indicates that:
75. This Court has established that the separation from office of provisional judge should be for
reasons established by law, whether these are: (i) the occurrence of the resolutive condition to which
the appointment or designation was subject, or the expiry of a predetermined period owing to the
holding and conclusion of a public competition, based on which the permanent replacement of the
provisional judge was appointed or designated, or (ii) serious disciplinary offenses or proven
incompetence.17
23.
However, the reference in the judgment to the report of the Special Rapporteur on the
independence of judges and lawyers, Gabriela Knaul, should not be forgotten. In it, the
Special Rapporteur indicated that “although judges may be subject to disciplinary
proceedings for conducts that bring judicial office into disrepute or that violate judicial ethics,
disciplinary offenses relating in general to “threat or harm to the correct administration of
justice, […] risk undermining the independence of the judiciary.”18 In addition, the same
Special Rapporteur has indicated that although compromising the dignity of the office may
be a sanctionable conduct, even leading to dismissal, the disciplinary offense cannot be
indeterminate. Accordingly, “the law must give detailed guidance on the infractions by judges
triggering disciplinary measures, including the gravity of the infraction which determines the
kind of disciplinary measure to be applied in the case at hand.” 19
24.
That said, in this specific case, the sanction that was applied to Mr. Cordero Bernal was
established in article 31.2 of the Organic Law of the National Council of the Judiciary
(hereinafter “article 31.2 of the LOC”) of November 25, 1994, which indicated that the
sanction of dismissal was in order for “[p]erpetrating a serious act that, without being a
crime, compromises the dignity of the office and devalues it in the opinion of the
public” [bold added].
25.
On reading the said provision, it is clear that it is imprecise, not only as regards what “a
serious act” could mean or “conducts that could be classified as serious,” but also what “the
dignity of the office” and “devalue […] in the opinion of the public” could mean. Moreover,
the State did not indicate that it had developed objective legal or jurisprudential/interpretive
criteria to correct the imprecision of those expressions, whose particularly open wording
entailed risks for the independence of the judiciary.
26.
It should not be overlooked that both the IACtHR itself and the Special Rapporteur on the
independence of judges and lawyers have insisted on the fact that judges can only be
removed from their posts for conducts defined precisely by law.20 In this regard, the Special
C No. 421, para. 72.
Cf. Case of Cordero Bernal v. Peru. Preliminary objection and merits. Judgment of February 16, 2021. Series
C No. 421, para. 75.
17
Cf. Case of Cordero Bernal v. Peru. Preliminary objection and merits. Judgment of February 16, 2021. Series
C No. 421, para. 76.
18
19
Human Rights Council. Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul. Mission to El
Salvador. UN Doc. A/HRC/23/43/Add.1, para. 76. Available at: https://undocs.org/A/HRC/23/43/Add.1. Similarly, the Consultative Council of
European Judges in its Opinion No. 1 (2001) on Standards concerning the independence of the Judiciary and the irremovability of judges, indicated
that “it would be useful to prepare standards defining not just the conduct which may lead to removal from office, but also all conduct which
may lead to any disciplinary steps or change of status, including for example a move to a different court or area,” para. 60. Available at:
https://rm.coe.int/1680747830
In this regard, the Special Rapporteur in the independence of judges and lawyers has indicated: “the law
must give detailed guidance on the infractions by judges triggering disciplinary measures, including the gravity of
the infraction which determines the kind of disciplinary measure to be applied in the case at hand.” Human Rights
Council. Report of the Special Rapporteur in the independence of judges and lawyers, Leandro Despouy. Doc. UN.
A/HRC/11/41, para. 57. Available at: https://undocs.org/A/HRC/11/41. Also, on this matter, the judgment in the
case of López Lone v. Honduras indicates: “the Court reiterates that the guarantee of tenure for judges requires that
20