CONCURRING AND PARTIALLY DISSENTING VOTE OF
JUDGE PATRICIA PEREZ GOLDBERG
INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF NISSEN PESSOLANI V. PARAGUAY
JUDGMENT OF NOVEMBER 21, 2022.
(Merits, Reparations, and Costs)
With the usual respect for the majority decision of the Inter-American Court of Human
Rights (hereinafter "the Court" or the "Tribunal"), I issue this opinion 1 with the
purpose of reiterating my position on the inadmissibility of establishing the
international responsibility of the State of Paraguay for the alleged violation of the
individual right to job security, based on Article 26 of the American Convention on
Human Rights (hereinafter "the Convention" or "the Treaty").
To do so, I will first refer to the application of the principle iura novit curia and,
subsequently, to the merits of the case.
I.
Application of Article 26 of the Convention in accordance with the
principle of iura novit curia.
1. First, it is necessary to point out that neither the Inter-American Commission
on Human Rights (hereinafter "the Commission") nor the representatives
expressly alleged a violation of Article 26 of the Convention. 2 Notwithstanding
the foregoing, the Court decided to rule on the violation of the right to job
security to the detriment of the alleged victim, by virtue of the principle iura
novit curia.
2. The Court does not substantiate the reasons that lead it to apply this principle
and only limits itself to citing the judgments in the cases of Velásquez
Rodríguez v. Honduras and Guachalá Chimbo et al v. Ecuador, rulings in which
the same basis was cited, 3 a mention which, indeed, does not constitute
1
Article 65(2) of the Rules of Procedure of the Inter-American Court of Human Rights: "Any Judge who
has taken part in the consideration of a case is entitled to append a separate reasoned opinion to the
judgment, concurring or dissenting. These opinions must be submitted within the term set by the
Presidency, so that they may be known by the Judges before the notification of the sentence. Said opinions
shall only refer to the issues covered in the judgment."
2
Cf. Paragraph 99.
3
Unlike other international tribunals, the Court has made recurrent use of this power, as can be seen from
an examination of the decisions adopted in the cases of: Velásquez-Rodríguez v. Honduras, Judgment of
July 29, 1988; Godínez Cruz v. Honduras, Judgment of January 20, 1989; Blake v. Guatemala, Judgment
of January 24, 1998; Durand and Ugarte v. Peru, Judgment of August 16, 2000; Hilaire, Constantine and
Benjamín et al. v. Trinidad and Tobago, Judgment of June 21, 2002; Castillo Petruzzi et al. v. Peru,
Judgment of May 30, 1999; Cantos v. Argentina, Judgment of November 28, 2002; Five Pensioners v.
Peru, Judgment of February 28, 2003; Myrna Mack Chang v. Guatemala, Judgment of November 25, 2003;
Maritza Urrutia v. Guatemala, Judgment of November 27, 2003; Gómez Paquiyauri Brothers v. Peru,
Judgment of July 8, 2004; Juvenile Reeducation Institute v. Paraguay, Judgment of September 2, 2004;
Moiwana Community v. Suriname, Judgment of June 15, 2005; Acosta Calderón v. Ecuador, Judgment of
June 24, 2005; Girls Yean and Bosico v. Dominican Republic, Judgment of September 8, 2005; Mapiripán
Massacre v. Colombia, Judgment of September 15, 2005; García Asto and Ramírez Rojas v. Peru,
Judgment of November 25, 2005; Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of March