31.
The judgment in this case not only declares an autonomous violation of the right
to work under Article 26, expressly invoked both by the Commission and by the
representatives of the victims, but also, by means of iura novit, it declares the violation
of the right established in Article 23(1)(c) since “the dismissal of 184 persons […], did
not adhere to the guarantees of due process, which affected their continuation in their
positions, under conditions of equality.” 57
32.
The above was based on the following considerations:
120. Article 23(1)(c) of the Convention establishes the right to have access, under general conditions
of equality, to public service. The Court has interpreted that access under conditions of equality would
be an insufficient guarantee if it were not accompanied by the effective protection of continuance in the
position, 58 which means that the procedures of appointment, promotion, suspension and dismissal of
public officials must be objective and reasonable; in other words, they must respect the guarantees of
due process.
121. The Court has repeatedly ruled on this right in relation to the procedures used to remove public
officials and has held that it is related to the guarantee of stability or irremoveability in the position.
122. In any event, the Court notes that a literal reading of the guarantees contained in Article 23(1)(c)
are applicable to all those who exercise public functions. Therefore, when the continuance of persons in
the exercise of those functions is arbitrarily affected, their political rights are not recognized.
33.
We agree with this new global and integral dimension that were given to the
violations in this case, which reinforces the precedent established in Casa Nina and which
shall surely serve as a national and international reference for understanding the scope
of the eventual international responsibility of the States. Although the premise of all
rights is that they are interdependent and indivisible, it should not be forgotten that each
one of the rights contained and protected by the Convention has a defined and distinct
field of application and, therefore, of guarantee. We believe that it is evident that the
concepts of “job/function stability” (Article 23) should not be confused with “work
stability” (Article 26).
34.
In general, the Court’s case law has specified that, in the first place, Article
23(1)(c) protects the right to have “access to public service under general conditions of
equality and protects the access to a direct form of the participation in the design,
implementation, development, and execution of the state’s political guidelines through
public service.” 59 Secondly, it understands that these general conditions of equality refer
both to access to public service whether by popular election, by appointment or by
57
Cf. Case of Benites Cabrera et al. op. cit., paras. 122 and 123.
Cf. Case of Reverón Trujillo v. Venezuela. Preliminary Objection, Merits, Reparations and Costs.
Judgment of June 30, 2009. Series C No. 197, para. 138 and Case of Cuya Lavy et al. vs. Peru, supra, para.
159.
59
Case of Reverón Trujillo v. Venezuela, op. cit., para. 139; Case of Chitay Nech et al. v. Guatemala.
Preliminary Objections, Merits, Reparations and Costs. Judgment of May 25, 2010. Series C No. 212, footnote
120; and Indefinite Presidential Re-election in Presidential Systems in the context of the Inter-American
System of Human Rights (Interpretation and scope of Articles 1, 23, 24 and 32 of the American Convention
on Human Rights, XX of the American Declaration of the Rights and Duties of Man, 3(d) of the Charter of the
Organization of American States and of the Inter-American Democratic Charter). Advisory Opinion OC-28/21
of June 7, 2021. Series A No 28, para. 64.
58
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