109. Regarding Jorge Luis Cuya Lavy, in relation to the alleged violation of Article 9 of the Convention, the representatives indicated that the regulations in force at the time did not provide for the presentation of charges or a precise accusation for predetermined acts such as infractions, which would allow them to defend themselves, offer evidence and know the reasons why they may not be ratified. In addition, they observed that, according to the regulations, the CNM had absolute discretionary power to make the assessment of the tenure in the position. Thus, the individuals evaluated were unaware prior to the procedure which behaviors could be considered wrongdoing and which could not. Consequently, they concluded that the State violated Articles 8(1) and 9 of the Convention, as well as Articles 1(1) and 2 of the same treaty, to the detriment of Jorge Luis Cuya Lavy. 110. Regarding Walter Antonio Valenzuela Cerna, in relation to the principle of legality, his representatives reiterated within the legal framework of the evaluation and ratification process, duly defined grounds were not established that would allow the alleged victim to understand the conduct evaluated by the CNM that could be considered as serious offenses, thus justifying nonratification. Consequently, they concluded that the State had violated the principle of legality, in relation to Articles 1(1) and 2 of the Convention. 111. The State considered that the process of evaluation and ratification of judges and prosecutors is different from a disciplinary process and cannot be compared, since its purpose is to evaluate the suitability and conduct of the magistrates to continue to carry out their jurisdictional or fiscal function, which seeks to determine which person has the necessary qualities to continue in the position, taking into consideration its significance, relevance and sensitivity. It added that the purpose of the disciplinary process is to find administrative responsibilities and, consequently, to establish sanctions of the same nature. Although the aforementioned processes may result in the termination of the judicial or prosecutorial role, this is not foundation to consider that the former has a disciplinary nature. 112. The State considered that non-ratification is not a punishment, but rather a consequence of a performance evaluation applied every seven years to every magistrate. It does not arise from the accusation of a functional misconduct or administrative offense but begins periodically due to the fact of having served for a period of seven years. It affirmed that this process makes it possible to ensure the tenure of suitable magistrates and to remove those who do not have the qualities to perform such a noble public service role. It indicated that the aforementioned process enjoys the guarantees of due process. 113. It argued that the 1993 Constitution did not incorporate as a requirement the substantiation of decisions issued by the CNM, with respect to the evaluation and ratification processes, since said requirement was limited in order to highlight the differences between ratification and the penalty of dismissal. In addition, the Constitutional Court adopted in its case law at the time, that the decision issued by the CNM materialized through a decision of conscience based on certain criteria. 106 It added that due to developments in regulation and case law, Peru a materially disciplinary and punitive nature. The representative of Jean Díaz and Marta Rodríguez reproduced the same arguments put forward by the Commission in the Merits Report. 106 According to the State, the ratification or non-ratification of magistrates, the responsibility of the National Council of the Judiciary, is a very unique situation. This characteristic derives from the way in which the decision is made based on a conviction of conscience and its expression in a secret and undeliberated vote, although this decision must be based on certain criteria (cf. The Organic Law of the CNM and its Regulations); however, it does not carry the idea of a sanction but only the withdrawal of confidence in the exercise of the role. This means that, necessarily, the application – and entitlement– of all the guarantees included in the right to due process have to be modulated, and this is reduced only to the possibility of a hearing. 29