proved that they have the qualifications and aptitude to exercise the office with the
guarantees of transparency imposed by public competition. However, this does not mean
that provisional and temporary judges should not have an appointment procedure because,
according to the United Nations Basic Principles on the Independence of the Judiciary:
“[a]ny method of judicial selection shall safeguard against judicial appointments for
improper motives.”
46.
In addition, the Inter-American Court stated that, in the same way in which the
State is obliged to guarantee an adequate appointment procedure for provisional judges, it
must guarantee them a certain stability in office. In this way, in the case of provisional
judges, the guarantee of stability translates into the requirement that they can enjoy all the
benefits of tenure until the resolutory condition that ends their mandate.
47.
The ICourtHR also indicated that the stability of provisional judges is closely linked
to the guarantee against external pressure, because if provisional judges do not have
certainty about their permanence for a specific time, they will be vulnerable to pressure
from different sectors, above all from those who have the power to decide on dismissals or
promotions in the Judiciary.62
48.
The Inter-American Court also stated that provisional appointments should be
exceptional in nature and not the rule, and that they should not be extended indefinitely.63
49.
It also indicated that any public authority, whether administrative, legislative or
judicial, whose decisions may affect the rights of the individual, is required to adopt these
decisions with full respect for the guarantees of due process of law. In addition, it reiterated
that, any organ of the State that exercises functions of a substantially jurisdictional nature,
is obliged to adopt decisions that abide by the guarantees of due process of law in the
terms of Article 8 of the American Convention.64
50.
Furthermore, the ICourtHR stipulated that the authority to annul the appointment of
judges based on “observations” must be minimally justified and regulated, at least as
regards the exact description of the facts that support these observations; also that the
respective motivation shall not be of a disciplinary or punitive nature, because, if it was a
disciplinary sanction, the requirement of motivation would be even greater, since
disciplinary control is designed to assess the conduct, aptness and performance of the
judge as a public official and, consequently, it would be necessary to analyze the
seriousness of the conduct and the proportionality of the sanction.65
51.
In the judgment that inspires this separate opinion, the Inter-American Court
considered its case law on judicial independence, 66 and especially on guarantees in
impeachment proceedings,67 based also on the relevant standards of the Human Rights
Committee and the United Nations Basic Principles on the Independence of the Judiciary,
the criteria of the European Court of Human Rights, and the recommendations of the
62
Ibidem, paras. 104 to 106.
63
Ibidem, para. 107.
64
Ibidem, para. 115.
65
Ibidem, para. 120.
66
Paras. 188 to 199 of the Judgment.
67
Paras. 165 to 169 of the Judgment.
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