Justice operators implies that dismissal is due to fairly serious conducts, while the other sanctions may be
used in the case of negligence or incapacity.98
118.
In the present case, the Commission notes first of all that The Argentine State expressly
indicated to the Commission that the Impeachment Jury, apart from being a political body, uses "political
discretion" criteria when adopting decisions on whether or not a judge should remain in the judiciary. That
assertion by the State is a sign that the control that the Impeachment Jury exercises is, at least in part,
political, which is problematic where judges are concerned. This situation is even more problematic when, as
the analysis below discloses, the grounds for disciplinary measures to be applied by a political body
empowered to use political discretion in adopting decisions are considerably vague. Therefore, the
supposedly legal component of the proceeding is based on criteria that certainly afford the Jury a wide
margin of discretion.
119.
In relation to the foregoing, the Commission notes that the grounds on which the alleged
victim was charged and later dismissed were general in nature, and in some it was not possible clearly to
establish specific conduct that constituted faults. Such was the case of grounds (e) and (f) regarding
"incompetence" and "negligence," as well as failure to perform official duties “inherent to the post.” The
Commission considers that the wording of those grounds leaves the punishing authority an excessive margin
of discretion in determining what specific conduct matches such vague wording, leaving room for subjective
appreciations. Thus, for example, the Commission finds that Mr. Rico could not have foreseen that "refusing to
swear an oath of loyalty to the Buenos Aires flag” constituted a "reiterated failure to perform the official
duties inherent to the post." The margin of discretion arising from the wording of the grounds is especially
problematic in this case, since, as the State recognized, the Impeachment Jury bases its decisions on reasons
of political expediency. Thus, on one hand, at least two of the three grounds applied were excessively broad in
their wording and, on the other, the punishing authority was empowered to use its "political discretion." The
Commission considers that this situation violated the principle of legality, which, as noted, should be
strengthened in punitive proceedings against judges.
120.
Second, the Commission finds that the reasoning provided for the decisions did nothing to
correct the above-referenced lack of precision. As was mentioned in the section on proven facts, the
reasoning for decisions adopted by the Impeachment Jury follows a particular formula, in that each of the
nine members of the jury provides a separate answer to questions as to whether or not the act was proven
and if it was consistent with the grounds invoked. In that section of the decision each member of the jury
offered personal assessments on both aspects; that is, not only on the facts, but also how they were consistent
with the aforesaid grounds.
121.
The Commission notes that some members of the Impeachment Jury even provided
“elaborations," “additions," or "dissents" with respect to the facts and the assessment of evidence. Thus, for
example, in the response to question 12.1, "Is it proven that he has treated employees of this tribunal and
lawyers improperly”? Judge Alfonsín said that "while it is true that mistreatment of his colleagues is not on
the list of offenses with which he is charged, I mention it as a way of illustrating his erratic behavior evinced
by his constant overreaction.” For his part, Judge Aldazabal said, “I would echo the reasons given by Dr. San
Martín in his vote on this matter, with the sole dissent that I do not believe that it is suitably proven that the
accused challenged Dr. Pastore to a fight outside the Tribunal.”99
122.
The Commission underscores that the way in which the reasoning was presented in this case
impaired the possibility of knowing with any clarity or certainty which facts the jury considered attested and
why they were consistent with the disciplinary grounds that were considered proven. The Commission notes
in that regard that each member of the 9-member jury had to answer 16 questions with various subquestions for each disciplinary ground, making a total of 68 questions per ground. Since there were 7
98 I/A Court H.R., Case of López Lone et al. v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of
October 5, 2015, Series C No. 302, par. 199.
99Annex
5. Vote of the Impeachment Jury of June 15, 2000. Annex 3 to the initial petition of March 4, 2002.