an effective remedy, but also to ensure due application of that remedy by its judicial
authorities.43
48.
With specific reference to the effectiveness of the remedy, this Court has established that
the meaning of the protection provided by the article is the real possibility of having a judicial
remedy so that a competent and capable authority may issue a binding decision, determine
whether or not there has been a violation of any right that the person who files the remedy
considers he possesses and that, if a violation is declared, the remedy is useful to restore
the enjoyment of the right to the interested party and to provide redress.44 This does not
mean that the effectiveness of a remedy is evaluated based on whether it produces a
favorable result for the defendant [italics and underlining added].45
49.
On this basis, the majority opinion should have concluded that, even though a remedy
existed under Peruvian law, this was not effective because it limited its admissibility to
alleged violations of due process, rather than to the violation of fundamental rights
possessed by those who form part of the judiciary, as judges, in a situation of dismissal or
disciplinary proceedings.
50.
This is even corroborated by the information provided by the State, which indicated that
subsequent jurisprudential interpretation had established the effectiveness of the application
for amparo to examine any violation of the fundamental rights resulting from the decision to
dismiss a judge.46 In other words, it can be understood that, at least at the time of the facts,
although the application for amparo, as it was defined, protected fundamental rights, in the
case of judges, even if they cited other rights, these were not examined because this remedy
was only admissible for violations of due process.
51.
Nevertheless, the majority opinion merely noted the admissibility of the application for
amparo in conformity with the only grounds for which it could be filed and did not examine
it further in this case. And this was despite the fact that Mr. Cordero Bernal had argued
“infringement of the guarantee of irremovability from office.”
52.
In addition, it is worth noting that, pursuant to Article 2 of the American Convention (the
violation of which was not argued in this case), the State was obliged to eliminate practices
of any nature that entailed a violation of the guarantees established in the Pact of San José.
Therefore, the State had failed to adopt the necessary measures to ensure the possibility of
filing a simple, prompt and effective remedy before a competent judge or court against acts
that violated fundamental rights other than due process which had occurred during a
disciplinary proceeding. This failure should have resulted in a violation of Article 2 of the
Convention in relation to the right to judicial protection.
53.
Based on the above, I consider that although Mr. Cordero Bernal had access to the
43
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 López et al. v. Argentina, Preliminary objections, merits, reparations
and costs. Judgment of November 25, 2019. Series C No. 396, para. 209.
44
Cf. Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8 American Convention on Human Rights), Advisory Opinion OC-9/87,
October 6, 1987. Series A No. 9, para. 24; Case of Castañeda Gutman v. Mexico. Preliminary objections, merits, reparations and costs. Judgment
of August 6, 2008. Series C No. 184, para. 100, and Case of López et al. v. Argentina, Preliminary objections, merits, reparations and costs. Judgment
of November 25, 2019. Series C No. 396, para. 210.
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 67,
and Case of López et al. v. Argentina, Preliminary objections, merits, reparations and costs. Judgment of November
25, 2019. Series C No. 396, para. 210.
45
46
Cf. Answering brief of the State (folio 290) and final written arguments of the State (folio 882).