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107. Once the factual framework the Court has considered as proven regarding the
restructuring of the Judicial Power and the condition of “provisional judge” of the
alleged victim has been indicated, it shall go on to analyze, pursuant with that stated
in paragraph 62 supra, if these reasons freed the State from reinstating her to her
position and paying her the salaries she did not perceive.
108. Regarding the restructuring of the Judicial Power, the Commission considered
that this fact “is not a justification to not order the reinstatement of Mrs. Reverón
Trujillo to her position or the payment of the salaries she did not perceive[.] In that
sense, the actions of the Political-Administrative Chamber of the TSJ did not take
into account that even within the restructuring process, certain minimum parameters
of stability are regulated in benefit of judicial independence and that they should
have been taken into account when deciding the reparation for the arbitrary
dismissal of Mrs. Reverón Trujillo”.
109. Regarding her provisional nature, the Commission stated “that in light of the
principle of judicial independence the States must guarantee that all people that
exercise a judicial function have reinforced guarantees of stability, understanding
that, except for the commission of grave disciplinary offenses, the stability in the
position shall be respected for the term or condition established in the appointment,
without distinction between the judges called ‘career judges’ and those that exercise
the judicial function in a temporary or provisional manner. That temporary or
provisional nature shall in any case be determined for a specific term or condition of
exercise of the judgeship, in order to guarantee that those judges will not be
removed from their positions based on the decisions adopted by them.”
110. The representatives argued that the restructuring of the Judicial Power was not
“a legal or legitimate reason to not have reinstated María Cristina Reverón Trujillo,
with all the consequences that implied […]. Even more so, if we take into account
that the State has removed and continues constantly removing provisional judges,
leaving many vacant positions that are then filled with discretional appointments of
the Judicial Commission.” Similarly, they indicated that lack of payment of the
salaries she did not perceive represents “an arbitrary decision, because the judicial
restructuring has nothing to do with the compensations due to the judge, and there
is no legitimate limitation whatsoever to deny them.”
111. In what refers to the provisional nature, the representatives stated that the
“unjustified and unreasonable distinction introduced by the State between provisional
judges without any stability and titular judges with stability, is clearly arbitrary and
whimsical. It is not reasonable nor legitimate that there be judges that maybe
removed discretionally, without any reason or procedure.”
112. The State indicated that the restructuring process, which implies calling to
tenders in order to obtain the titular nature for all the positions, “results especially
complex taking into account the number of courts existing throughout the country,
the new special jurisdictions created since the year 2000 and the need that all
tenders adjust to constitutional stipulations.” It added that the application of the
regulations regarding the restructuring caused a series of openings in several courts
throughout the country, as a consequence of the dismissal of their occupants.
According to the State, aware of its obligations established in the American
Convention that order it to adapt the stipulations of its domestic legislation in order
to guarantee and make effective the rights established in that instrument, as well as
given the constitutional obligation to guarantee the continuity of the administration
of justice and the right to access the justice system, proceeded to the temporary and
exceptional appointment of non-titular judges to cover the vacancies produced.