PARTIALLY DISSENTING OPINION OF THE
JUDGE PATRICIA PEREZ GOLDBERG
INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF MINA CUERO v. ECUADOR
JUDGMENT OF SEPTEMBER 7, 2022
(Preliminary objections, Merits, Reparations and Costs)
With full respect for the majority decision of the Inter-American Court of Human
Rights (hereinafter referred to as "the Court" or "Court"), I issue this partially
dissenting opinion 1 to explain why, in this case, it was appropriate to establish the
international responsibility of the State for the violation of Article 23 of the American
Convention on Human Rights (hereinafter referred to as the IACHR, the Convention,
or the Treaty) and not additionally declare the violation of Article 26 of the
aforementioned Treaty.
As stated in the judgment, in the disciplinary proceedings that led to the separation
of Mr. Mina Cuero, a series of violations of due process occurred, which led to the
declaration of international responsibility of the State of Ecuador for the violation of
Articles 8(1), 8(2), 8(2)(b), and 8(2)(c) of the IACHR (Inter-American Commission
on Human Rights) in relation to Article 1(1) of the same international instrument,
and Article 8(2)(h) of the Convention, in relation to Article 2 of the Treaty, to the
detriment of the victim.
For the sake of organization, I will separately address Articles 23 and 26 of the IACHR.
I.
1.
2.
The application of Article 23 of the Convention in accordance with the
principle of iura novit curia.
First, it is necessary to point out that neither the victim's representative nor
the Commission alleged a violation of Article 23(1)(c) of the Convention, which
does not prevent the Court, by virtue of the principle iura novit curia, from
establishing the applicable law in the specific case.
As it is known, this principle has its roots in Roman law and has had a
significant impact on procedural aspects of continental legal systems. This is
understood because it is inherent to the judicial function to have the "powerduty" to identify the relevant regulations or principles for deciding a case when
the absence of
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 shall be submitted within a time limit to be fixed by
the Presidency 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."
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