52
194. Judge Luisa Estella Morales Lamuño, who had initially been removed from
office together with the other three judges filed a recourse for reconsideration of the
decision, and this was resolved when the CORJS decided “to set aside the disciplinary
sanction of removal from office” against her. The CORJS arrived at this conclusion
because it considered that the judge had complied with the requirements for special
retirement before the start of the disciplinary procedure.209
195. Accordingly, the Court observes that there was a difference in treatment
between the three judges who were removed from office and Judges Marrero and
Morales, since the dismissal sanction was never imposed on the former, and was
revoked in relation to the latter, based on the “binding legal opinion” of the Chamber
for Constitutional Matters.210 Consequently, the CORJS did not impose the sanction
corresponding to the disciplinary infringement in the case of the judges who complied
with the requirements to retire before they committed the error.
196.
The Court notes that the victims in this case did not comply with the
requirements of age and years of service to retire.211 In this regard, it might be
considered that the victims were not in a situation of equality with Judges Morales
and Marrero -who did comply with these requirements- that would justify a similar
treatment.
197. However, the conduct of the five judges fell within the factual assumption of
the norm established in the already cited Article 40, part 4, because they had agreed
unanimously to hand down the judgment that was declared to constitute an
inexcusable judicial error. The question raised therefore is whether compliance with
the requirements for retirement introduced a difference between two groups of
persons that should have been taken into consideration for the purposes of the
disciplinary provisions, i.e. to assess judges’ suitability for the exercise of public
office. The Court finds that retirement is a factor that is completely unrelated to
assessment of suitability for the exercise of public office, as well as to the
ascertainment, qualification, and imputation of the facts that caused the process of
destitution. The Court finds that the five judges in this case had an identical degree
of disciplinary responsibility, and the fact that some of them complied with the
requirements to retire did not alter in any sense such a finding.
198. Evidence of the fact that retirement is a factor that is external to the
disciplinary assessment is that it is possible to apply the sanction corresponding to a
disciplinary infringement and, at the same time, concede the right to retirement
corresponding to years of service. While the CORJS relied on judicial precedents that
allowed for replacement of removal actions for retirement measures in order not to
209
Cf. decision of December 11, 2003 issued by the CORJS, supra note 50.
210
The judgment in question declared admissible an application for amparo against a decision of the
CORJS because the latter incurred in “disregard […] of the right to retirement […] acquired a long time
before the start of the disciplinary administrative procedure.” Cf. judgment of February 8, 2002 issued by
the Chamber for Constitutional Matters of the STJ (Evidence file, Book VIII, Annex Ñ, p. 2745).
211
A decision of the Plenary Chamber of the STJ had established that it was possible to concede
special retirement to “those who have 20 years or more of service in the Public Administration with at
least 10 years in the Judiciary. The minimum age required shall be 50 years for women and 55 for men.”
Cf. decision issued by the Plenary Chamber of the STJ, published in Official Gazette No. 37.388 of
February 20, 2002, cited in the decision of the CORJS of December 11, 2003, supra nota 50, p. 1168. At
the time of the facts, Judges Apitz and Rocha both had 3 years and one month of service in the Judiciary,
and Judge Ruggeri had 3 years and eight months service in the Judiciary, and the three judges had
respectively, 6, 10 and 30 years service in the Public Administration. Cf. Executive Directorate of the
Judiciary, Analysis of the Calculation of Retirement of Mrs. Ruggeri of March 1, 2004, of Mr. Rocha of July
19, 2004, and of Mr. Apitz of July 19, 2004 (Evidence file, Book II, Appendix C.3, pp. 626 to 629).
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos