that it undermines “the image [of the Judiciary] and the dignity of its members.”
39.
Lastly, since it is the instance that decides and determines whether a sanction is
imposed, it was fundamental that the CNM indicate in detail the jurisprudential or interpretive
standards that allowed it to conclude that, when Mr. Cordero Bernal issued his ruling, the
results of that action were sufficiently predictable and that, as that organ indicated, the said
conduct “fell within” the norm. In addition, it was necessary that it indicate clearly how the
other two elements present in Article 31.2 of the LOC had been verified and not merely
transcribe the norm and its elements. The core issue is that the greater the discretionality of
the norm, the greater the importance of the logical, rational and interpretive statement of
reasons of the disciplinary body, both to ensure legal certainty and to eliminate any possible
question of the arbitrariness of the decision.
40.
On this basis, it was reasonable to understand that, in this case, the principle of legality
was violated in relation to judicial independence. On the one hand, because the norm applied
to Judge Cordero Bernal was too broad inasmuch as it contained three indeterminate
concepts. In addition, the considerations provided on three occasions should have been more
thorough as regard arguments and reasonings – in order to clarify the causal nexus between
the conduct (fact) and the norm (law) – and, thus, allow the context and purpose of each of
the indeterminate elements present in the norm to be understood. Finally, it is also true that,
for the sake of legal certainty, in the absence of normative developments that provided
objective criteria, it would have been desirable that those indeterminate elements had
previously been provided with content via interpretation or case law, in order to ensure a
sufficient reasoning when applying open disciplinary offenses.
41.
In the presence of disciplinary offenses that use indeterminate concepts and in the
absence of domestic provisions or grounds that limit the scope of the disciplinary offenses (for
example, by regulations), a sufficient statement of reasons acquires a stricter and more
rigorous character. It is not sufficient to describe the facts and the norm that is applied; rather
the statement of reasons must necessarily include arguments on what has been understood
or how the elements that make up the open disciplinary offense have been developed and
how the conduct fits in with how this offense has been understood.
42.
Added to the preceding considerations, it should not be overlooked that Mr. Cordero
Bernal, was acquitted of the offenses of “complicity” and “breach of trust” in the criminal
jurisdiction eight years later, based on the same facts that were grounds for the disciplinary
proceeding.
43.
It should also be emphasized that, in the judgment, the majority opinion considered
that the sanction imposed by the CNM “had not violated the principle of proportionality.”35 In
my opinion, neither of the two decisions issued in the case of Mr. Cordero Bernal adequately
reveal why the sanction of dismissal was the necessary measure. On this point, the
proportionality of the sanction is not weighed in the decisions imposing it on Judge Cordero
Bernal.
44.
Lastly, it is necessary to call attention to the reference made to the majority opinion
in the case of Casa Nina v. Peru.36 We should not lose sight of the fact that the considerations
made in the instant case are very different from the analysis made in that judgment, because
Cf. Case of Cordero Bernal v. Peru. Preliminary objection and merits. Judgment of February 16, 2021. Series
C No. 421, para. 88.
35
Cf. Case of Cordero Bernal v. Peru. Preliminary objection and merits. Judgment of February 16, 2021. Series
C No. 421, para. 81.
36
10