07 July 2021

Strasbourg and San José Close Ranks

Dialogue Between Courts on the Independence of Prosecutors (Part II)

At the end of 2020, for the first time in its more than 40 years of jurisprudential history, the Inter-American Court of Human Rights (IACtHR) declared the arbitrary dismissals of two public prosecutors to be unconventional. Not only judges but also prosecutors are increasingly subject to threats to their independence, both in Latin America and Europe, as well as in other regions. The most recent example is the arbitrary dismissal not only of the five judges of the Constitutional Chamber but also of the Attorney General in El Salvador on 1 May 2021.

This article not only addresses the question of whether the same judicial guarantees apply to public prosecutors and attorneys as to judges (on restrictions and illegitimate dismissals of judges see Part I of this article). It also looks at how the Inter-American Court sought inspiration from the precedents of the European Court of Human Rights (ECtHR).

Recent developments in San José

The facts of the cases decided by the IACtHR in October (Martínez Esquivia v. Colombia) and in November 2020 (Casa Nina v. Peru) were similar and testify to the recurrent practice of installing provisional judges and prosecutors in Latin America. The Colombian Martínez and the Peruvian Casa Nina were removed from their positions as provisional criminal prosecutors without a reasoned decision and without the provision of any resolutory condition. The respective legal actions they brought before the national courts were rejected.

In both cases, the Court argued that “the guarantee of stability and irremovability of judges, aimed at safeguarding their independence, is applicable to prosecutors due to the nature of the functions they perform”, regardless of the institutional design of the prosecutor’s office. The Court made an “equivalent application” of the protection mechanisms recognised for judges, who can be removed from office only in due process of law in cases of serious disciplinary misconduct or incompetence or if the predefined term of their office has expired.

The Court applied its jurisprudence on provisional judges (Reverón Trujillo, Apitz Barbera and Chocrón Chocrón v. Venezuela) to prosecutors. The judges clarified that provisional status does not amount to free removal and that provisional prosecutors must also benefit of a certain stability and permanence in office. Consequently, in both cases the Court found violations of Articles 8 and 25 of the American Convention on Human Rights (ACHR; right to fair trial and judicial protection) in combination with Article 23.1 c ACHR (right to access to and to remain in public service under general conditions of equality).

On the victim’s allegation and applying its jurisprudential line on the justiciability of economic, social, cultural and environmental rights (ESCAR), in the Casa Nina case, the IACHR Court also qualified the dismissal of the Peruvian prosecutor as a violation of his right to work (Art. 26 ACHR). Neither in its numerous precedents for arbitrary dismissals of judges nor in the Martínez case had the Court considered a violation of the right to work. Hence, clarification by the Inter-American judges on the applicability (cumulative or alternative) and the relationship between Articles 23.1 c, 23.2 and 26 ACHR in cases of dismissal of public officials not elected by popular vote is desirable (see the partially dissenting opinion of Judge Sierra Porto in the Casa Nina case).

The Strasbourg precedents

The ECtHR, in turn, has an illustrious list of precedents on the dismissal of prosecutors that have served as inspiration for the Inter-American Court.

Not only because Laura Kövesi was appointed the first European Chief Prosecutor, the ECtHR’s May 2020 judgment Kövesi v. Romania was a landmark case in the Court’s jurisprudence on prosecutorial dismissals. Having voiced public criticism against a controversial judicial reform that, in her opinion, slowed down the anti-corruption fight, in 2018 the Constitutional Court removed Kövesi from her position as Prosecutor General at the head of Romania’s Anti-Corruption Agency (DNA).

The ECtHR qualified this dismissal as a violation of Article 6 of the European Convention on Human Rights (ECHR, right to a fair trial) because Romania failed to ensure adequate legal protection against unlawful dismissals of high-ranking legal officers. In addition, it found a violation of Article 10 ECHR (freedom of expression). Applying the reasoning of the famous Baka case (see Part I of this article), the judges in Strasbourg prima facie found a causal link between the expression of Kövesi’s opinion and the termination of her mandate. According to them, Romanian and European society has a legitimate interest in being informed on matters of separation of powers and the functioning of the legal system, both of which are subject to scrutiny by the judiciary.

