regulation should reveal in violation of the principle of legality contained in Article 9 of the
Convention. The State itself implicitly recognized this argument when it indicated that these
disciplinary grounds were used for the last time against Mr. Urrutia, which “was an exception
in Chilean disciplinary case law,” and that they had not been applied in the course of the last
14 years, thus admitting that they violated the Convention.
136. Furthermore, the Court notes that regulations such as this violate not only the principle
of legality but also judicial independence. Indeed, irrespective of the lack of precision in the
legal formulation of the said regulation, this Court finds it necessary to note that the guarantee
for everyone that they will be tried by an “independent” judge in Article 8(1) of the Convention,
presupposes the existence of “independent” judges; in other words, that every State must
respect judicial independence.
137. Although it is evident that there are limitations inherent in the judicial function in relation
to public statements, especially with regard to the cases submitted to the jurisdictional
decisions of judges, these should not be confused with statements that criticize other judges
and, especially, statements made in public defense of their own functional performance.
138. Prohibiting judges from criticizing the functioning of the power of the State of which they
form part, which necessarily involves the criticism of the conduct of other judges, or requiring
that they request authorization from the President of the highest court to do this and,
moreover, that they must act in the same way when they wish to defend their own judicial
actions, signifies opting for a hierarchized model of the Judiciary in the form of a corporation
in which judges lack internal independence, with a propensity towards unconditional
subordination to the authority of their own collegiate organs and although, formally, the
intention may be to limit this to the disciplinary sphere, in practice, owing to inherent fear of
this power, it results in subjugation to so-called “superior” jurisprudence and paralyzes the
interpretive dynamic in the application of the law.
139. Furthermore, the Court recalls that Article 2 of the Convention obliges States Parties to
adopt, in accordance with their constitutional processes and the provisions of this Convention,
such legislative or other measures as may be necessary to give effect to the rights and freedoms
protected by the Convention.130 This obligation involves the adoption of two types of measures:
on the one hand, the elimination of norms and practices of any nature that entail a violation
of the guarantees established in the Convention, 131 either because they reject those rights and
freedoms or because they prevent their exercise;132 and, on the other, the issue of norms and
the development of practices conducive to the effective observance of those guarantees. 133
140. The violations of the Convention determined in this chapter resulted from the application
of article 323.4 of the Organic Code of the Courts. The Court notes that based on Article 2 of
the Convention, the State was obliged to eliminate norms that entailed a violation of the
guarantees established in the Convention. Therefore, the State incurred in an omission by
keeping this norm in force. This omission resulted in a violation of Article 2 of the Convention
Cf. Case of Gangaram Panday v. Surinam. Preliminary objections. Judgment of December 4, 1991. Series C No.
12, para. 50, and Case of Colindres Schonenberg v. El Salvador. Merits, reparations and costs, supra, para. 96.
130
Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, reparations and costs. Judgment of May 30, 1999. Series C No.
52, para. 207, and Case of Colindres Schonenberg v. El Salvador. Merits, reparations and costs, supra, para. 96.
131
Cf. Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. Merits, reparations and costs. Judgment of
June 21, 2002. Series C No. 94, para. 113, and Case of Colindres Schonenberg v. El Salvador. Merits, reparations
and costs, supra, para. 96.
132
Cf. Case of Castillo Petruzzi et al. v. Peru, Merits, reparations and costs, supra, para. 207, and Case of Colindres
Schonenberg v. El Salvador. Merits, reparations and costs, supra, para. 96.
133
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