B. 1. Right to a fair trial, lawfulness principle, and legal protection Right to previously know the issued indictment73 in a detailed way and to have the appropriate time and means for defense 74 79. The Commission recalls that the right to defense implies that the person subjected to a proceeding, including an administrative one, has to be able to effectively defend his or her interests or rights and under “conditions of equality of arms (...) being fully informed about the accusations against him or her.”75 The Court indicated that the right to defense has to necessarily be allowed to be enforced from the moment a person is pointed as potential author or accomplice of an illicit act, and it only finishes at the end of the proceeding.76 Pursuant to the foregoing, this is equally applicable to proceedings entailing a punishment. 80. The IACHR observes that in this case, during the assessment and ratification proceeding, the NCM never brought charges or issued indictments against the alleged victims and neither were they notified of reports or claims against them that would allow them to submit evidence or arguments. The Commission recalls that the design of the assessment and ratification proceeding, as it was included in the legal framework in force from the non-ratification of the alleged victims of this case, did not foresee the bringing of charges or the issue of indictments that would allow magistrates get to know the reasons that could base the ratification or non-ratification decision by the National Council of the Magistracy, which absolutely prevents them from defending themselves or submitting evidence, since they were not aware of the charges considered to assess them. In this way, notwithstanding that if some of the alleged victims could access to the previous interview, the latter cannot be understood as an appropriate defense mechanism in the referred circumstances of not acknowledging the specific reasons for the potential decision to non-ratify them. As it will be later analyzed regarding the lawfulness principle, the IACHR observes that the legally established criteria for the assessment proceeding cannot make up, in abstract, for the absence of an individualized notification with a real possibility of defense, on the aspects analyzed and that will determine their potential non-ratification, in a concrete case. 81. By virtue of the foregoing, the IACHR concludes that the State violated Articles 8.2 b) and 8.2 c) of the American Convention, in relation to Articles 1.1 and 2 of this document, to the detriment of Jorge Luis Cuya Lavy, Jean Aubert Díaz Alvarado, Marta Silvana Rodríguez Ricse, and Walter Antonio Valenzuela Cerna. 2. Regarding the right to have duly motivated decisions 77 and the freedom from ex post facto laws principle78 82. The IACHR indicated that, in the framework of disciplinary proceedings against justice operators, there shall be clear regulation on the dismissal causes and proceedings, and their absence, apart from promoting doubt on independence, can lead to arbitrary acts of abuse of power, with a direct impact on due process rights and lawfulness.79 The Commission stated that the fulfillment of the lawfulness principle Article 8.2 b establishes that the right to previous and detailed communication for the person accused of the indictment issued. Article 8.2 c refers to the concession of time and the appropriate means to the person accused due to his or her defense’s preparation. 75 IAHR Court. Legal Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03, September 17, 2003. Series A No. 18, para. 117. 76 IAHR Court, Case Barreto Leiva vs. Venezuela. Merits, Reparations, and Indemnities. Judgment of November 17, 2009. Series C No. 206. Para. 29. Citing mutatis mutandis IAHR Court, Case Suárez Rosero vs. Ecuador. Judgment of November 12, 1997. Series C No. 35, para. 71; and Case Heliodoro Portugal vs. Panama. Preliminary Exceptions, Merits, Reparations, and Indemnities. Judgment of August 12, 2008. Series C No. 186, para. 148. 77 Article 8.1 of the American Convention establishes that every person has the right to be heard, with the proper safeguards and within a reasonable term of time, by the competent judge or court, independent and impartial, previously established by the law, in the determination of any criminal accusation made against them, or for the determination of their rights and obligations of civil, fiscal or other nature. 78 Article 9 establishes that nobody can be convicted of actions or omissions that, at the moment of committing them, were not criminal, according to applicable law. The most serious penalty imposed shall be the one applicable at the moment of the crime. If after the crime is committed, the law orders to impose a lighter penalty, the criminal will benefit from it. 79 IACHR, Independence remedies for justice operators. The Road toward Strengthening the Access to Justice and the Rule of Law in the Americas, OEA/ser.L/V/II.Doc.44, December 5, 2013, para. 206 and 207. 73 74 15