dignity of the office, devaluing it […] in the opinion of the public and should therefore be dismissed
from his post que […]32 [underlining added].
34.
The OCMA decision of August 3, 1995, indicates:
CONCLUSION. […] Héctor Fidel Cordero Bernal, the judge appointed to the First Criminal Court of
Huánuco, for the sole purpose of benefiting the defendants in the criminal proceedings he was hearing
with unconditional release, an act that was further exacerbated because it concerned a crime of
international illicit drug trafficking: That, this type of conduct, which borders on wilful intent, seriously
undermines the gravitas of the Judiciary, the image of our institution and the dignity of its members;
therefore, a disciplinary sanction must be imposed that is proportionate to the gravity of his acts: That,
there should be awareness that the Judiciary is not an institution in which rights may be acquired
through corrupt officials and employees; rather, the Judiciary is a power of the State, to which the life,
honor and patrimony of the individual are entrusted, trust that must be reaffirmed for the citizenry,
always rendering to each individual what legally corresponds to him, and any conduct that contravenes
this must be sanctioned33 [underlining added].
35.
Lastly, the CNM’s decision of August 14, 1996:
TENTH: That, consequently, the National Council of the Judiciary, having granted the judge subject to
this proceeding the guarantee of the exercise of his right to defend himself, received his statement and
the presentation of documents and the pertinent criminal case file, in other words, respecting the
principles of due process, reaches the conclusion that the conduct of the defendant judge warrants a
disciplinary sanction because no reasonable substantiation whatsoever can be found in the decision to
prematurely grant unconditional release and such conduct is defined as an offense and is serious and,
therefore, falls within the premise of Article [31.2 of the LOC]; in other words, a serious act that,
without being a crime, compromises the dignity of the office and devalues it in the opinion of the
public34 [underlining added].
36.
Even though both the Investigation Report and the decision of the OCMA, “classify”
the action of Judge Cordero Bernal as serious, a matter referred to by the decision of the
CNM, none of the three refer in detail to the other two elements that are also present – and
indeterminate – in Article 31.2 of the LOC which refer to the conduct “compromises the dignity
of the office” and “devalues it in the opinion of the public.” To the contrary, the Investigation
Report reiterates, in general terms, that the dignity of the office had been compromised,
devaluing it “in the opinion of the public” without indicating how the dignity of the office was
compromised and, in particular, what is the scope of “public devaluation” in jurisdictional
actions. The CNM decision contains similar wording.
37.
Furthermore, the words of the CNM should be emphasized when it indicated that “the
conduct of the defendant judge […] is defined as an offense and is serious and, therefore,
falls within the premise of Article [31.2 of the LOC].” In this regard, I consider that the
majority opinion should have considered and analyzed whether there were sufficient prior
objective criteria/elements in the decision of the CNM that were applied to the case to consider
that the decision was not adopted arbitrarily. Thus, the indication that the “conduct falls
within” the terms of the article cannot be considered sufficient grounds if it is only indicated
that “it is serious” without specifying other prior elements concerning the assessment, context
and purpose of the norm.
38.
Meanwhile, even though the Investigation Report and the OCMA decision include a
detailed description of the facts, both of them suffer from the use of vague concepts without
explaining their scope. For example, the Investigation Report states that the Judge’s
irregularities “compromise the respectability of the Judiciary” and the OCMA decision indicates
32
Cf. The Judiciary’s Office for Control of Judges, Report of July 21, 1995, Annex 8 (folio 1103).
33
Cf. The Judiciary’s Office for Control of Judges, Report of August 3, 1995, Annex 6 (folios 1064 to 1065).
34
Cf. National Council of the Judiciary, Decision No. 008-96-PCNM of August 14, 1996, Annex 7 (folio 1074).
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