Yenina Esther Martínez Esquivia v. Colombia

Wrongful Removal of a Colombian Prosecutor

International standards protecting the independence of prosecutors, especially in the context of their removal from office, are necessary safeguards to ensuring the independence of the judiciary and the rule of law. This petition before the Inter-American Commission pertains to the removal of Colombian delegate prosecutor Yenina Esther Martínez Esquivia in 2004 without cause after she ignored her superior’s orders to close an investigation into corruption by a public official before its completion. The official had granted a license for trash collection to a construction company without consulting Black communities in settlements where the construction of the sanitary landfill was planned, which was required by law. No reason was given by Martínez Esquivia’s superior for the order to close the investigation, but she was informed that in the past, prosecutors who did not comply with orders to close investigations had been transferred or dismissed. She was herself dismissed a day after receiving the information that she was to be  transferred to a remote prosecutor’s office situated on the island of Providencia. Martínez Esquivia’s attempts to challenge her removal through various legal remedies were all dismissed or rejected.

Background

On December 22, 2005, Martínez Esquivia lodged a petition to the Inter-American Commission on Human Rights claiming her dismissal had violated her fundamental rights. The Commission declared the case admissible in 2012 and well-founded in 2018, stating that Martínez Esquivia’s right to judicial guarantees and judicial protection were violated.

In 2019, the Inter-American Commission referred the case to Inter-American Court of Human Rights, stressing that the case involved issues of Inter-American public order. The court’s ruling would examine the question of whether guarantees of due process and legality when removing judges are applicable to prosecutors, in order to protect them from external pressures affecting their independence.

Open Society Justice Initiative Involvement

The Justice Initiative acted as co-counsel with the lawyers Ciro Colombara Lopez and Branislav Marelic Rokov from the network “Red Pro Bono de las Americas” for the filing of the complainant’s final submission to the Inter-American Court of Human Rights.

Arguments

The independence of prosecutors is key to the independence of the judiciary and of the rule of law. The UN and European bodies have reached a broad consensus about the need to guarantee the independence of prosecutors as a fundamental component of the administration of justice. Prosecutors must be sufficiently independent to make decisions objectively and without undue interference or pressure.

Security of tenure is a component of prosecutorial independence. Appointments for limited periods, with the possibility of re-appointment, could influence prosecutors to make decisions that would favor their re-appointment. Therefore, the status of prosecutors should be guaranteed by law at the highest possible level in a manner analogous to that of judges.

Decisions to remove prosecutors must be subject to appropriate safeguards. According to numerous international and European bodies, the ability to challenge decisions affecting the careers of prosecutors, such as appointment, transfer and dismissal through a fair trial should be guaranteed in the interest of protecting prosecutorial independence. This includes the right to have access to a court, the right to a fair hearing, the right to adversarial proceedings, and equality of arms.

In a May 2020 ruling on the case Kövesi v. Romania, in which Justice Initiative submitted an amicus brief, the European Court of Human Rights set the important precedent of affirming the principle of the application of the right to a fair trial to removal processes of prosecutors as a way to protect their independence and the independence of the judiciary. The Justice Initiative has brought this to the attention of the Inter-American Court.