CONCURRING OPINION OF
JUDGE EUGENIO RAÚL ZAFFARONI
IN THE JUDGMENT OF AUGUST 27, 2020
OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF URRUTIA LAUBREAUX V. CHILE
1.
The sanction imposed on the judge in this case reveals the corporate significance
that judges of collegiate bodies tried to assign to the Judiciary of which they formed part.
It was argued, and not contested, that in the paper sent by the victim he criticized the
conduct of the highest court during a dictatorship that committed gross human rights
violations.
2.
The law that authorized the sanction imposed on that occasion did not protect a
mandate inherent in the judicial function, such as the prohibition of judges issuing
irresponsible or undue public statements on proceedings in which they intervened or
other similar proceedings. Rather, the law in question prohibited public criticism of other
judges which, added to the ambiguity of the wording of the text, entailed prohibiting
criticism of the very functioning of the Judiciary – and even criticism of the case law of
other judges – without authorization from the highest authority.
3.
In this case, the victim was sanctioned because he had criticized the highest
authority owing to its conduct during a dictatorship under which execrable crimes against
humanity were committed, even though he had not made his criticism public.
4.
This signifies that the collegiate organs understood that members of the Judiciary
lost the right of the citizen to criticize the exercise of the powers of the State and of the
power of which they were members, even in a case of gross crimes against humanity,
in order to protect a supposed honor, dignity or prestige of the entity to which they
belonged.
5.
Even though this is not stated, and it was not even considered in this way, the
reality is that this kind of restriction involves the adoption of a corporate model that is
valid for legal persons in the sphere of private law. Using an extreme simplification of
the theory of the reality of legal persons – once used in common law – an
anthropomorphic model is proposed in which the corporate human being is integrated
as a cell of a hierarchized higher organism, under the command of a leadership that
assumes the functions of a sort of guiding brain. This entity would, thus, be entitled to
a different objective honor or prestige from the persons that compose it.
6.
It is not necessary to define the corporate organization of a Judiciary in this way,
when the rules that authorize sanctions – and the imposition of those sanctions – reveal
that they respond to this underlying model where the judicial organization is conceived
hierarchically and judges renounce the citizen’s right to criticize the decisions of their
colleagues.
7.
This hierarchized corporate organization corresponds to a vertical Judiciary, with
no internal discussions, where freedom of thought and to criticize judges cedes before
the collegiate bodies.

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