that provisional judges be independent and therefore must grant
them some sort of stability and permanence in office, for to be provisional is not equivalent to being
discretionally removable from office. […] Along the same lines, the Court considers that the fact
that appointments are provisional should not modify in any manner the safeguards instituted to
guarantee the good performance of the judges and to ultimately benefit the parties to a case. Also,
such provisional appointments must not extend indefinitely in time, and must be subject to a
condition subsequent, such as a predetermined deadline or the holding and completion of a public
competitive selection process based on ability and qualifications, or of a public competitive
examination, whereby a permanent replacement for the provisional judge is appointed. Provisional
appointments must be an exceptional situation, rather than the rule. Thus, when provisional judges
act for a long time, or the fact is that most judges are provisional, material hindrances to the
independence of the judiciary are generated. Such vulnerable situation of the Judiciary is
compounded if no removal from office procedures respectful of the international duties of the States
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are in place either.
137.
The IACHR has already stated in its report Democracy and Human Rights in Venezuela
that the problem of temporary status “also affects prosecutors in Venezuela, in that all the prosecutors of
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the Attorney General’s Office are freely appointed and removable” . In 2008, alone 638 prosecutors
were appointed without a public competition being held and without their being given regular status,
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consequently making them freely appointed and removable .
138.
In its report the IACHR has already expressed its concern about the situation of
Venezuela’s prosecutors, recalling that in addition to the possible undermining of their independence and
impartiality that could arise from the constant removals and new appointments, the provisional status and
resultant lack of tenure of the civil servants responsible for initiating and pursuing criminal investigations
could also necessarily lead to difficulties in identifying, pursuing, and concluding specific lines of
investigation as well as in meeting the procedural deadlines set for the investigation phase. Changes in
investigating prosecutors have a negative impact on the pursuit of the corresponding investigations in
terms of, for instance, the collection and ongoing assessment of evidence. This situation could therefore
have negative repercussions on the rights of victims in criminal proceedings involving human rights
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violations .
139.
The IACHR stressed that during the inaugural ceremony of the National Prosecutors’
School on October 6, 2008, the Attorney General of the Republic, Luisa Ortega Díaz, acknowledged that
Prosecutors whose appointments are provisional are at a disadvantage; their provisional status
exposes them to the influence of pressure groups, which would undermine the constitutionality and
legality of the justice system. Provisional status in the exercise of public office is contrary to Article
114
I/A Court H. R., Case of Chocrón Chocrón v. Venezuela, Judgment of July 1, 2011, Series C No. 227, para. 106. See:
I/A Court H. R., Case of Reverón Trujillo v. Venezuela, Judgment of June 30, 2009, Series C No. 197, para. 117.
115
I/A Court H. R., Case of Apitz Barbera et al. (“First Court of Administrative Disputes”), Judgment of August 5, 2008,
Series C No. 182, para. 43.
116
IACHR, Report on Democracy and Human Rights in Venezuela, OEA/Ser.L/V/II. doc. 54, December 30, 2009, para.
264.
117
. IACHR, Report on Democracy and Human Rights in Venezuela, OEA/Ser.L/V/II. doc. 54, December 30, 2009, para.
264.
118
IACHR, Annual Report 2006. Chapter IV: Human Rights Developments in the Region. Venezuela, para. 167 and
Report on Democracy and Human Rights in Venezuela, OEA/Ser.L/V/II. doc. 54, December 30, 2009, para. 265.