- 83 sanctioned and, above all, how those conduct would be classified or the possible consequences for
the [presumed victims].” They emphasized that several of the disciplinary grounds applied to the
presumed victims were not established by law, but by norms of a lower level, such as regulations
and administrative decisions. They also asserted that “in order to found the dismissals of the
victims, eight different legal instruments were applied, citing 55 to 59 articles, of which less than
half were in the Constitution or in a law, and also intermingling rights, obligations, procedural
matters, sanctions and faculties of the different bodies.” They argued that “ethical codes can be a
very valuable instruments to guide and encourage agents of justice to perform their tasks with the
highest quality and excellence, but not to sanction them.”
256. The State did not refer to specific elements of this aspect, but mentioned, in general, that “in
the spirit of the Convention, [the principle of legality] should be understood as the principle under
which legal norms of a general nature [will] be created pursuant to the procedures and by the
organs established in the Constitution of each State Party and, all the public authorities must adapt
their conduct strictly to the Constitution.” It added that “in a democratic society, the principle of
legality is bound inseparably to that of legitimacy, according to the international standard
recognized as the basis of the Convention itself relating to the effective exercise of representative
democracy, that translates into election by the people of the bodies that create laws, respect for the
participation of the citizenry, and attainment of the common good.” Thus, it concluded that “only
the law adopted by bodies that have been democratically elected and authorized by the
Constitution, and designed to achieve the common good, can restrict the enjoyment and exercise of
the rights and freedoms of the individual.”
B. Considerations of the Court
257. The Court has established that Article 9 of the American Convention, which establishes the
principle of legality, is applicable to matters pertaining to administrative sanctions.425 In this regard,
it should be recalled that, administrative sanctions, like criminal sanctions, are an expression of the
punitive powers of the State and, at times, they are of a similar nature to criminal sanctions
because both of them entail impairment, deprivation or alteration of human rights. Consequently, in
a democratic system, it is necessary to take special care to ensure that such measures are adopted
strictly respecting the basic rights of the individual and following a careful verification of the
effective existence of a wrongful conduct. Furthermore, in the interest of legal certainty, it is
essential that the norm establishing the sanction exists and is known or can be known, before the
act or omission occurs that violates it and that it is sought to sanction. Accordingly, the Court
considers that the principle of legality also applies to disciplinary matters, even though its scope
depends greatly on the matter regulated.426 The precision of a norm establishing a sanction of a
disciplinary nature may be different from that required by the principle of legality in a criminal
matter, owing to the nature of the disputes that each one is designed to resolve.
258. In this case, it is clear that the disciplinary proceedings were of a punitive nature; thus, the
guarantees under Article 9 of the Convention apply.427 Based on the arguments of the parties and of
the Commission, the Court will examine the principle of legality with regard to: (i) the sanctions
imposed on the presumed victims, and (ii) punishable conducts in the disciplinary norms of
Honduras.
425
Cf. Case of Baena Ricardo et al. v. Panama. Merits, reparations and costs, supra, para. 106, and Case of Vélez Loor v.
Panama. Preliminary objections, merits, reparations and costs. Judgment of November 23, 2010 Series C No. 218, para. 183.
426
427
Mutatis mutandis, Case of Fontevecchia and D’Amico v. Argentina, supra, para. 89.
The expert witnesses who testified before this Court all agree on this. Cf. Expert opinion provided by Perfecto Andrés
Ibáñez during the public hearing in this case; affidavit made by Param Cumaraswamy on January 29, 2013 (merits file, folios
247 to 249), and affidavit made by Leandro Despouy on January 8, 2015 (evidence file, folios 6717, 6718 and 6731).