57
that the “authority to represent interests before the courts and tribunals […] is the exclusive purview of
attorneys and persons with degrees in legal and social sciences who are members of the Bar”; it goes on
to state that the exceptions to that rule include “representation in connection with petitions of habeas
corpus or amparo.” The Supreme Court held that, given the facts established, “attorney FLORES LANZA
effectively engaged in solicitorship” inasmuch as “she did not act as a simple citizen, but instead was
practicing her profession; moreover, no evidence was produced to show that she was in any way related
to Mr. JOSÉ ZELAYA ROSALES, whom she was representing, either as spouse, ward or as a relative within
the fourth degree of consanguinity or second degree of affinity.”
186. The Commission notes first that in order to determine the scope of the restriction
established in Article 319 of the Constitution, the Judicial Career Council had to turn to at least three
different laws, which is an indicator of how vague and imprecise those articles were in terms of the
scope of the prohibition contained therein and its legal consequences.
187. The Commission also observes that the Council’s interpretation of that prohibition,
rendered on the basis of imprecise laws, is that judges are prohibited from engaging in legal advocacy
and representation, the purpose being, according to Article 319 of the Constitution, that they should
“provide their services to the Judicial Branch exclusively.” The Commission believes that prohibiting
judges from engaging in legal advocacy and representation has a legitimate purpose, which is precisely
to safeguard the independence and impartiality of judges in the cases in which they participate.
However, the Commission observes that the Judicial Career Council’s interpretation of the prohibition
was that it is not absolute; instead, an exception is made for those procedural acts that are not the
exclusive purview of attorneys and licenciados, among them “the procedures associated with petitions
of habeas corpus or amparo.”
188. Exercise of the right to defend human rights by filing petitions like amparo is essential in
a democratic society278.
189. In the instant case, the Commission notes that according to the Judicial Career Council’s
interpretation, the “procedures associated with petitions of habeas corpus or amparo” would not
constitute solicitorship, and hence would not be prohibited in the case of judges. However, it is unclear
to the Commission whether the Council’s phrase “procedures associated with petitions of habeas corpus
or amparo” would include petitions filed seeking nullification of proceedings on petitions seeking
amparo relief, or is confined to the filing of the petition without any follow-up. The Commission
considers that the prohibition formulated by the Council to dismiss Magistrate Flores Lanza does not
clearly define the parameters of permissible procedures in connection with petitions of amparo, and
those that are impermissible. In the opinion of the Commission, this ambiguity affects the person’s
ability to foresee what conduct is permissible and what conduct is impermissible, in violation of Article 9
of the Convention, and in practice would render the defense of human rights through a petition of
amparo illusory.
278
Specifically regarding the constitucional remedy [amparo], the Court has stablished that “Article 25(1) of the
Convention is a general provision that gives expression to the procedural institution known as amparo, which is a simple and
prompt remedy designed for the protection of all the fundamental rights. I/A Court H.R., Judicial Guarantees in States of
Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series
A No. 9. paragraph 23.