bodies of the inter-American system may formulate on the reports that the States
present on the progressive development of ESCER. And the other –applicable only
with respect to trade unions rights and the right to education– the eventual violation
of which may be heard by the Court.
The Court here declares the responsibility of the State by considering that the 184
victims were the object of the violation of their rights to be heard with due guarantees
and within a reasonable period by a competent judge, independent and impartial,
and to have a simple and prompt recourse before judges or courts, as stated in
Articles 8(1) and 25(1) of the Convention, read in conjunction with the obligations to
respect and guarantee the rights contained in Article 1(1) thereof, and also a violation
of Article 23(1)(c) of the Convention as the Court found a violation of their work
stability, as a component of the right to work of which they were holders. I share the
considerations expressed in the judgment, with the exception of those that refer to
the direct violation of the right to work on the basis of Article 26, as has been
indicated.
As Judge Vio Grossi has stated, 21 “it is for the Court to interpret and apply the
Convention; in other words, state what the law expresses and not what it wants the
law to express.” This implies that no matter how noble and well-intentioned a
proposal might be, a court can only act within the framework of its attributions.
Definitively and unfortunately, as Medina and David have written, “the position of the
majority undermines the effectiveness not only of the Protocol of San Salvador but
also of Article 26 itself.” 22 That norm has a specific content that the Court can and
should develop in the cases that it is called upon to hear. This manner of proceeding
affects both the juridical security that an international court must guarantee and the
legitimacy of its decisions since the arguments offered simply ignore a norm that
does not grant jurisdiction to the Court to hear eventual violations to the right to
work.
Patricia Pérez Goldberg
Judge
Pablo Saavedra Alessandri
Registrar
21
22
Dissenting opinion of Judge Eduardo Vio Grossi in Gómez Murillo et al. v. Costa Rica.
MEDINA AND DAVID, “The American Convention on Human Rights” (2022:28).
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