73. On the subject of discipline, the principle of legality requires that the law clearly specify the infractions that
could lead to the imposition of disciplinary measures, including the gravity of the infraction and the type of
disciplinary measure to be applied if applicable. The principle of legality not only requires the disciplinary
grounds to have a basis in domestic law, but also that the law establishing those grounds be accessible to the
people to whom it applies. It also must be sufficiently precise so as to make the circumstances and
consequences of actions to which disciplinary measures apply foreseeable.41
74. Both the Court and the Commission have found that the greater a restriction, the more precise must be the
provisions establishing it.42 With regard to judges, the IACHR has found that suspensions or dismissals should
only be for infractions that are objectively extremely serious. Thus, as the Council of Europe has recommended,
the disciplinary legal framework must provide for graduated sanctions based on the seriousness of the
infraction, which could include removing cases from a judge, assignment to other tasks, financial sanctions, and
suspension.43
75. In the same regard, the Court has found that a legal structure that provides for broad sanctions affects the
predictability of the sanction because it allows for a judge to be dismissed on grounds that are open, giving
excessive discretion to the body in charge of applying the sanction.44 The Court has indicated that a certain
degree of indeterminacy does not, per se, generate a violation of the Convention—that is, the fact that a law
grants some degree of discretion is not incompatible with the degree of foreseeability that a law must provide,
as long as the scope of the discretion and the way in which it must be exercised are made sufficiently clear so
as to provide adequate protection in order to avoid arbitrary interference.45
76. In addition, the Court has indicated that, pursuant to Article 9 of the Convention, the State is prohibited
from exercising its punitive power by retroactively applying criminal laws that increase punishments,
establishing aggravating factors, or establishing aggravated forms of a offense.46 Along these lines, the Court
has also established that the same provision underpins the principle of the retroactivity of the most favorable
criminal law, on finding that, “If subsequent to the commission of the offense the law provides for the
imposition of a lighter punishment, the guilty person shall benefit therefrom.”47 The Court emphasized that this
component of Article 9 of the Convention is also applicable to administrative sanctions.48
77. Regarding the scope and content of the favorability set forth in that provision, the Inter-American Court
has found that:
(...) both the law establishing a lighter punishment for offenses, and the one encompassing
norms such as those that decriminalize a behavior which was previously considered an offense,
or create a new motive for justification or innocence, or an impediment to the effectiveness of
a penalty, should be interpreted as the most favorable penal norm. The foregoing is not a closed
list of cases that merit the application of the principle of the retroactivity of the most favorable
penal norm. It is worth emphasizing that the principle of retroactivity is applicable to laws
enacted before the judgment was delivered and during its execution, because the Convention
does not establish a limit in this respect.49 (...)
IACHR, Guarantees for the Independence of Justice Operators. Towards strengthening access to justice and the rule of law in the
Americas, OEA/ser.L/V/II.Doc.44, December 5, 2013, para. 208.
42 Inter-American Court, Case of Kimel v. Argentina. Judgment of May 2, 2008. Series C No. 177, para. 59 and following.
43 IACHR, Guarantees for the Independence of Justice Operators. Towards strengthening access to justice and the rule of law in the
Americas, OEA/ser.L/V/II.Doc.44, December 5, 2013, para. 211.
44 Inter-American Court, Case of López Lone et al. v. Honduras. Preliminary Objections, Merits, Reparations and Costs. Judgment of October
5, 2015. Series C No. 302, para. 264.
45Case of López Mendoza v. Venezuela. Merits, Reparations, and Costs. Judgment of September 1, 2011, Series C No. 233, para. 202.
46 Inter-American Court. Case of Ricardo Canese v. Paraguay. Merits, Reparations, and Costs. Judgment dated August 31, 2004. Series C No.
111. Para. 175.
47 Inter-American Court. Case of Ricardo Canese v. Paraguay. Merits, Reparations, and Costs. Judgment dated August 31, 2004. Series C No.
111. Para. 178.
48 Inter-American Court. Case of Ricardo Canese v. Paraguay. Merits, Reparations, and Costs. Judgment dated August 31, 2004. Series C No.
111. Para. 176.
49 Inter-American Court. Case of Ricardo Canese v. Paraguay. Merits, Reparations, and Costs. Judgment dated August 31, 2004. Series C No.
111. Para. 179.
41
14