To safeguard the independence of the judiciary and the rights to equality before the law and equal access to the profession, international standards clarify that judges should be appointed though an open process on the basis of prescribed criteria based on merit and integrity, and without discrimination. To ensure that the composition of the judiciary is essentially reflective of the population and to combat discrimination and ensure equality before the law, steps should be taken to ensure the appointment of qualified women and members of minority communities.
As regards appointment criteria, the UN Basic Principles on the Independence of the Judiciary stipulate that persons selected must be “individuals of integrity and ability with appropriate training of qualifications in law”.
The Statute of the Iberoamerican Judge specifies that the “process of selection and appointment” should take place through organs and processes predetermined in law that allow for the objective assessment and determination of the applicant’s professional knowledge, merits and suitability.
An appropriate method of appointment of judges is a prerequisite for the independence of the judiciary and is a means of ensuring equal access to the profession. On the procedure for judicial appointments, the UN Basic Principles on the Independence of the Judiciary underscore the fact that “[a]ny method of judicial selection shall safeguard against judicial appointments for improper motives”.
In relation to the appointment and promotion of judges the United Nations Human Rights Committee and the Special Rapporteur on the independence of judges and lawyers have repeatedly recommended the use of bodies that are independent from the executive, are plural and are composed mainly (if not solely) of judges and members of the legal profession; and that apply transparent procedures.
It is widely accepted that when judges have security of tenure in office they are less vulnerable to pressure from those who can influence or make decisions about the renewal of their terms of office. Accordingly, international standards safeguarding the independence of judges prescribe that judges’ tenure must be guaranteed until a mandatory retirement age or expiry of the term of office.
As a necessary corollary to the guarantee of security of tenure judges nonetheless remain accountable throughout their terms of office. As discussed further in subsection 4 below, international standards specify that during their term of office, judges may be removed only in exceptional, strictly limited and well-defined circumstances provided for by law, involving incapacity or behaviour that renders them unfit to carry out the duties of their office, and following a fair procedure.
Like judicial appointments, promotions within the judiciary must be based on objective factors, particularly ability, integrity and experience.
The Statute of the Iberoamerican Judge, also states that “[t]he guarantee of non-removal of the judge extends to transfers and promotions which require the full consent of the interested person” (while also recognizing the existence of exceptional transfers in function of the necessities of service).
The Constitution provides that the entry to the judicial career shall be through open public competitions and candidates should be selected on the basis of excellence and adequate qualifications.
The former Organic Law of the Judicial Career enacted in 1998 provided that the judicial career started from category ‘C’, as judge of Municipal Court, and moved upward to category ‘A’. The judicial categories as established by the OLJC were:
- Scale ‘A’: Judges for Higher Tribunals;
- Scale ‘B’: Judges for Courts of First Instance; and
- Scale ‘C’: Judges for Municipal Courts.
The requisites to be appointed as judge in the scale ‘C’ were:
- At least three years of professional experience as a lawyer;
- Having succeeded in the public completion with the higher qualification; and,
- Having successfully completed the courses organized by the former Judicial Council.
The Constitution guarantees security of judicial tenure, in that judges can only be removed following procedures expressly established in the law.
Under the Constitution, Justices of the Supreme Tribunal of Justice, the apex court, are appointed for a non-renewable term of 12 years. During their tenure on the Tribunal, they may be removed only on grounds of serious misconduct (previously qualified by the Citizen Power), by a qualified 2/3s majority of the members of the National Assembly following a hearing.
Additionally, the OLJC guaranteed security of tenure for judges, by specifying that they could only be removed on the basis of the grounds and following the procedure established in the OLJC.
In fact, however, the vast majority of judges in Venezuela are appointed on a temporary or provisional basis, without any guarantees regarding their tenure (also see sub-section 4, below). Only titular judges, who comprise approximately twenty per cent of the country’s judges, enjoy tenure.
In 2000, the Commission for the Functioning and Restructuring of the Judicial System (CFRJS) enacted the Norms for the Evaluation and Public Competitions for the Admission and Permanence in the Judiciary, replacing the provisions for open public competitions and evaluations established by the OLJC.
The Norms for Evaluation provide the requirements and procedures for conducting public tenders for judicial vacancies. Under these norms the judges that were serving in office for one year or more should receive performance evaluations in order to continue their career in the judiciary.
Contrary to these Norms for Evaluation, the Decree of Transitional Power established that all judicial positions should be open to public tenders. This was interpreted to mean that all judges then in office were automatically dismissed and forced to reapply for their position. In addition, the evaluation procedure was never carried out and the only public competitions for judicial posts were held in the period of 2000 to 2003, resulting in the appointment of only 200 judges (against a total of 1732 judicial posts open in that period).
In 2005, the Plenary of the STJ adopted the Norms of Evaluation and Open Public Competitions for the Entry into and Promotion within the Judicial Career, establishing the Special Programme for Regularization of Status. Under this programme, all judges with temporary or provisional status would have to undergo an evaluation procedure to become titular judges. However, in 2008 only 73 judges obtained tenure through the Special Programme.
This stands in contrast with the 1451 judges who were appointed to posts without security of tenure in the same year. In 2009, another 359 judges were appointed without an open public competition.
The practice of appointing provisional, temporary and other judges without organizing an open, public competition and without granting them security of tenure continued in 2013; 1134 judges were appointed on these bases.
As a result, approximately 80% of judges currently in office do not have guaranteed security of tenure and are at risk of being dismissed on a discretionary basis.