44.
Lastly, it is necessary to call attention to the reference made to the majority opinion in the
case of Casa Nina v. Peru.36 We should not lose sight of the fact that the considerations made
in the instant case are very different from the analysis made in that judgment, because on
that occasion, the IACtHR ruled on a dismissal “based on the needs of public service” of a
provisional prosecutor and not on the sanction of dismissal in an administrative disciplinary
proceeding.
III.
DUE PROCESS AND JUDICIAL PROTECTION IN THE
INSTANT CASE
45.
As mentioned in the judgment,37 the analysis of the arguments presented by the Commission
and Mr. Cordero Bernal’s representatives reveals that the dispute in this case relates to the
effectiveness of the application for amparo against the decisions of the National Council of
the Judiciary.
46.
In this regard, the IACtHR found that the Peruvian Constitution established that the decisions
of the National Council of the Judiciary could not be contested and that, at the time of the
facts, the judges interpreted that the only admissible remedy was the application for amparo
based on violations of due process; therefore, not for alleged violations of other fundamental
rights. In this case, for example, Mr. Cordero Bernal argued the violation of the guarantee
of irremovability, which was not analyzed.38 However, the majority opinion concluded that
“the judges of the amparo procedure examined the decision adopted by the CNM and
concluded that it was duly substantiated and that the right to due process had not been
violated.”39
47.
I disagree with that conclusion. We should recall that the Inter-American Court has indicated
that Article 25(1) of the Convention establishes the obligation of the States Parties to ensure
to everyone subject to their jurisdiction a simple and prompt remedy, that is rapid and
effective against acts that violate their fundamental rights.40 On this basis, the IACtHR has
indicated that, pursuant to Article 25 of the American Convention, it is possible to identify
the State obligation to enact and to ensure the due application of effective remedies before
the competent authorities that protect everyone subject to their jurisdiction against acts that
violate their fundamental rights or that involve the determination of their rights and
obligations.41 The right established in Article 25 is closely linked to the general obligation of
Article 1(1) of the Convention, by attributing protection functions to the domestic law of the
States Parties.42 Consequently, the State has the responsibility not only to design and enact
Cf. Case of Cordero Bernal v. Peru. Preliminary objection and merits. Judgment of February 16, 2021. Series
C No. 421, para. 81.
36
Cf. Case of Cordero Bernal v. Peru. Preliminary objection and merits. Judgment of February 16, 2021. Series
C No. 421, para. 102.
37
Cf. Case of Cordero Bernal v. Peru. Preliminary objection and merits. Judgment of February 16, 2021. Series
C No. 421, para. 48.
38
Cf. Case of Cordero Bernal v. Peru. Preliminary objection and merits. Judgment of February 16, 2021. Series
C No. 421, para. 103.
39
Cf. Case of Mejía Idrovo v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of July
5, 2011, Series C No. 228, para. 95, and Case of Martínez Esquivia v. Colombia. Preliminary objections, merits and
reparations.. Judgment of October 6, 2020. Series C No. 412, para. 130.
40
41
Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of November 19, 1999. Series C No. 63,
para. 237, and Case of Noguera et al. v. Paraguay. Merits, reparations and costs. Judgment of March 9, 2020. Series C No. 401, para. 79.
Cf. Case of Castillo Páez v. Peru. Merits. Judgment of November 3, 1997. Series C No. 34, para. 83, and Case
of López et al. v. Argentina. Preliminary objections, merits, reparations and costs. Judgment of November 25, 2019.
Series C No. 396, para. 209.
42