I/A Court H.R., Case of López Lone et al. v. Honduras. Preliminary Objection, Merits, Reparations and Costs. Judgment of October 5, 2015. Series C No. 302.

Non official brief

 

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

 

Facts – In June 2009 a coup d’état took place in Honduras. Army troops deprived President José Manuel Zelaya Rosales of his liberty after the Attorney General filed a detention request with the Supreme Court for alleged crimes against the form of government, treason, abuse of authority and abuse of power. These accusations stemmed from President Zelaya's attempts to amend the constitution of Honduras. On the day of his capture a “supposed letter of resignation by [President] Zelaya” was read in Congress, which subsequently named its President as the Constitutional President. The Supreme Court of Honduras described these events as a constitutional succession.

 

However, these facts were considered a coup d’état by the General Assembly and the Permanent Council of the Organisation of American States (OAS), as well as by the General Assembly of the United Nations. In July 2009 the General Assembly of the OAS, using Article 1 of the Inter-American Democratic Charter for the first time, decided to “suspend the State of Honduras from the exercise of its right to participate in the Organisation.” After several negotiations, in October 2009 the Tegucigalpa/San José Agreement was signed to achieve national reconciliation and a Truth and Reconciliation Commission was established to “clarify the events before and after 28 June 2009”. In November 2009 elections were held and subsequently, on 22 May 2011, an Agreement for National Reconciliation was signed, after which the suspension from the OAS was lifted.

 

The instant case concerned disciplinary proceedings against judges Adan Guillermo López Lone, Luis Alonso Chévez de la Rocha, Ramón Enrique Maldonado Barrios and Tirza del Carmen Flores Lanza. These proceedings were initiated due to the applicants’ actions in defence of democracy and the rule of law in response to the coup d’état. Mr. López Lone participated in a demonstration against the coup; Mr. Chévez de la Rocha was allegedly involved in a demonstration against the coup for which he was briefly detained and he also criticised the judiciary in front of colleagues; Ms. Flores Lanza filed a criminal complaint against the military officials that participated in the coup and a writ of amparo in favour of the deposed President, and Mr. Barrios Maldonado gave a lecture, which was later reproduced in a newspaper article, in which he expressed his opinion about the coup. Also, all four judges were members of the Association of Judges for Democracy (AJD), which publicly criticised the coup and called for the restoration of the rule of law. As a result of these proceedings the four judges were dismissed and three of them, whose dismissals were confirmed on appeal, were removed from the judiciary.

 Law

 

(a)     Preliminary objection – The State filed a preliminary objection for the alleged failure to exhaust two domestic remedies. The Inter-American Court rejected the objection because it considered part of Honduras’ argument (regarding an administrative appeal) time-barred and because the State had failed to demonstrate the availability of the other alleged remedy (an amparo appeal).

 

(b)     Merits – As a preliminary finding, the Inter-American Court emphasised that representative democracy is one of the foundations of the entire system of the American Convention on Human Rights (ACHR). It found that the events of June 2009 in Honduras constituted an internationally wrongful act. During this situation the de facto government had initiated disciplinary proceedings against the applicants for behaviour that, at its core, constituted actions against the coup and in favour of the rule of law and democracy. The Court held that the applicants’ conduct in response to the coup constituted not only the exercise of a right but also compliance with the duty to defend democracy.

 

Articles 23 (right to participate in government), 13 (freedom of expression), 15 (right of assembly) and 16 (freedom of association) in relation to Articles 1(1) (obligation to respect and ensure rights) and 2 (obligation to adopt domestic measures) of the ACHR: Thee Inter-American Court emphasised the strong relationship between political rights, freedom of expression, the right of assembly and freedom of association, and how these rights, taken together, are central to democracy. It considered that in situations of institutional breakdown, for example after a coup, the relation- ship between these rights is even more important; particularly when exercised together in order to protest a breach of the constitutional order and democracy. The Court noted that statements or actions in favour of democracy must have the maximum possible protection and, depending on the circumstances, could have an impact on some or all of these rights. The right to defend democracy is part of the right to participate in public affairs, which also involves the exercise of other rights such as freedom of expression and the right of assembly.

 

In ruling on the right to participate in politics, freedom of expression and the right of assembly of persons exercising judicial functions, the Court noted that there was a regional consensus on the need to restrict the participation of judges in partisan political activities, especially, considering that in some States in the region, any participation in politics, except voting in elections, was prohibited in broader terms. The Court stressed that restricting the participation of judges, in order to protect their independence and impartiality, was compatible with the ACHR. Similarly, it noted that the ECHR had held that certain restrictions on the freedom of expression of judges are necessary in all cases where the authority and impartiality of the judiciary may be challenged (citing Wille v. Liechtenstein [GC], 28396/95, § 64, 28 October 1999, Information Note 11; and Kudeshkina v. Russia, 29492/05, § 86, 26 February 2009, Information Note 116).

 

However, the Inter-American Court held that the power of States to regulate or restrict these rights is not discretionary. Any limitations on the rights enshrined in the ACHR must be interpreted restrictively. A restriction on judges’ participation in partisan political activities should not prevent judges from participating in all discussions of political issues. In this regard, there could be situations where a judge, as a citizen of society, believes he has a moral duty to express himself.

