DISSENTING OPINION OF
JUDGE L. PATRICIO PAZMIÑO
FREIRE CASE OF CORDERO
BERNAL V. PERU JUDGMENT OF
FEBRUARY 16, 2021
1.

With my usual respect for the decisions of the Court, I wish to set out the reasons
why I dissented from the majority decision that the Peruvian State had not violated
the rights recognized in Articles 8(1), 9, 23(1)(c) and 25(1) of the American
Convention on Human Rights (hereinafter “the Convention”) of Hector Fidel Cordero
Bernal.

2.

Although I agree with the considerations expressed in paragraph 72 of the judgment
regarding the guarantees accorded to judges based on the principle of judicial
independence, which include the guarantee of tenure and irremovability, I believe
that, based on this guarantee, the Court should have declared the violations alleged
by the Commission and the presumed victim’s representatives.

3.

My position is based on the fact that Mr. Cordero Bernal was dismissed pursuant to
the disciplinary grounds established in article 31.2 of the Organic Law of the National
Council of the Judiciary, which established:
Article 31. . The sanction of dismissal referred to in paragraph (c) of Article 21 of this law is
applicable for the following reasons:
[…] Committing a serious act that, without being a crime, compromises the dignity of the
office and devalues it in the opinion of the public. […]

4.

In my opinion, the wording of this article does not give any indication whatsoever
as to the type of acts that could be considered serious. In addition, the phrases
“compromises the dignity of the office” and “devalues it in the opinion of the public”
are extremely vague and permit the person responsible for exercising disciplinary
powers to exercise considerable discretion. Therefore, they do not provide any type
of guarantee against the possibility of being used arbitrarily.1

5.

Even though it is true that the Court has established that the precision required of
a disciplinary norm differs from that required in criminal matters, owing to the
nature of the disputes that each one is called on to decide,2 it is also true that the
Court has indicated repeatedly that the guarantee of the tenure of judges signifies
that they may only be dismissed or removed from office for conducts that are clearly
reprehensible; that is, for serious reasons related to misconduct or incompetence.
Also, the possibility of dismissal should be based on the principle of the most serious
offenses. Indeed, the protection of judicial independence requires that the dismissal
of judges be considered as the última ratio in judicial disciplinary matters.3

6.

Consequently, I consider that the National Council of the Judiciary, when sanctioning
Mr. Cordero Bernal based on article 31.2 of the Organic Law of the National Council
Cf. Case of Urrutia Laubreaux v. Chile. Preliminary objections, merits, reparations and costs.
Judgment of August 27, 2020. Series C No. 409, para. 134.
1

Cf. Case of Maldonado Ordóñez v. Guatemala. Preliminary objection, merits, reparations and
costs. Judgment of May 3, 2016. Series C No. 311, para. 86, and Case of Urrutia Laubreaux v. Chile.
Preliminary objections, merits, reparations and costs. Judgment of August 27, 2020. Series C No. 409,
para. 129.
2

3

Cf. Case of López Lone et al. v. Honduras. Preliminary objection, merits, reparations and costs. Judgment of October 5,
2015. Series C No. 302, para. 259.

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