necessary to protect the independence of this type of official, but
also his right to work.
17. This is a position that lacks certainty. The determination of a
specific term in the appointment resolution does not prevent
stability in office depending on the discretionality of the
appointing authority. The determination of a period of time, in
most cases months (three months, six months or even a year),
still leaves the renewal or termination of the employment
relationship to the discretion of the appointing authority and
cannot prevent the official from being exposed to external
pressures or having his independence affected due to the lack of
security about the renewal of the term.
18. I consider that we can truly speak of stability in office in the case
of provisional officials if their permanence is exclusively subject
to the holding of a competitive selection procedure or to the
commission of a disciplinary or criminal offense. It cannot be
argued that, based on precarious short-term contracts, job
stability is protected as a component of the right to work,
because the determination of a specific term does not ensure the
continuity in office or avoid discretionality in the termination
decision.
iv) The scope of the concept of control of conventionality in relation to the
obligation to amend provisions of domestic law and the concept of an
effective judicial remedy
19. In general, it could be said that the control of conventionality,
as a mechanism of the inter-American system of human rights,
consists in: (i) the obligation not to apply domestic laws that are
contrary to the Convention, and (ii) interpreting the Convention
and domestic law together to establish which would be the most
favorable to the protection of the human rights of those
concerned. The elements of this control have been extensively
developed in the Court’s case law and are consolidated on the
basis of its judicial practice and that of the domestic authorities.
20. In the instant case, the Court analyzed the control of
conventionality from two angles. On the one hand, it considered
that domestic law needed to be amended in relation to the
guarantee of irremovability of prosecutors in Peru; on the other
hand, it considered that the right to an effective judicial remedy
had been violated because the domestic authorities had not
applied the inter-American standard.
a. Article 2 of the Convention: obligation to amend provisions of
domestic law
21. First, it has to be pointed out that the Court considered that the
absence of a term or condition in both the appointment and the
removal of Mr. Casa Nina was justified under the provisions of
domestic law. Consequently, it criticized not only the authorities’
interpretation of domestic law, but also the failure to enact
norms leading to the effective observance of such guarantees.
Lastly, it ordered the State to make the necessary amendments
to its laws to adapt them to the criteria of the Convention.