21
constitution or law.76 Additionally, the Committee has expressed that “[t]he dismissal
of judges by the [E]xecutive [P]ower before the expiration of the term of office for
which they were appointed, without giving them a specific reason and without having
an effective judicial protection to appeal the dismissal, is not compatible with judicial
independence.77
78. This Tribunal has accepted these principles and has stated that the authority in
charge of the process for the dismissal of a judge shall be allowed to act
independently and impartially in the proceedings established for that effect and allow
the exercise of the right to a defense.78 This is so since the free removal of judges
foments an objective doubt in the observer regarding the effective possibility they
may have to decide specific controversies without fearing the retaliation.79
79. From all this it can be concluded that tenure is a guarantee of the judicial
independence that at the same time is made up by the following guarantees:
continuance in the position, an adequate promotions process, and no unjustified
dismissals or free removal. This means that if the State does not comply with one of
these guarantees, it affects the tenure and, therefore, it is not complying with its
obligation to guarantee judicial independence.
iii)
guarantee against external pressures
80. The Basic Principles state that the judges will decide the matters brought
before them “on the basis of facts and in accordance with the law, without any
restrictions, improper influences, inducements, pressures, threats or interferences,
direct or indirect, from any quarter or for any reason.” 80 Likewise, said principles
state that the judiciary “shall have jurisdiction over all issues of a judicial nature and
shall have exclusive authority to decide whether an issue submitted for its decision is
within its competence as defined by law” 81 and that “[t]here shall not be any
inappropriate or unwarranted interference with the judicial process.”82
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*
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81. As can be observed, judges have several guarantees that reinforce their
stability in their position in seeking to guarantee their independence and that of the
system, as well as the appearance of independence with regard to the parties and
society. As has been acknowledged in the past by this Tribunal, the guarantee of
tenure shall operate so as to allow the reinstatement to the condition of judge to
76
Cf. United Nations, Human Rights Committee, General Comment No. 32, Article 14, supra note
71, para. 20.
77
Cf. United Nations, Human Rights Committee, General Comment No. 32, Article 14, supra note 71,
para. 20.
78
Cf. Case of the Constitutional Court v. Peru, supra note 58, para. 74 and Case of Apitz Barbera et
al. (“First Court of Administrative Disputes”) v. Venezuela, supra note 58, para. 44.
79
Case of Apitz Barbera et al. (First Court of Administrative Disputes) v. Venezuela, supra note 58,
para. 44. See also Principles 2, 3, and 4 of the Basic Principles of the United Nations, supra note 65.
80
Cf. Principle 2 of the Basic Principles of the United Nations, supra note 65.
81
Cf. Principle 3 of the Basic Principles of the United Nations, supra note 65.
82
Cf. Principle 4 of the Basic Principles of the United Nations, supra note 65.