First: That the purpose of this action is to annul the Administrative Resolution issued by the Supreme
Court of Justice, of October 12, 1983, declaring unfounded the motion for review stemming from the
administrative proceeding in which the complainant was not ratified in the position of clerk of the labor
court; Second: That, as appears at folios 29 and 30 of the administrative record, the moving party has
not been ratified in her position for not having fully performed her functions, incurring in irregularity in
the processing of the case files, among others, which in the view of the Evaluating Commission merited
her separation from the position; Third: That, from those records, one notes that the moving party has
made use of all the means of defense and for bringing challenges afforded by the law; Fourth: That the
claim of the moving party to undercut the conclusions and consequences of the resolution that is the
subject of the amparo motion should be debated in a more suitable forum in which the evidence
necessary is called for and considered … accordingly they found that THERE WAS NO NULLITY.30
42.
The Commission takes note that one judge cast a dissenting opinion in that decision, indicating that a
decision should be made de novo based on the record of ratifications, for the purpose of determining whether
there was a violation of due process during the ratification proceeding in the case of Ms. Moya Solís.31
IV.
CONCLUSIONS OF LAW
A.
General considerations on the guarantees applicable to sanction-imposing administrative
proceedings
43.
The Commission recalls that both organs of the inter-American human rights system have indicated that
the guarantees established at Article 8 of the American Convention are not limited to criminal proceedings, but
also apply to other types of proceedings. 32 Specifically, in the case of proceedings that may result in the
imposition of sanctions, both organs have indicated that the guarantees established at Article 8(2) of the
American Convention apply by analogy.33 In addition, the principle of legality is applicable to those disciplinary
proceedings that are “an expression of the State’s punitive power” since they imply an impairment or alteration
of the rights of persons as the result of some wrongful conduct.34
44.
In keeping with the foregoing, to determine which are the guarantees that the State was obligated to
grant in the specific case one must make reference to the nature of the proceeding in question.
45.
In the instant case the alleged victim was separated from her position as Clerk of Court with the 10th
Labor and Labor Communities Court as a result of the ratification procedure enshrined in Peru’s domestic
legislation, which established that mechanism and applied it to clerks of court every three years. In view of the
nature and effects of the proceeding, and taking into account that the essential purpose of disciplinary oversight
is to evaluate the conduct, suitability, and performance of a public servant, the Commission is of the view that
it was a sanction-imposing proceeding and, therefore, the applicable guarantees include, by way of analogy,
Annex 26. Copy of the decision of October 29, 1998 of the Chamber of Constitutional and Social Law of the Supreme Court of Justice, in
response to the motion for nullity of April 8, 1998 filed by Ms. Moya Solís. Annex 23 to petitioner’s brief of March 21, 2000.
31 Annex 27. Dissenting vote of Judge Castillo La Rosa Sánchez in relation to the decision of the Chamber of Constitutional and Social Rights
of the Supreme Court of Justice in response to the motion for nullity filed by Ms. Moya Solís. Annex 24 to petitioner’s brief of March 21,
2000.
32 IACHR, Report No. 65/11, Case 12,600, Merits, Hugo Quintana Coello et al. “Justices of the Supreme Court,” Ecuador, March 31, 2011,
para. 102; I/A Court HR. Case of Baena Ricardo et al. v. Panama. Merits, Reparations and Costs. Judgment of February 2, 2001. Serie C No.
72, paras. 126-127; Case of the Constitutional Court v. Peru. Merits, Reparations and Costs. Judgment of January 31, 2001. Series C No. 71,
paras. 69-70; and Case of López Mendoza v. Venezuela. Merits, Reparations and Costs. September 1, 2011 Series C No. 233, para. 111.
33 IACHR. Access to Justice as a Guarantee of Economic, Social, and Cultural Rights. A Review of the Standards Adopted by the InterAmerican System of Human Rights. OEA/Ser.L/V/II.129. September 7, 2007, paras. 98-123; and Case No. 12,828, Report 112/12, Marcel
Granier et al., Venezuela, Merits, November 9, 2012, para. 188; I/A Court HR. Case of Baena Ricardo et al. v. Panama. Merits, Reparations
and Costs. Judgment of February 2, 2001. Series C No. 72, paras. 126-127.
34 IACHR, Report No. 99/11, Case 12,597, Merits, Miguel Camba Campos et al. “Case of the Constitutional Tribunal,” Ecuador, July 22, 2011,
para. 94; I/A Court HR, Case of López Lone et al. v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of October
5, 2015. Series C No. 302, para. 257; and Case of Maldonado Ordóñez v. Guatemala. Preliminary Objection, Merits, Reparations and Costs.
Judgment of May 3, 2016. Series C No. 311, para. 89. I/A Court HR. Case of Baena Ricardo et al. v. Panama. Merits, Reparations and Costs.
Judgment of February 2, 2001. Series C No. 72, paras. 106 and 108.
30