Convention is violated, as is the right to access to public service and tenure, under general conditions of
equality, established in Article 23(1)(c)….” 50
84.
The Commission considers that the standard indicated is also applicable to prosecutors,
in light of what is indicated in this report, i.e. that the reinforced guarantees of stability of judges are also
applicable to and should protect prosecutors to ensure independence in the performance of their duties.
85.
In the instant case it has been established that Ms. Martínez Esquivia was separated
from her position as provisional prosecutor in a procedure in which the minimal guarantees required
were not respected, in the terms described throughout this report. In those circumstances and consistent
with the criterion mentioned in the previous paragraph, the Commission considers that the State also
violated Article 23(1)(c) of the American Convention, in relation to Article 1(1) of the same instrument,
to the detriment of Yenina Esther Martínez Esquivia.
V.
CONCLUSIONS AND RECOMMENDATIONS
86.
The Commission concludes that the Colombian State is responsible for violating the
right to judicial guarantees, the freedom from ex post facto laws, and the right to judicial protection,
enshrined in Articles 8(1), 8(2)(b), 8(2)(c), 9, 23(1)(c), and 25(1) of the American Convention, in relation
to the obligations established at Articles 1(1) and 2 of the same instrument, to the detriment of Yenina
Martínez Esquivia.
87.
Based on the analysis and conclusions set forth in this report,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RECOMMENDS TO THE STATE OF
COLOMBIA,
1.
To reinstate the victim in a similar position to the one he served in, with the same
remuneration, social benefits and a comparable rank to the one he would be entitled to today had he not
been removed. In the event that the victim should not wish to be reinstated or there are objective reasons
preventing his reinstatement, the State shall pay compensation for this reason, which is independent from
reparations relating to the material or moral damages included in recommendation number two.
2.
To provide full reparation for the consequences of the violations declared in the instant
report, including both tangible and intangible damages.
3.
To adopt necessary measures of non-repetition to prevent similar events from taking
place in the future. In particular, ensure application of the rules of due process in the context of the
proceedings for the dismissal or removal of prosecutors, regardless of whether or not they are provisional.
4.
To adopt the necessary measures so that domestic law and relevant practice conform to
clear criteria and ensure guarantees in the appointment, tenure and removal of prosecutors, pursuant to
the criteria set forth in the instant report.
I/A Court HR. Case of López Lone et al. v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of October
5, 2015, Series C No. 302, para. 192.
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