53
conduct and its distinctive elements, so as to distinguish that conduct from non-punishable behaviors.263
The Court has held that vague or ambiguous provisions that give broad discretionary powers to the
authorities are incompatible with the American Convention because they can be used as the basis for
potentially arbitrary acts.264
173. The greater the restriction on a human right, the more precise and clear the provisions
establishing that restriction must be.265 Thus, the limitations imposed under criminal law are subjected
to the strictest test of legality, and must therefore comply with the requirements established in Article 9
of the Convention,266 under which “[n]o one shall be convicted of any act or omission that did not
constitute a criminal offense, under the applicable law, at the time it was committed.” The same is true
with the restrictions imposed via administrative disciplinary proceedings, particularly when they can
lead to serious disciplinary measures such as dismissal. The Inter-American Court has written that Article
9 applies to such proceedings since, like criminal penalties, administrative disciplinary measures are an
expression of the State’s punitive authority and can seriously harm or alter a person’s rights or deprive
said person of his or her rights.267
174. The foregoing presupposes that the laws establishing administrative sanctions like
dismissal must be subjected to the strictest test for legality. Such norms have severe consequences and
restrict the exercise of rights; but because they represent an exception to the principle of judicial
stability, they can compromise the principles of judicial independence and autonomy. In the specific
case of disciplinary proceedings, the Commission has underscored the fact that there must be “clear
rules on the grounds and procedure for removing judges from office;”268 “[i]n addition to fueling doubts
about the independence of the judiciary,” the absence of such rules “can lead to arbitrary abuses of
power, with direct repercussions for the rights of due process and of freedom from ex post facto
laws.”269
175. Given the importance of the principle of freedom from ex post facto laws in proceedings
in which a judge can be removed from his or her post, international law has set certain requirements
that disciplinary proceedings must meet. The law must give detailed guidance on the infractions by
judges that trigger disciplinary measures, including the gravity of the infraction, which in turn
determines the kind of disciplinary measure to be applied in the case at hand.270 In Maestri v. Italy, the
263
Cf. I/A Court H.R., Case of Usón Ramírez v. Venezuela. Preliminary Objection, Merits, Reparations and Costs.
Judgment of November 20, 2009. Series C No. 207, paragraph 55, and Cf. Case of Baena Ricardo et al. v. Panama. Merits,
Reparations and Costs. Judgment of February 2, 2001. Series C No. 72, paragraphs 105-107.
264
See, IACHR, Report of the Office of the Special Rapporteur for Freedom of Expression 2009, OEA/Ser.L/V/II.Doc. 51,
December 30, 2009, Chapter III, paragraph 70.
265
Cf. I/A Court H.R. Case of Kimel v. Argentina. Judgment of May 2, 2008. Series C No. 177, paragraphs 59 et seq
266
Cf. I/A Court H.R. Case of Baena Ricardo et al. v. Panama. Merits, Reparations and Costs. Judgment of February 2,
2001. Series C No. 72, paragraphs 105-108.
267
Cf. I/A Court H.R. Case of Baena Ricardo et al. v. Panama. Merits, Reparations and Costs. Judgment of February 2,
2001. Series C No. 72, paragraphs 106 and 108.
268
IACHR, Case 12,600, Hugo Quintana Coello et al. (Supreme Court) with respect to Ecuador (Merits), August 2, 2011,
paragraph 95.
269
IACHR, Case 12,600, Hugo Quintana Coello et al. (Supreme Court) with respect to Ecuador (Merits), August 2, 2011,
paragraph 95.
270
United Nations. General Assembly. Human Rights Council. Report of the Special Rapporteur on the independence
of judges and lawyers, Leandro Despouy, A/HRC/11/41, March 24, 2009, paragraph 57. Also, the Universal Charter of the Judge