disciplinary norms that require considering [indeterminate] concepts, it is essential to take into account
the effects that the conduct examined could have on the exercise of the judicial function, either
positively by the establishment of normative criteria for its application or by means of an
adequate interpretation and statement of reasons by the judges when applying them. To the
contrary, the scope of these disciplinary measures would be subject to the private or moral beliefs of
the judges (bold and italics added).
19.
Thus, what the case of López Lone et al., establishes is that: (i) the level of precision
called for in criminal laws is not required in disciplinary proceedings; (ii) open or indeterminate
disciplinary offenses are permitted; (iii) however, this requires the establishment of objective
criteria that guide the interpretation or content that should be given to such concepts in order
to evaluate the substantive legality; (iv) these criteria may be established by law or by
jurisprudential interpretation. Also, adding to what was indicated in the said case, the
objective criteria would need to be established beforehand – in other words, predictable15 –
so that the disciplinary body could have elements for substantiation and interpretation when
applying them and providing a statement of reasons. Even though the latter element was not
addressed in the case, due to the specific particularities of the matter, it is fundamental to
ensure that members of the judiciary have certainty vis-à-vis the potential application of open
or indeterminate disciplinary offenses.
20.
Nevertheless, in my opinion, the statement of reasons in disciplinary proceedings in
which the maximum sanctions are applied to members of the judiciary must include specific
elements in order to be considered adequate substantiation (such as, including the reasoning
behind the pre-existing jurisprudential or interpretive criteria). The IACtHR did not analyze
this matter on the occasions of the case of López Lone et al., because, as indicated “there
was no statement of reasons.”
21.
That the precision of a law of a punitive nature is or may be different – as has been
recognized by the Inter-American Court – from that required by the principle of legality in
criminal matters (a question related to rigor and clarity), does not automatically exempt the
State from the obligation to draw up prior objective criteria and to place a limit on the possible
arbitrary application of the said norms, either by law or by interpretation.
II.
JUDICIAL INDEPENDENCE AND THE PRINCIPLE OF LEGALITY IN THE CORDERO BERNAL
CASE
22.
As indicated in the judgment, the IACtHR has stipulated that judicial independence
gives rise to guarantees: (a) to tenure and irremovability from office; (b) to an adequate
process of appointment, and (c) to be protected from external pressures. Regarding the
guarantee of tenure and irremovability from office, the Court has considered that this, in turn,
entails: (i) that the separation of judges from office must be exclusively as a result of the
permitted causes, either by means of procedures that comply with judicial guarantees or
because the mandate has concluded; (ii) that judges may only be dismissed on serious
grounds of misconduct or incompetence, and (iii) that any procedure must be decided
pursuant to the established rules on judicial conduct and in accordance with fair procedures
In this regard, the consistent case law of the IACtHR in this regard has affirmed that the classification of an
act as unlawful and the establishment of its legal effects must pre-exist the conduct of the subject who is considered
the offender either in criminal matters or in administrative matters resulting in sanctions. To the contrary, the
individual would be unable to tailor his conduct to a legal order in force and certain that expresses social reproach.
and its consequences. See, in this regard: Case of Baena Ricardo et al. v. Panama. Merits, reparations and costs.
Judgment of February 2, 2001. Series C No. 72, para. 106; Norín Catrimán et al. (Leaders, members and activist of
the Mapuche Indigenous People) v. Chile. Merits, reparations and costs. Judgment of May 29, 2014. Series C No.
279, para. 161 and Case of Argüelles et al. v. Argentina. Preliminary objections, merits, reparations and costs.
Judgment of November 20, 2014. Series C No. 288, para. 207.
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