SEPARATE JOINT OPINION OF JUDGES
EDUARDO FERRER MAC-GREGOR POISOT AND RODRIGO MUDROVITSCH
CASE OF BENITES CABRERA ET AL. V. PERU
JUDGMENT OF OCTOBER 4, 2022
(Preliminary Objections, Merits, Reparations and Costs)
I. INTRODUCTION
1.
In this case, the Inter-American Court of Human Rights (hereinafter “the Court”)
analyzed the arbitrary dismissal of 184 employees under the so-called “streamlining of
personnel” process, implemented during the government of Alberto Fujimori, and their
impediment to file judicial remedies regarding their dismissals. The Court declared the
international responsibility of the State for violating the rights established in Articles
8(1), 23(1)(c), 25(1) and 26 of the American Convention on Human Rights (hereinafter
“the Convention”), read in conjunction with Article 1(1) thereof.
2.
The judgment addresses the case in the light of the case law on the direct and
autonomous justiciability of economic, social, cultural and environmental rights (ESCER)
that the Court has been developing since 2017. The Court reaffirms its jurisdiction to
hear and resolve violations of the ESCER contained in Article 26 of the Convention,
rejecting the preliminary objection on the lack of material jurisdiction presented by the
State. 1 The Court declared, on the merits, international responsibility for violating the
right to work -with regard to work stability-, which contrasts with the two precedents
that presented the same context and similar facts: Dismissed Congressional Employees
et al. (2006) 2 and Canales Huapaya et al. (2015), 3 both against Peru.
3.
Another novel aspect of this judgment -not contemplated in those two
precedents- is the infringement, through the use of the principle iura novit curia, of the
right contained in Article 23(1)(c) of the Convention. In addition to protecting the right
to work found in Article 26 (expressly alleged as violated by the Inter-American
Commission and the representatives of the victims), the Court also found it necessary,
due to the arbitrariness of the dismissals of the 184 employees, to protect their stability
in their positions or in the public service, because of their status as public employees.
4.
We agree with the differentiated manner in which both matters were treated in
the judgment. 4 We issue this separate opinion to underscore and to consider more
deeply some elements of the case that, in our opinion, represent important advances in
inter-American jurisprudence from the perspective of the violation of work stability as a
component of the right to work protected by Article 26 and from the perspective of the
violation of the right to have access to public service, under general conditions of
equality, referred to in Article 23(1)(c). In effect, the most appropriate hermeneutic of
the Convention is that which takes it as a whole, without invoking one human right to
Cf. Case of Benites Cabrera et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs.
Judgment of October 4, 2022. Series C No. 465, para. 48 and Operative Paragraph 5.
2
Cf. Case of the Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru. Preliminary
Objections, Merits, Reparations and Costs. Judgment of November 24, 2006. Series C No. 158.
3
Cf. Case of Canales Huapaya et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs.
Judgment of June 24, 2015. Series C No. 296.
4
In other words, the Inter-American Court analyzed, in separate chapters, the facts that gave rise to
the infringement of Article 23(1)(c) and those that gave rise to the international responsibility for violating
Article 26.
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