49
Therefore, in the Commission’s view, the phase for review of a conviction is part of the disciplinary
process that must be observed if a judge is to be properly dismissed. As the Court has written, in the
rules that States develop in their respective appeals systems, they must ensure that this remedy against
a conviction respects the minimum procedural guarantees that, under Article 8 of the Convention, are
relevant and necessary to decide the grievances claimed by the appellant.250 In conclusion, the review of
a conviction in a disciplinary process is a guarantee of fair trial for the judge subjected to the process,
but also a protection against arbitrary actions against the independence of judiciary.
155. As for the scope of an appeal to review a judgment, the Court has written that what
matters most is that the appeal guarantees the possibility of a review of the facts and of the law invoked
to support the decision being appealed.251 Accordingly, it wrote the following:
This means that it must be able to analyze the facts, evidence and law on which the
contested judgment was based, because, in jurisdictional activities, interdependence
exists between the determination of the facts and the application of the law, so that
an erroneous determination of the facts entails an incorrect application of the law.
Consequently, the grounds for the admissibility of the appeal should make an
extensive control of the contested sentence possible.252
156. On the matter of the principle of the presumption of innocence, the Inter-American
Court has written that Article 8(2) of the Convention requires that a person cannot be convicted unless
there is clear evidence of his criminal liability. In this respect, the Court has stated that the principle of
presumption of innocence is founded upon the existence of judicial guarantees, by affirming the notion
that a person is innocent until proven guilty.253 As for the principle of presumption of innocence vis-à-vis
the stages of the proceeding, the Inter-American Court wrote that
[…] the right to presumption of innocence is an essential element for the effective
exercise of the right to defense and accompanies the defendant throughout the
proceedings until the judgment determining his guilt is final.254
157. Invoking the case law of the European Court, the Inter-American Court has written that
“the principle of presumption of innocence implies that judges should not start a proceeding with a
preconceived idea that the accused has committed the crime as charged; the burden of proof is on the
prosecutor, and any doubt that arises must benefit the accused. The presumption of innocence is
violated if, prior to the accused being found guilty, a judicial decision concerning him reflects the opinion
that he is guilty.”255 In its own case law, the Inter-American Court has commented on the proceedings
followed in cases involving conduct warranting discipline, to examine whether the oversight bodies,
250
Mendoza, 246.
251
I/A Court H.R., Case of Herrera Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs.
Judgment of July 2, 2004. Series C No. 107, paragraph 165.
252
I/A Court H.R. Case of Mendoza et al. v. Argentina. Preliminary Objections, Merits and Reparations. Judgment of
May 14, 2013, Series C No. 260, paragraph 245.
253
I/A Court H.R. Case of Ricardo Canese v. Paraguay. Judgment of August 31, 2004. Series C No. 111, Paragraph 153.
254
I/A Court H.R. Case of Ricardo Canese v. Paraguay. Judgment of August 31, 2004. Series C No. 111, Paragraph 154.
255
I/A Court H.R. Case of Cabrera García and Montiel Flores v. Mexico. Preliminary Objection, Merits, Reparations and
Costs. Judgment of November 26, 2010, Series C No. 220, paragraph 184