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III.

POSITION OF THE PARTIES

A.

Position of the Petitioner

6.
The petitioner stated that he became a member of the Judiciary as an interim judge
[“provisional judge”] on November 9, 1993, and was initially assigned to the Special Court for Civil
Matters of the City of Tingo Maria, Department of Huanuco. He noted that on December 14, 1994 he
took office as Interim Judge of the 4 th Special Court for Criminal Matters of the City of Huanuco, of
the Department of Huanuco. He stated that in the course of a criminal case for drug trafficking, he
granted unconditional release on July 11, 1995, to two Colombian citizens, because he found that
the requirements set forth in Article 201 of the Criminal Code of Procedure had been fulfilled.1
7.
The petitioner claimed that, as a result of the above-cited decision, on August 11,
1995, the Judicial Oversight Office (OCMA) ordered him to cease duties and requested the Executive
Council of the Judiciary to institute a disciplinary proceeding for his removal from office. He noted
that said proceeding culminated in decision No. 008-96-PCNM of August 14, 1996, whereby the
National Council of the Judiciary (hereinafter “the CNM” as in its Spanish acronym) ordered his
dismissal. According to the submissions, the CNM found that in granting unconditional release to
persons about whom the evidence cast sufficient indicia of criminal responsibility, Mr. Cordero
Bernal “committed a serious act which, though not a CRIME, compromises the dignity of the office
and is unworthy in the public view.” It was noted that said grounds for disciplinary action are
provided for in Article 21.2 of Law 26.397 (Organic Law of the National Council of the Judiciary),
which was further repealed and supplanted by Law 26.933 of March 12, 1998.
8.
The petitioner emphasized that even though Article 21.2 of Law 26397 made it
possible to dismiss a judge, who commits a serious act that compromises the dignity of the office,
Article 210 of the Unified Amended Text of the Organic Law of the Judiciary, [which was] in effect
during that time period, provided that “the serious act which, though not a crime and compromises
the dignity of the office and is unworthy in the public view, is subject to the disciplinary measure of
suspension from one to 60 days.” He added that Article 210 of the Organic Law of the Judiciary
provides that the removal of a judge from office is only possible when there has been a prior
disciplinary sanction, which according to his claim, did not occur in this case. He contended that
because the decision against him stands in contradiction to this provision of the Organic Law, the
CNM should have imposed the more lenient disciplinary measure on him.
9.
The petitioner argued that Resolution No. 008-96-PCNM disputes the criteria applied
by him as a judge, which was based on criminal procedural legislation. He claimed that said
questioning by the CNM violates the principles of judicial independence and impartiality, as well as
Article 212 of the Uniform Amended Text of the Organic Law of the Judiciary, which establishes that
“a difference of opinion and of criteria in deciding cases does not give rise to sanction.”

1

Said provision sets forth the following:

If at any stage of the proceedings it is fully proven that the defendant is not guilty, the Judge is required
to order either sua sponte or at the request of the defendant, his unconditional release and the order shall
be executed immediately and the respective case file should be submitted to the Correctional Tribunal
when other defendants must remain in custody. When the case is only against the person who is the
subject of the release, the main file shall be submitted.
In this instance, when the Tribunal upholds the decision, the [judge being] consulted shall order the case
to be dismissed. Should it strike down the decision, an order shall be issued to re-arrest the wrongly
released person and any punishments may be imposed or actions taken that may be appropriate, should
the release have been improper.

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