72. Traditional legal doctrine distinguishes between “legal control” and “political control.”86 Both types of control form part of “institutionalized controls”; however, the former are objectively determined controls; that is, they are based on legal reasons and on a pre-existing canon that is not available to the organ exercising the control. Thus, legal control applies pre-established limitations; it is a necessary control, because the controlling organ must exercise this control when it is asked to and, if appropriate, issue a sanction; and it is exercised by an independent and impartial body, endowed with exclusive technical competence to decide matters of law. The latter – political control – is subjective in nature, because there is no fixed and predetermined canon of assessment, since it is based on the assessment freely made by the controlling organ, based on reasons of opportunity; it is exercised voluntarily, because the controlling organ or subject is free to exercise the control or not to do so, and it does not necessarily entail the issue of a sanction; and the political body, or the empowered authority or subject is in a situation of supremacy or hierarchy.87 73. If we follow Aragón’s characterization and we take into account the references that the ICourtHR has cited in relation to the impeachment of judges 88 — as happens in numerous countries of the region, where this is carried out by the Legislature89 — it follows that impeachment constitutes “legal control” as regards the function it performs. Even though it is true that the organ carrying out the impeachment, the type of offenses penalized,90 and the sanctions that can be imposed are political in nature,91 in the exercise of this function, Congress must act as an independent and impartial organ, complying with the guarantees of due process. Hence, the control exercised by Congress by means of impeachment is of a jurisdictional nature, as an important sector of legal doctrine has accepted.92 Indeed, as Aragon himself asserts, the jurisdictional nature of the organ is a consequence of the type of control and not vice versa. 93 Thus, I consider that we should not Among others, see Valadés, Diego, El control del poder, Mexico, UNAM, 1998 (3ra. ed., Porrúa-UNAM, 2006); and Aragón, Manuel, Constitución, democracia y control, Mexico, UNAM, 2002, especially pp. 136 to 141. 86 87 Aragón, Manuel, op. cit., pp. 130, 131, 136-137. Case of the Constitutional Court v. Peru. Merits, reparations and costs. Judgment of January 31, 2001. Series C No. 71, especially paras. 71 to 77. 88 This occurs in various countries that have signed the American Convention, where the impeachment of judges of the high courts is carried out by the Legislature (in a constitutional proceeding of one or two chambers, depending on the country). However, it is relevant not to lose sight of what was said by expert witness Despouy in his statement during the public hearing on March 18, 2013: “…today, the word impeachment is above all a historical reminder of the fact that it used to be the political power, in this case, Congress, generally the Senate in many countries, that made a ruling, those that took the decision, or even the chamber of members of congress and senators that operated as an indictment chamber and a trial chamber; but, today, evolution has determined with growing strength the need to establish independent autonomous bodies” (underlining added). 89 We should not lose sight of the fact that, according to international standards, tenure is one of the main guarantees of judicial independence, and can only be infringed in exceptional circumstances, as a result of disciplinary measures established by law, applied by an independent body using a specialized procedure that complies with the guarantees of due process, subject to judicial control. Misconduct or ineptitude are causes for the removal of judges, but not judicial errors. A/HCR/11/41 of 24 March 2008 of the United Nations Special Rapporteur on the independence of judges and lawyers, paras. 52-64. 90 Fix-Zamudio, Héctor, Estudio de la defensa de la Constitución en el ordenamiento mexicano, 2ª ed., México, Porrúa/UNAM, 2011, pp. 190-191. 91 Fix-Zamudio, op. cit., p. 191. Sabsay, Daniel Alberto, “El juicio político a la Corte Suprema en la República argentina”, Anuario Iberoamericano de Justicia Constitucional, 2004, No. 8, p. 506. Arteaga Nava, Elisur, Derecho Constitucional, Mexico, Oxford University Press, 1999, pp. 701 ss. Huerta Ochoa, Carla, Mecanismos constitucionales para el control del poder político, México, UNAM, 2ª ed., 2001, p. 30. González Oropeza, Manuel, “Juicio político”, in Carbonell, Miguel (coord.), Diccionario de Derecho Constitucional, Mexico, Porrúa/UNAM, 2002, p. 335. Orozco Henríquez, J. Jesús, “Artículo 110”, Constitución Política de los Estados Unidos Mexicanos. Comentada y concordada, 18ª ed., México, Porrúa/UNAM, t. IV, 2004, p. 195. 92 93 Ibidem, p. 137. 18