DISSENTING OPINION OF
JUDGE EDUARDO FERRER MAC-GREGOR POISOT
CASE OF CORDERO BERNAL V. PERU
JUDGMENT OF FEBRUARY 16, 2021
(PRELIMIMARY OBJECTION AND MERITS)
INTRODUCTION
1.
With the greatest respect, I dissent from the decision taken in this judgment. I consider that
an opportunity was lost to reaffirm inter-American case law concerning judicial independence
and to explore in detail the level of reasoning that is required in an administrative proceeding
to sanction a judge involving open or indeterminate disciplinary offenses.
2.
My dissent focuses on the conclusion adopted by the majority on the absence of State
responsibility for the violations alleged by the Inter-American Commission on Human Rights
and Mr. Cordero Bernal, thereby closing the case. I consider that the majority should have
considered a different analysis to the way in which the case was approached by way of the
examination of judicial independence and the principle of legality, and by due process and
the effectiveness of the application for amparo.
3.
The purpose of the instant case was the administrative disciplinary proceeding that was
instituted, and that concluded with the dismissal of a judge owing to the delivery of a decision
that was strictly jurisdictional granting unconditional release to two defendants. This
domestic ruling was the reason for his dismissal because the National Council of the Judiciary
(hereinafter “the CNM”) considered that the conduct was “serious” and, pursuant to domestic
law, the CNM’s decision could not be reviewed by a court. The application for amparo was
the only remedy admissible as we will see below. It is worth noting that, after eight years
had passed, Mr. Cordero Bernal was acquitted of the offenses of “complicity” and “breach of
trust” that he had been accused of, based on the same facts that were the grounds for the
disciplinary proceeding leading to his dismissal.
4.
The majority opinion considered that the decision issued by the CNM was duly substantiated
and, consequently, this provided context to the categorization of the action of then Judge
Cordero Bernal as serious. On this basis, in the judgment, the Court did not declare the
State’s international responsibility for the violation of Articles 8, 9 and 23 of the American
Convention on Human Rights (hereinafter “the American Convention” or “the Pact of San
José).1
5.
On the contrary, as I will explain below, I consider that it should have analyzed judicial
independence — in its aspect of an enhanced guarantee of the tenure of judges – and the
principle of legality together. Indeed, the problem of the imprecision of the disciplinary
offense applied to Mr. Cordero Bernal is related not only to the alleged violation of the
principle of judicial independence in relation to the guarantee of tenure, but also to the
alleged violation of the principle of legality. This is because as it relates to disciplinary
sanctions imposed on judges, compliance with the principle of legality is of vital importance
Cf. Case of Cordero Bernal v. Peru. Preliminary objection and merits. Judgment of February 16, 2021. Series
C No. 421, paras. 86 to 91 and 96.
1