54.
As I have indicated in the preceding paragraphs, I consider that the case of Judge
Cordero Bernal could have been addressed from other perspectives, both with regard to
judicial independence and to the principle of legality, as well as with regard to due process
and judicial protection. The judgment should have declared the violation of Articles 8, 9, 23
and 25, in relation to Articles 1 and 2 of the Pact of San José and established the corresponding
measures of reparation, rather than closing the case.
55.
I consider that the IACtHR could have reaffirmed its case law on judicial independence
and made a more thorough analysis of the level of reasoning required in an administrative
disciplinary proceeding when the disciplinary body applies the most severe sanction to a judge
based on open and indeterminate disciplinary offenses, because “the requirement of including
a statement of reasons is even greater than in other disciplinary proceedings.”47 It should not
be overlooked that, several years later, Mr. Cordero Bernal was acquitted of the offenses with
which he had been charged, which were the same facts that were the grounds for the
disciplinary proceeding in which the sanction of dismissal was applied.
56.
In an administrative disciplinary proceeding against judges in which the sanction
based on indeterminate concepts is applied, a statement of reasons does not suffice with the
mere description of the facts and an indication of the norm applied; rather, prior objective
standards must exist that the disciplinary body uses to be able to conclude objectively that
the conduct falls within the norm. Also, as in this case, if a norm contains more than one open
element, the statement of reasons must refer to this in detail. This was even more important
in the instant case, because at the time of the facts there was no effective judicial remedy
that allowed an analysis of the fundamental rights at stake – but merely with regard to due
process – a matter that years later was permitted through domestic case law, as the State
indicated in the information provided to the Inter-American Court.
57.
Under the constitutional and democratic rule of law great care must be taken to
ensure that the disciplinary measures that are adopted strictly respect the basic rights of the
individual and follow a meticulous verification of the effective existence of the unlawful
conduct.48 This is particularly relevant when judicial independence is at issue, as the
guarantees of the tenure and irremovability of a judge are involved. The principle of legality
governs the actions of the organs of the State in their respective areas of competence,
particularly when it is necessary to exercise punitive powers, where the State imposes, with
full force, one of the most severe sanctions against the judiciary: dismissal.49
Eduardo Ferrer Mac-Gregor Poisot
Judge
Pablo Saavedra Alessandri
Secretary
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. 267.
47
Cf. Case of Baena Ricardo et al. v. Panama. Merits, reparations and costs. Judgment of February 2, 2001.
Series C No. 72, para. 106.
48
49
Cf. Mutatis mutandis, idem.
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