the measure and did not assess the merits of the matter; (ii) the decision to convict Scot Cochran was taken by a collegiate court, where LGBG was only one of three judges, and the vote was unanimous; thus, even without the participation of LGBG the result would have been the same – since the other two judges had not been challenged, and (iii) even though the possibility existed of challenging LGBG as a member of the collegiate court, neither Scot Cochran nor his representatives filed this challenge. 13 13. Bearing in mind these three elements used by the Court to establish the absence of State responsibility for the alleged violation of judicial impartiality, we will now set out the reasons why we believe that, in this specific case, the said international responsibility was verified. To this end, we will refer to each of the elements described in the Court’s majority decision. 14. First, we consider that the reason set out in paragraph 122 of the judgment is not correct when it finds that “although the participation in the trial court of a judge who has previously examined the case may have an impact on the guarantee of impartiality, it should be underscored that, in this case, this participation occurred at the investigation stage and not to order pre-trial detention; rather it was to decide the appeal against the precautionary measure.” To support this thesis, the Court cites Amrhein et al. v. Costa Rica in which it did not consider that the right to be tried by an impartial judge had been violated because the judge did not enter into the merits of the matter, but rather merely examined the elements required to order pre-trial detention. 14 Consequently, the majority decision concluded that “[t]hus, it cannot be considered that the assessment made by the appeals judge at this stage had been sufficient to influence a subsequent determination of responsibility and guilt.” 15 However, we believe that this argument is erroneous for at least two reasons. 15. First, it should be recalled that the standard cited by the majority in the case of Amrhein et al. v. Costa Rica, was re-examined recently in Tzompaxtle Tecpile et al. v. Mexico. 16 And, according to the latter decision, when examining pre-trial detention and its elements, specifically in relation to the substantive assumptions relating to the existence of the wrongful act and the participation of the person being processed, the Court indicated that this premise should be “understood taking into account that, in principle and in general, this decision [of the admissibility of pre-trial detention] should not have any effects in relation to the responsibility of the accused, because it should be taken by a different 17 judge or judicial authority to the one that eventually takes a decision on the merits.” 18 16. We believe that this criterion should not be interpreted alone, but rather it must necessarily be understood as a way of effectively implementing the right to be tried by an impartial judge within the framework of domestic law. Thus, it is not possible to provide adequate guarantees of impartiality and of the absence of uncertainty for the procedural subjects, unless it is ensured, at least, that the aforementioned decisions are decided by different judges. 13 Paragraph 121. 14 Cf. Paragraph 122. 15 Paragraph 122. It should be recalled that in Herrera Ulloa v. Costa Rica, the Court had already indicated that “the justices of the Third Chamber of the Supreme Court of Justice should have abstained from taking cognizance of the two cassation remedies filed to challenge the November 12, 1999, judgment because […] when deciding the remedy of cassation to challenge the May 29, 1998, acquittal the same justices examined the merits and ruled on not merely the form.” Cf. Paragraph 174. 16 17 Bold added. Case of Tzompaxtle Tecpile et al. v. Mexico. Preliminary objection, merits, reparations and costs. Judgment of November 7, 2022. Series C No. 470, para. 102. 18 3