Restrictions to the judicial independence in Peru: Analysis of the case Cuya Lavy et al. vs. Peru from the Inter-american Court of Human Rights

Abstract

The Cuya Lavy et al. v. Peru Judgment (hereinafter the Cuya Lavy Judgment) rendered by the Inter-American Court of Human Rights (hereinafter the IACHR) represents the latest stage in the evolution of the Court’s jurisprudence regarding the procedure of periodic evaluation and ratification of judges and prosecutors in Peru. At the Inter-American level, the Cuya Lavy Judgment sets for the first time a clear precedent regarding the minimum standards that must be met by any kind of restrictions to the principle of judicial independence within the framework of the American Convention on Human Rights (hereinafter the American Convention); therefore, the standards established in this judgment are not only applicable to Peru, but also to any member state that seeks to restrict the principle of judicial independence to some extent in its domestic law. On the other hand, at the level of domestic law, the Cuya Lavy Judgment imposes on the Peruvian State, as a measure of non-repetition, the obligation to implement specific regulatory adjustments to ensure judicial independence; a measure that compels Peru not only to modify its legislation on the process of evaluation and periodic ratification of judges and prosecutors, but also that implies a modification of the constitutional norms that legitimize this procedure. Although the procedure for the periodic ratification of judges and prosecutors, as set out in the Peruvian Constitution has, mutatis mutandis, parallels in comparative constitutional law, it is a rather particular case with more than a hundert years of tradition in the Peruvian constitutional history. This article seeks to analyse to what extent the principle of judicial independence is compatible with the procedure of periodic ratification of judges and prosecutors within the framework of the Peruvian legal system and the Inter-American human rights system. To this end, the arguments put forward by the Inter-American Court of Human Rights in the Cuya Lavy et al. v. Peru Judgment will be considered and subjected to a descriptive-valuative analysis in the context of Peruvian domestic law.

Summary: I. INTRODUCTION. II. JUDICIAL INDEPENDENCE AND ITS RESTRICTIONS IN PERU. II.1. The dual dimension of judicial inde­pendence. II.2. The institution of ratification as a restriction to judicial independence in Peru. II.2.1. Definition of ratification in accordance with the Peruvian Constitution. II.2.2. Ratification and judicial independence. III. THE JUDGMENT IN THE CASE OF CUYA LAVY ET AL. VS. PERU AND ITS IMPLICATIONS FOR THE EVALUATION AND RA­TIFICATION PROCEDURE IN PERU. III.1. Description of the facts of the case. III.2. Relevant issues in the judgment. III.2.1. The question of the incompatibility of judicial independence and the ratification pro­cedure in Peru. III.2.2. The question of the irremovability of judges and prosecutors. III.2.3. The question of the materially disciplinary nature of the ratification procedure. III.2.4. The question of whether the right to a proper statement of reasons for ratification decisions is affected. III.2.5. The question of the effect on the principle of legality of Article 9 of the American Convention. III.2.6. The question of the violation of the right to honour and dignity. III.2.7. The question of the effect on the procedural guarantees of the persons concerned in the ratification procedure. III.2.8. The question of the impact on political rights. III.2.9. The possibility of appealing against decisions not to ratify. III.2.10. The possibility of re-entry into the judicial and prosecutorial career. III.2.11. Amendments to domestic law and the obligation to exercise ex officio control of conventio­nality. IV. CONCLUSIONS.