III. SCOPE OF THE DIFFERENTIATED PROTECTION AND SIMULTANEOUS
EFFECT OF THE RIGHTS CONTAINED IN ARTICLES 23(1)(C) AND 26 OF THE
CONVENTION
20.
Another of the novel aspects of this judgment relative to the precedents of
Dismissed Congressional Employees (2006) and Canales Huapaya et al. (2015) was the
declaration of the violation of the right of all citizens to have access to the public service
of their country, under general conditions of equality, contained in Article 23(1)(c). It is
a matter of a civic exercise, the participation of the citizenry in the polis from the
perspective of isocracy. This right is, in reality, a general right to participate in
government, the right of all to participate in the administration of public matters, which
includes access to the functions of public institutions. 34
21.
Traditionally, the Court has specified that the violation of Article 23(1)(c) is
closely tied to the guarantee of stability or irremoveability of the position of operators of
justice (as part of the principle of judicial independence). 35
22.
This conception is the product of an historical evolution of the Court’s case law
towards a desirable broadening of the scope of protection under Article 23(1)(c). In
Dismissed Congressional Employees v. Peru (2001), the Court’s hermeneutical exercise
placed a greater attachment to a literal reading of the article when it held that the
provision only protected the right to have access to, but not continuance in, public
service under conditions of equality. 36 There the Court considered that, although the
three magistrates had been dismissed for procedural errors during the processing of a
constitutional claim, they had “access” to public service and, therefore, it was not
appropriate to apply that provision.
23.
Since Apitz Barbera v. Venezuela (2008), the Court has broadened, by obiter
dictum, a margin of protection of the right regarding not only access, but also
continuance in public service. 37 This position would be materialized the following year in
Reverón Trujillo v. Venezuela (2009), 38 in which the Court noted that “the access in
equal conditions would constitute an insufficient guarantee if it were not accompanied
by the effective protection of the continuance in what is accessed.”
34
See Concurring Opinion of Judge Rodrigo Mudrovitsch in Guevara Díaz v. Costa Rica, op. cit., paras.
113 to 116.
35
Cf. Case of Reverón Trujillo v. Venezuela. Preliminary Objection, Merits, Reparations and Costs.
Judgment of June 30, 2009. Series C No. 197, para. 141; Case of the Constitutional Tribunal (Camba Campos
et al.) v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 28, 2013. Series
C No. 268, para. 222; Case of the Supreme Court of Justice (Quintana Coello et al.) v. Ecuador. Preliminary
Objection, Merits, Reparations and Costs. Judgment of August 23, 2013. Series C No. 266, para. 180; Case of
Colindres Schonenberg v. El Salvador. Merits, Reparations and Costs. Judgment of February 4, 2019. Series C
No. 373, paras. 94 and 95; Case of Martínez Esquivia v. Colombia. Preliminary Objections, Merits and
Reparations. Judgment of October 6, 2020. Series C No. 412, paras. 116 and 117; Case of Casa Nina v. Peru.
Preliminary Objections, Merits, Reparations and Costs. Judgment of November 24, 2020. Series C No. 419,
paras. 98 to 99; Case of Moya Solís v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment
of June 3, 2021. Series C No. 425, paras. 110 and 111 and Case of Cuya Lavy et al. v. Peru. Preliminary
Objections, Merits, Reparations and Costs. Judgment of September 28, 2021. Series C No. 438, paras. 160
and 161.
36
Cf. Case of the Constitutional Tribunal v. Peru. Merits, Reparations and Costs. Judgment of January
31, 2001. Series C No. 71, para. 103.
37
Cf. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Preliminary
Objection, Merits, Reparations and Costs. Judgment of August 5, 2008. Series C No. 182, para. 206.
38
Case of Reverón Trujillo v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment
of June 30, 2009. Series C No. 197, para. 108.
7