91.
Regarding the alleged violation of the right to appeal the ruling before a higher court,
the Court refers to the analysis of the arguments relating to the right to judicial protection, in
which it will examine the application for amparo filed by Mr. Cordero Bernal, as it has in
previous decisions on this same matter.98
B.2 The principle of the application of the most favorable law
92.
The Commission and the representatives argued that Article 9 of the Convention
had also been violated because, at the time of the facts, two laws existed that established
different legal consequences and the one that was less favorable to the interests of the
presumed victim was applied. The Commission argued that the laws in force were the Organic
Law of the Judiciary (LOPJ) of June 2, 1993, which established the condition of suspension
prior to the application of the sanction of dismissal, and the Organic Law of the National
Council of the Judiciary (LOCNM) of December 5, 1994, that allowed the sanction of dismissal
to be applied as the first option. Mr. Cordero Bernal was appointed to the First Criminal Court
of the Superior Court of Huánuco on June 22, 1995; on July 11, 1995, he had presumably
committed the conduct that was categorized as a disciplinary offense and, on August 16,
1995, his dismissal was ordered.
93.
The Court recalls that Article 9 of the Convention refers to the principle of legality and
the principle of the application of the most favorable law. Regarding the latter, the article
indicates that “[a] heavier penalty shall not be imposed than the one that was applicable at
the time the criminal offense was committed” and that “[i]f subsequent to the commission of
the offense the law provides for the imposition of a lighter punishment, the guilty person shall
benefit therefrom.” The Court has understood that the most favorable law should be
interpreted as that which: (i) establishes a lighter punishment, or (ii) creates new grounds
for justification, for innocence, or for an impediment to the implementation of the punishment,
and that this did not constitute an exhaustive list.99 Even though the Court has not ruled
expressly on the application of the principle of the most favorable criminal law to disciplinary
matters, in its case law on Article 9 of the Convention it has made no distinctions between
the scope of the guarantees it contains; rather, it has indicated repeatedly that this article,
without any distinction between its contents, is applicable with regard to administrative
sanctions.100
94.
In the instant case, although the Commission argued that the LOPJ was in force at the
time of the facts and, if it had been applied, would have allowed Mr. Cordero Bernal to be
penalized with suspension, the Court finds that the LOCNM is a subsequent law that ordered
the abrogation of any conflicting provisions.101 Therefore, the LOPJ remained in force in
relation to the dismissal of paralegals, while it was abrogated in relation to the dismissal of
judges, a matter that was then regulated by the LOCNM. This conclusions was supported by
the expert witness proposed by the State who underlined that “based on criteria of hierarchy,
temporality and specialty, it should be understood that article 31 of the LOCNM is the only
Cf. Case of López Lone et al. v. Honduras, supra, paras. 246 to 250, and Case of Rico v. Argentina.
Preliminary objection and merits. Judgment of September 2, 2019. Series C No. 383, para. 84.
98
Cf. Mutatis mutandis, Case of Ricardo Canese v. Paraguay. Merits, reparations and costs. Judgment of
August 31, 2004. Series C No. 111, para. 179.
99
For example, in the case of López Lone v. Honduras the Court indicated: “Article 9 of the American
Convention, which establishes the principle of legality, is applicable to matters pertaining to administrative sanctions.”
Case of López Lone et al. v. Honduras, supra, para. 257.
100
“Tenth. Abrogate Legislative Decree No. 25, article 226 of the Organic Law of the Judiciary and all the legal
provisions that contradict this law.” Final and Transitory Provisions. Organic Law of the National Council of the
Judiciary, November 25, 1994 (evidence file, folio 1646).
101
24