 

Accordingly, the Court established that restrictions that ordinarily limit the right of judges to participate in partisan political activities do not apply to situations of serious democratic crisis, such as that in the instant case. It would be contrary to the independence inherent in State powers to deny judges the right to speak up against a coup. Moreover, the mere fact that disciplinary proceedings had been initiated against the judges for their actions against the coup could have a chilling effect and thus constitute an undue restriction of their rights.

 

Therefore, the disciplinary proceedings against Mr. López Lone and Mr. Chévez de la Rocha constituted a violation of their freedom of expression, right of assembly and political rights, while the proceedings against Ms. Flores Lanza and Mr. Barrios Maldonado constituted a violation of their freedom of expression and political rights. The Court also concluded that, due to their removal from the judiciary, Mr. López Lone, Mr. Chévez de la Rocha and Ms. Flores Lanza were no longer able to participate in the AJD, and thus their dismissal also constituted an undue restriction on their freedom of association.

Conclusion: violation (unanimously).

 

Articles 8 (right to a fair trial), 25 (right to judicial protection) and 23 in relation to Articles 1(1) and 2 of the ACHR: The Inter-American Court recalled that judges, unlike other public officials, enjoy specific guarantees due to the necessary independence of the judiciary. In this regard, it established that: (i) respect for judicial guarantees involves respecting judicial independence; (ii) the dimensions of judicial independence are translated into the subjective right of the judge to be removed from office solely on the basis of permitted grounds and either through proceedings that satisfy all judicial guarantees or due to the completion of their term in office, and (iii) when a judge is arbitrarily removed from office, the right to judicial independence, as well as the right to enter and remain on general terms of equality in public office, are affected.

 

The guarantee of stability of judges, in addition to ensuring that a judge can only be removed under the conditions described above, implies that: (i) judges can only be dismissed for serious disciplinary offences or incompetence, and (ii) any disciplinary proceedings against judges shall be resolved in accordance with established standards of judicial conduct in fair procedures to ensure objectivity and impartiality under the Constitution or the law.

 

The judges in the instant case had been subjected to disciplinary proceedings where a first decision of dismissal was adopted by the Supreme Court, while the appeals were reviewed by the Judicial Council, a subordinate and accessory organ to the Supreme Court. The Inter-American Court found that (i) the judges were subjected to disciplinary procedures that were not established by law; (ii) their appeals were heard by a Judicial Council that not only was legally incompetent but lacked independence and impartiality to review decisions by the Supreme Court; and (iii) the Supreme Court did not provide objective guarantees of impartiality to rule on the alleged disciplinary offences com- mitted by the applicants, to the extent that such offences related to actions in response to the coup d’état.

 

The Inter-American Court concluded that the State had violated the judicial guarantees of the four judges in the case, as well as the right to remain in office of the three judges whose dismissal was confirmed on appeal.

 

Regarding the right to judicial protection, the Court considered that the context in which the facts of the case had taken place and the fact that any amparo appeal against a decision by the Judicial Council had to be filed before the Supreme Court had rendered such remedy ineffective. Therefore, it concluded that the State had violated the right to judicial protection of all four judges.

Conclusion: violation (unanimously).

 

Article 9 (freedom from ex post facto laws) in relation to Articles 1(1) and 2 of the ACHR: The Inter-American Court found that the disciplinary rules that had been applied to the applicants granted too much discretion to the disciplinary judge in determining their sanctions. It stressed that dismissal or removal from office is the most restrictive and severe measure that can be taken in disciplinary matters and must thus comply with the principle of maximum severity. The possibility of its application must be predictable, either be- cause it is expressly and clearly stated in the law, or because the law delegates its assignment to a judge or an infra legal norm under objective criteria in order to limit the scope of such discretion.

 

In addition, the Court noted that the applicants had been punished under a multiplicity of rules. The lack of an adequate motivation in the decisions prevented the Court from distinguishing the normative grounds or unlawful conduct for which they were dismissed, as well as analysing their legal certainty. However, the Court did warn against the use of indeterminate concepts such as the “dignity of the administration of justice” or “decorum of the office” to codify punishable infractions, without the establishment of objective criteria, through normative regulations or judicial interpretation, that limit the scope of a judge’s discretion and separate such terms from personal and private opinions.

 

For the aforementioned reasons, the Court concluded that the State had violated the principle of legality against all four judges.

Conclusion: violation (unanimously).

 

(c)      Reparations – The Inter-American Court established that the judgment constituted per se a form of reparation and ordered the State to: (i) reinstate Mr. López Lone, Ms. Flores Lanza and Mr. Chévez de la Rocha to similar positions to those they had at the time of their dismissal, with the same pay, benefits and rank for which they would qualify if they had been reinstated at the time. If that was not possible, the State was to pay the amount established in the judgment; (ii) publish the judgment and its official summary, and (iii) pay the amounts stipulated in the judgment as compensation for pecuniary and non-pecuniary damages, as well as reimbursement of costs and expenses.