For all this, apart from supporting the “equivalent application” of judicial guarantees of judges to prosecutors making reference to various UN and Council of Europe instruments and pronouncements, in Martínez and Casa Nina, San José explicitly cited the ECtHR’s statement in the Kövesi case which holds that the “principle of prosecutorial independence […] is a key element for the maintenance of judicial independence”.

Already in 2008, in Kayasu v. Turkey, a precedent cited by the ECtHR in the Kövesi case, the ECtHR found a violation of Article 10 (1) to the detriment of the Turkish prosecutor Kayasu. In his private capacity he had filed a complaint with the Public Prosecutor’s Office of a court in Ankara against two former high-ranking military officers, accusing them of having been involved in a military coup. He was subsequently convicted in criminal and disciplinary proceedings. The ECtHR stated that a prosecutor, by virtue of his contribution to the proper functioning of the judiciary, is a guarantor of fundamental rights and the rule of law and thus to citizens’ confidence in it. Kayasu’s statements had revealed a dysfunction of the democratic system and, as a contribution in the public interest, benefit form special protection under Article 10 (2) of the ECHR.

Regardless of the fact that in some countries such as Germany or Haiti prosecutors’ offices are under the authority of the executive – a fact that triggered a discussion about their due independence in Germany – at the substantive level prosecutors perform important tasks in the administration of justice and in criminal investigation and enforcement. Therefore, from its earliest judgments, the ECtHR systematically applied the same principles of judicial independence to judges and prosecutors, a fact that was adopted by the IACtHR in Martínez and Casa Nina. This jurisprudence is not entirely convincing because a prosecutor who might have to follow orders from the executive, for example the Ministry of Justice, even if these orders are exceptional, does not enjoy the same independence as an autonomous prosecutor or a judge.

Dialogue of a different level

In the past, the IACtHR in almost all of its cases involving the dismissal of judges has cited its sister court’s cases, but mostly only in footnotes and without discussing their arguments in the body of the judgement. The fact that in Martínez and Casa Nina, apart from referring to several ECtHR cases in footnote 94, San José quotes a full paragraph of the Kövesi judgment in the body of the judgment, demonstrates an increasingly close jurisprudential dialogue on matters of judicial independence. Another decision of a landmark case on judicial independence, on whether the dismissal of the Paraguayan prosecutor Alejandro Nissen Pessolani violated his rights to due process and freedom of expression, is still pending before the IACHR. We curiously await the direction in which the Court will continue the exchange with the ECtHR in this judgment. In order to strengthen the high-level jurisprudential dialogue between Strasbourg and San José even more, it would be desirable that the references to the Strasbourg jurisprudence in the Nissen ruling will be even richer not only in form but also in terms of the substantive legal analysis.

Given that only recently the IACtHR decided its first cases on dismissals of prosecutors, the future will show whether Strasbourg will refer to these cases in future decisions. The ECtHR is not expected to draw on the San José jurisprudence regarding the right to access and remain in public service under general conditions of equality (Article 23 ACHR), as such a right does not exist in the ECHR. It is settled case law of the ECtHR that it has no jurisdiction to assess issues of access to public service. Nor does the ECHR contain a right to work, at least not directly. It is enshrined in the European Social Charter on which the ECtHR has no jurisdiction.

In a region like Latin America, where in some countries impunity rates of the crimes committed are higher than 90%, it is urgent that the Inter-American Court contributes to the strengthening of independent prosecutors’ offices. Also in some European countries, especially in Poland, prosecutors who open investigations that the political powers consider uncomfortable live with the constant threat of suffering the consequences. In such cases, regional protection of the judicial independence of these prosecutors is their last hope.

This article was first published in Spanish on the Blog Agenda Estado de Derecho.

SUGGESTED CITATION  Fuchs, Marie-Christine: Strasbourg and San José Close Ranks: Dialogue Between Courts on the Independence of Prosecutors (Part II), VerfBlog, 2021/7/07, https://verfassungsblog.de/strasbourg-and-san-jose-close-ranks-2/, DOI: 10.17176/20210708-020135-0.

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