19. In the judgment, the Inter-American Court declared the State's responsibility
by considering that the arbitrary dismissal of Mr. Mina Cuero from his position
as a police officer and the lack of access to justice and effective judicial
protection constituted a violation of Articles 8(1), 8(2), 8(2)(b), 8(2)(c),
23(1)(c), and 25(1) of the American Convention on Human Rights, in relation
to Article 1(1) of the same international instrument; and also, the Court
considered a violation of Article 8(2)(h) of the Convention, but, it
acknowledged the existence of a violation of his employment stability, as part
of the right to work to which he was entitled. I agree with the considerations
expressed in the judgment, with the exception of those related to the direct
violation of the right to work based on Article 26, as previously mentioned.
20. It is worth noting that in paragraphs 107 to 111 of the judgment, it is reasoned
that Mr. Mina Cuero's termination disregarded due process guarantees, which
arbitrarily affected his tenure in the position of a police officer. The above
undoubtedly violates the State's duty to prohibit all forms of discrimination in
the exercise of every person's right to access public functions in conditions of
general equality in their country. But the same fact is classified as a violation
of the right to work that Mr. Mina Cuero would supposedly be entitled to,
without specifying any other factual circumstance that, on its own, would
violate the right protected by Article 26 of the Convention. It is not questioned
that the State's conduct fails to comply with the duty of non-discrimination
and the duty to adopt measures for the exercise of the right of every person
to have access to public functions under general equal terms, but the
judgment does not explain how that conduct autonomously resulted in a
violation of the victim's right to job stability. In conclusion, the judgment
establishes the violation of the right to work based on the same facts and
grounds used to establish the violation of the right to access public functions
under general equal terms, placing us within the same scope of protection.
Certainly, the same event can lead to the violation of one or more rights under
the Convention, but for such violations to be declared, it is necessary for those
rights to be justiciable before the Court.
21. In conclusion, unfortunately, as Medina and David have expressed, "the
majority's position undermines the effectiveness not only of the San Salvador
Protocol but also of Article 26 itself," 26 a conventional provision with a specific
content that the Court can and should develop in the cases it is called upon to
adjudicate.
22. This approach affects the legal certainty that an international court should
guarantee and the legitimacy of its decisions, since the argument provided
simply ignores a norm that does not grant the Court jurisdiction to address
potential violations of the right to work.
Patricia Pérez Goldberg
Judge
Pablo Saavedra Alessandri
Registrar
26
its own.
Medina and David, "The American Convention on Human Rights" (2022:28). The translation is
8