69
a judicial official as to what his or her conduct should be, given how serious dismissal is as a disciplinary
sanction for having exercised a human right. The ban on “participation in a political demonstration” to
which the Supreme Court alludes when it decided to dismiss the alleged victim is expressed in the Law
on the Organization, Functions and Authorities of the Courts in excessively vague and broad terms. The
provision does not establish clear-cut parameters by which to foresee what constitutes a political
demonstration; its practical effect, then, is to nullify the judge’s right to express opinions or participate
in public demonstrations about any matter of public concern.
231. This is particularly dangerous when one considers that Article 3(6) of the Law on the
Organization, Functions and Authorities of the Courts does not draw a clear distinction by type of
conduct and speech, and does not give a court the authority to weigh various relevant factors, such as
the timing, context and nature of the demonstration in which the judge participated and what his
participation was seeking to express, in order to determine how severe the offense should be.
Furthermore, the Law on the Organization, Functions and Authorities of the Courts does not even
contain a system of disciplinary sanctions for the offenses therein established, which creates confusion
as to the legal basis that would authorize enforcement of so severe a sanction as dismissal for
noncompliance with the law, given the provision in Article 51 of the Judicial Career Service Act.306 The
decisions handed down in this matter make reference to the Judicial Career Service Act, which provides,
in broad terms, that public officials in the Judicial Branch may be dismissed from their offices for
“serious or repeated noncompliance with or violation of” any of the duties, incompatibilities and
conduct established therein, but does not specify when the conduct should be so deemed. The proof
are the various decisions taken in this matter, none of which states the reasons why the alleged victim’s
conduct is an instance of serious or repeated noncompliance with or violation of the law.
232. Given the foregoing, the Commission concludes that the ambiguity and breadth of the
grounds for removal contemplated in Article 3(6) of the Law on the Organization, Functions and
Authorities of the Courts applied in the present case, implies a failure to comply with the requirement of
strict legality when imposing restrictions on the right of the three judges and one magistrate to their
freedom of expression and their right of assembly, thereby also violating articles 9, 13(1), 13(2) and 15
of the American Convention, read in conjunction with Article 1(1) thereof. Likewise, because this
violation occurred as a result of a law’s enforcement, the State also violated Article 2 of the Convention.
233. Having said this, the Commission must nonetheless examine whether the restriction or
limitation in this case served some legitimate State imperative and whether it was strictly necessary to
achieve that purpose, all for the sake of a systematic and thorough discussion of the possible violations
of the right to freedom of expression that the case sub judice may involve.
234. The second part of the necessity test is to determine whether the purpose that the
restriction serves is legitimate and justified under the American Convention. As previously noted, the
Commission considers that a restriction or limitation on freedom of expression whose purpose is to
defend the principles of judicial independence and impartiality serves legitimate ends that fit within the
concept of institutional ordre public.
306
No supplementary reference is made to the Judicial Career Service Act. Its Article 85 provides that: “Cases not
provided for in this law, its regulations or other related provisions shall be covered by the provisions of the Civil Service Law,
the Code of Administrative Procedures, the Judicial Officials’ Retirement Act or, failing that, the provisions of the Civil Code and
the
Code
of
Administrative
Procedures.
Available
[in
Spanish]
at:
http://www.oas.org/juridico/spanish/mesicic2_hnd_anexo10.pdf