Press Release

IACHR Brings Colombia Case before the IA Court

May 29, 2019

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Washington, DC — The Inter-American Commission on Human Rights (IACHR) filed an application with the Inter-American Court of Human Rights (IA Court) over case 12.870, Yenina Esther Martínez Esquivia, involving Colombia.

The case relates to a series of violations of due process during legal proceedings that culminated in the victim’s dismissal from her position as deputy prosecutor at the Cartagena Courts for Criminal Proceedings. For the first time ever, the IACHR decided that prosecutors should enjoy special employment stability as a way of guaranteeing the independence of their work. Consequently, the fact that the length of the victim’s appointment was not stipulated and that no conditions were associated with it made it incompatible with the Inter-American Convention on Human Rights.

Furthermore, the IACHR concluded that the decision to dismiss the victim was unfounded as it did not reveal the grounds on which it was reached in such a way as to allay suspicions and refute allegations that it was a reprisal for decisions she had made while in office. The IACHR also concluded that the manner in which the victim was removed from office entailed further violations of the duty to provide grounds for dismissal, the right to a defence, and the principle of legality—as this was not a formal disciplinary procedure it did not include the minimum guarantees required for a sanction. Furthermore, the IACHR concluded that the state violated the right to judicial protection because the victim was denied an effective remedy to challenge the decision to remove her from office, have her case reviewed by the state, or verify whether the sanction in question constituted a misuse of power, despite attempting to do so through various avenues.

The IACHR also found that the state violated the guarantee of a reasonable timeframe: the appeal that the victim lodged on the grounds of the Trade Union Rights Act was only solved more than four years after it was filed, despite the fact that the matter was not at all complex. Finally, the IACHR found that the state violated the victim’s political rights since she was dismissed from her position through a procedure which did not comply with the minimum required guarantees, which affected her right to remain in public office under conditions of equality.

In the Merits Report, the IACHR concluded that the state is responsible for the violation of the right to judicial guarantees, the principle of legality and non-retroactivity, and judicial protection.

The IACHR recommended that the state provide the victim with a similar position to the one she formerly held, with the same remuneration, social benefits, and a rank on par with the one she would have held today if she had not been dismissed. If the victim does not wish to follow this course of action or if there are objective reasons that prevent her from being reinstated, the state must pay appropriate compensation for this, independently of the compensation for material and moral damages that forms part of the IACHR’s second recommendation, namely that the state provide full compensation for the violations described in the report, including both moral and material damages. The IACHR also recommended that Colombia adopt any nonrepetition measures necessary to prevent a similar incident from occurring again in the future. In particular, the state must ensure that the rules of due process are applied during the removal or dismissal of prosecutors, regardless of whether these positions are provisional or not. Finally, the IACHR recommended that Colombia adopt the necessary measures to ensure that domestic regulations and practices follow clear criteria and include guarantees concerning the appointment and removal of prosecutors and the time they spend in office, in accordance with the criteria established in the report.

The IACHR filed the application with the IA Court on May 21, 2019, as it deemed that Colombia had not complied with the recommendations set out in the Merits Report.

This case would be the first opportunity for the Inter-American Court of Human Rights to rule on whether the enhanced guarantees for due process and legality that must be present when judges are removed from office must also apply to prosecutors, bearing in mind that the nature of their work means that the absence of sufficient guarantees may further the effect of outside pressures that compromise the independence of their work.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 128/19