application for amparo, this did not constitute an effective judicial remedy that allowed him
to argue possible acts that violated fundamental rights other than due process before a
competent judge or court.
54.
IV. CONCLUSIONS
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
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.