1,117 employees who were dismissed from the supreme legislative body by resolutions
issued in 1992 at the time of the so-called “Government of National Emergency and
Reconstruction.”
5.
The Court points out in its judgment that, although they have same context, the
three cases differ because in the latest of them “only 20 of the alleged victims […] filed
writs of amparo before judicial bodies, while there is no information on actions filed by
the remaining persons, and […] to date, the State has adopted measures directed to
repair 140 of the 184 alleged victims.” 26 It was, perhaps, these elements that led the
Court to rule on this occasion on the arbitrary nature of the dismissals and not to limit
its analysis exclusively on the lack of remedies to contest them, as it did in Aguado Alfaro
and Canales Huapaya.
6.
I consider this approach not only to be pertinent, but also an important advance.
The protection of the right to job stability of public officials is fundamental, not only for
the implications that it has with respect to the employees but also because the arbitrary
dismissal of public servants in our region affects the balance of powers and institutional
stability. What I do not share, however, is that this exercise was developed on an
analysis of Article 26 of the Convention and also because this provision is excluded from
the Court’s contentious jurisdiction, as has been pointed out in other recent opinions, 27
the analysis of the facts should have been made under Article 23(1)(c) of the Convention.
7.
In the present judgment, in addition to substantiating violations to the rights to
judicial guarantees and to judicial protection, which I fully share, the Court held that
there was a violation to the right to work of Article 26 and the right to have access to
public service, under conditions of equality, of Article 23(1)(c). The Court held that Peru
violated the right to work because 184 of the victims in the case “were removed from
their positions without having been offered justifiable grounds and because they were
barred from filing a writ of amparo to contest their dismissals.” 28 In addition, it indicated
that the irregularity of the dismissals was indirectly recognized by the State when it
created the National Registry of Irregularly Dismissed Employees, which compensated
various former employees, including some of the victims in this case. 29
8.
On the other hand, by invoking the principle iura novit curia, the Court found that
the dismissal of the 184 congressional employees did not respect the criteria of
objectivity and reasonability required by Article 23(1)(c), which sets out the right to
have access to public service, under conditions of equality, and, consequently, was
arbitrary. 30 In particular, it stated that “the dismissal of the 184 persons listed in Annex
1 of this judgment did not adhere to the guarantees of due process, which arbitrarily
affected their continuance in their positions.” 31 The Court, thus, focused its analysis of
Case of Benites Cabrera et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs.
Judgment of October 4, 2022, para. 91.
27
Cf. Case of the Former Employees of the Judiciary v. Guatemala. Preliminary Objections, Merits and
Reparations. Judgment of November 17, 2021. Series C No. 445. Concurring opinion of Judge Humberto
Antonio Sierra Porto; Case of Palacio Urrutia et al. v. Ecuador. Merits, Reparations and Costs. Judgment of
November 24, 2021. Series C No. 446. Concurring opinion of Judge Humberto Antonio Sierra Porto; Case of
Pavez Pavez v. Chile. Merits, Reparations and Costs. Judgment of February 4, 2022. Series C No. 449.
Concurring opinion of Judge Humberto Antonio Sierra Porto.
28
Case of Benites Cabrera et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs.
Judgment of October 4, 2022, para. 115.
29
Ibid.
30
Case of Benites Cabrera et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs.
Judgment of October 4, 2022, paras. 119 to 123.
31
Case of Benites Cabrera et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs.
Judgment of October 4, 2022, para. 122.
26
3