Article 9 of the American Convention. This is because the State acknowledged its
international responsibility with regard to the violation of this principle, 141 and also because,
in the Judgment, the ICourtHR — when analyzing the scope of the State’s partial
acknowledgement of responsibility – considered that “some of the disputes on this point
remain.”142 Hence, I find insufficient the justification given in the Judgment to establish that
“it is not necessary to make a detailed analysis of the arguments of the parties concerning
whether the termination decision constituted a punitive act, and other aspects related to
the possible implications that the principle of legality would have had in this case.” 143
111. Given the evident “harm to the separation of powers and the arbitrary nature of the
actions of Congress” that the Judgment expressly indicates,144 the competence of the
National Congress to impeach the members of the Constitutional Tribunal, 145 and the Court’s
conclusion of the “abuse of power” that occurred in this case, 146 I consider that it was
essential to analyze the violation of the principle of legality with regard to the impeachment
proceedings and to conclude that Article 9 of the Pact of San José had been violated;
hence, my dissent from the seventh operative paragraph of the Judgment. 147 I will now
explain my position in greater depth.
B) The punitive nature of a decision in order to be able to apply Article 9 of the American
Convention in a specific case
1. Case law of the Inter-American Court
112. According to the case law of the Inter-American Court, the principle of legality
established in Article 9 of the American Convention is applicable, in principle, to criminal
matters. However, the ICourtHR itself has also considered it applicable to matters relating
to administrative sanctions.
113. Thus, in the case of Baena Ricardo v. Panama,148 the Inter-American Court
considered:
106.
With regard to the foregoing, it is desirable to analyze whether Article 9 of the Convention is
applicable to the matters of administrative sanction, in addition, evidently, to being applicable to
criminal matters. The terms used in this article seem to refer exclusively to the latter. However, it is
necessary to take into account that administrative sanctions, as well as criminal sanctions, constitute
141
Para. 14 of the Judgment.
142
Para. 22 of the Judgment.
143
Para. 223 of the Judgment.
144
Ibidem.
145
According to Article 130(9) of the 1998 Ecuadorian Constitution; Cf. paras. 67 and 201 of the Judgment.
146
Cf. para. 219 of the Judgment.
To the contrary, in the case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador, the
National Congress did not have competence to terminate the justices of the Supreme Court, while it did have
competence to conduct impeachment proceedings against the members of the Constitutional Tribunal. This absence
of punitive competence, in principle, made it unnecessary for the Court to declare the existence of an implicit
sanction and an abuse of power in the case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador.
Consequently, in that case, my opinion was concurring and not dissenting; Cf. my Concurring Opinion in the Case
of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador. Preliminary objection, merits, reparations and
costs. Judgment of August 23, 2013. Series C No. 266, especially para. 89.
147
Case of Baena Ricardo et al. v. Panama. Merits, reparations and costs. Judgment of February 2, 2001.
Series C, No. 72, para. 106.
148
30