PARTIALLY DISSENTING OPINION OF
JUDGE PATRICIA PEREZ GOLDBERG
INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF BENITES CABRERA ET AL. V. PERU
JUDGMENT OF OCTOBER 4, 2022
(Preliminary Objections, Merits, Reparations and Costs)
With full respect for the majority opinion of the Inter-American Court of Human Rights
(hereinafter “the Court”), I issue this partially dissenting opinion 1 with the purpose
of reiterating my position on the lack of jurisdiction of the Court to declare an
autonomous violation of the right to work on the basis of Article 26 of the American
Convention on Human Rights (hereinafter “the Convention”), which I already
expressed in Guevara v. Costa Rica and Mina Cuero v. Ecuador.
I.
PRELIMINARY QUESTION
I will first consider a preliminary question, which is that of explaining why, having
established the State’s international responsibility for violating Article 23 of the
Convention, it is not necessary to also declare a violation of its Article 26.
As the judgment states, the 184 victims were dismissed from the positions that they
held in the Congress during the government of Alberto Fujimori and were restricted
in their possibility of filing judicial remedies against their dismissals, which gave rise
to the declaration of the international responsibility of Peru for violating Articles 8(1)
and 25(1) of the Convention, read in conjunction with Article 1(1) thereof, to the
detriment of the victims.
In applying the principle iura novit curia, 2 the Court also found a violation of Article
23(1) of the Convention, which establishes the right to have access to public service,
under conditions of equality. Since that principle enables the determination of the
applicable right, provided that it is a norm within the Court’s jurisdiction, the facts
submitted to the Court describe a violation of the right of the victims to remain in
their positions, under general conditions of equality, by submitting them to a process
of dismissal from their positions that did not respect the guarantees of due process.
As is well-known, the Court, in Yatama v. Nicaragua, held that Article 23 establishes
the rights to participate in the conduct of public affairs, to vote, to be elected and to
have access to public service, which must be ensured by the states under conditions
of equality 3 and that the states must create the optimum conditions and mechanisms
to guarantee that those rights are effectively exercised. 4 The Court also indicated
that “the right to have access to public office, under general conditions of equality,
protects access to a direct form of participation in the design, implementation,
development and execution of the State’s political policies through public office. It is
understood that these general conditions of equality refer to the access of public
Article 65(2) of the Rules of Procedure of the Court: “Any Judge who has taken part in the consideration
of a case is entitled to append a separate reasoned opinion to the judgment, concurring or dissenting.
These opinions shall be submitted within a time limit to be fixed by the Presidency so that the other Judges
may take cognizance thereof before notice of the judgment is served. Said opinions shall only refer to the
issues covered in the judgment.”
2
Re fle ct io n s o n t h e in t e rn a t ion a l a p p lica t io n of t h is p rin cip le m a y b e fo u n d in m y p a rt ia lly d is s e n t in g
o p in io n in Min a Cu e ro v. Ecu a d or, p a ra . 1 , p o in t s 1 - 7 .
3
Cf. Para. 194.
4
Cf. Para. 195.
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