a guarantee for their independence;2 therefore, I considered that the analysis of the alleged
violation of those rights should have been made together.
6.
Regarding the principle of legality, when open or indeterminate disciplinary offenses
exist, such as those applied in this case to impose the sanction of dismissal, it requires prior
normative or jurisprudential criteria that is predictable so that the sanctioning bodies can
specify and provide content to the said open concepts, a situation that I consider did not occur
in this case. The CNM’s decision merely gave an account of the facts that originated the ruling
made by Judge Cordero Bernal, without it being possible to note an explanation of the
relationship between the facts and the law (which contained the indeterminate concepts) on
which the sanction was based, or that an analysis of proportionality had been made as to
whether the sanction of dismissal was the appropriate measure.
7.
The majority opinion also declared that neither due process nor judicial protection
contained Articles 8 and 25 of the Pact of San José had been violated. It should be clarified
that, under domestic law, the CNM’s decision was not subject to review by a court and the
only possible remedy was the application for amparo – and only for violations of due process
and not with regard to other fundamental rights, such as those alleged by Mr. Cordero Bernal
related to the guarantees of the tenure and irremovability of judges.
8.
Based on the preceding conclusions, I consider it necessary, pursuant to Article 66(2)
of the American Convention,3 to attach this dissenting opinion to the judgment in order to
provide a different reasoning to the majority opinion. To this end, I will set out some
considerations on the following elements: (i) the inter-American standard regarding the use
of open and indeterminate disciplinary offenses in judicial disciplinary proceedings (paras. 9
to 21); (ii) judicial independence and the principle of legality in the Cordero Bernal case
(paras. 22 to 44); (iii) due process and judicial protection in the instant case (paras. 45 to
53); and (iv) conclusions (paras. 54 to 57).
I. THE INTER-AMERICAN STANDARD REGARDING THE USE OF OPEN OR INDETERMINATE
DISCIPLINARY OFFENSES IN JUDICIAL DISCIPLINARY PROCEEDINGS
9.
I consider that the case of López Lone et al. v. Honduras, which the Inter-American
Court of Human Rights (hereinafter “the IACtHR” or “the Inter-American Court”) decided in
2015, is especially relevant. In that case, the Court established important standards with
regard to how the principle of legality should be approached in disciplinary proceedings
involving judges, in particular when open or indeterminate disciplinary offenses are applied.
10.
In the case of López Lone et al., the Inter-American Court addressed the State’s
international responsibility with regard to the principle of legality from two points of view: (a)
the sanctions imposed on the victims, and (b) punishable conducts in the disciplinary norms.4
11.
Regarding the first point, it considered that “the grounds for removing judges from
Cf. Mutatis mutandis, Case of Urrutia Laubreaux v. Chile. Preliminary objections, merits, reparations and
costs. Judgment of August 27, 2020. Series C No. 409, para. 131, and Bangalore Principles of judicial conduct.
Principles 1.1 to 1.6.
2
Article 66(2) of the American Convention establishes: “If the judgment does not represent in whole or in part
the unanimous opinion of the judges, any judge shall be entitled to have his dissenting or separate opinion attached to
the judgment.” Also see Articles 24(3) of the Statute, and 32(1)(a), 65(2) and 67(4) of the Rules of Procedure, both
of the IACtHR.
3
Cf. Case of López Lone et al. v. Honduras. Preliminary objection, merits, reparations and costs. Judgment
of October 5, 2015. Series C No. 302, para. 258.
4
2