PARTIALLY DISSENTING OPINION OF JUDGES
EDUARDO FERRER MAC-GREGOR POISOT AND PATRICIA PÉREZ GOLDBERG
INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF SCOT COCHRAN V. COSTA RICA
JUDGMENT OF MARCH 10, 2023
(Preliminary objections and merits)
1.
With the usual respect for the majority decision of the Inter-American Court of Human
Rights (hereinafter, “the Court” or “the Inter-American Court”), we issue this opinion 1 in order
to express our position on the admissibility of establishing the international responsibility of
the State of Costa Rica for the violation of the right to judicial guarantees, in particular the
guarantee of an impartial judge, based on Article 8(1) of the American Convention on Human
Rights in relation to Article 1(1) of this instrument.
2.
To this end, we will refer, first, to the right to be tried by an impartial judge as part of
due process of law and then analyze the merits of the dispute in order to set out the
arguments that support our position.
I.
The right to be tried by an impartial judge as part of due process of law
3.
Article 8(1) of the American Convention indicates the following:
Article 8. Right to a Fair Trial
1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent,
independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of
a criminal nature made against him or for the determination of his rights and obligations of a civil, labor,
fiscal, or any other nature.
4.
Several standards developed in the Inter-American Court’s case law have been derived
from this provision and, based on them, the so-called “due process of law” – a guarantee that
establishes the right to be tried by an impartial judge – has been articulated and provided
with content. 2 Thus, the Court has asserted that, in a democratic society, the guarantee of
judicial impartiality allows the courts of justice to inspire the necessary trust and confidence
in the parties to a case, as well as in the general public. 3
5.
Consistent with the case law of the European Court of Human Rights (hereinafter, “the
European Court”), the Inter-American Court has indicated that judicial impartiality has two
aspects: one subjective and the other objective. 4
Article 65(2) 65(2) of the Rules of Procedure of the Inter-American Court: “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 shall be submitted within a time limit to be fixed by the President so that the other judges
may take cognizance thereof before notice of the judgment is served. Said opinions shall only refer to the issues
covered in the judgment.”
1
Case of Genie Lacayo v. Nicaragua. Merits, reparations and costs. Judgment of January 29, 1997. Series C
No. 30, para. 74.
2
Cf. Case of Herrera Ulloa v. Costa Rica. Preliminary objections, merits, reparations and costs. Judgment of
July 2, 2004. Series C No. 107, para. 171.
3
4
Cf. Case of Herrera Ulloa v. Costa Rica, supra, para. 170.