dismissal or separation from the position or that the separation is decided for reasons
that are discriminatory. 46 Another manifestation of “arbitrariness” 47 is when decisions
are taken without offering any grounds. Therefore, especially in the case of operators of
justice, the lack of grounds –the resulting arbitrary decision– is related to the specific
guarantee of stability and irremoveability since these guarantees are not respected when
the separation does not exclusively fall within the permitted causes during a procedure
that complies with the guarantees of due process (among them, the grounds). 48
28.
The Court in Casa Nina also considered that the “arbitrariness of the decision to
dismiss” had an additional effect with respect to the right to work in its aspect of “work
stability.” It, therefore, held that among the special guarantees that operators of justice
required was work stability as a basic condition for the independence necessary to
properly fulfill their procedural functions. 49 In that case, termination without grounds
other than “the needs of the service” interfered with this right that he had as a
provisional prosecutor. 50 In other words, what Article 26 protected was the employeeemployer work relationship that was abruptly terminated without any justification, other
than the mere mention of the needs of the service.
29.
However, in Mina Cuero v. Ecuador (2022), 51 the Court’s current judges extended
the application of Article 23(1)(c) to employees other than operators of justice (in that
case, a policeman). The standard that was used to find the international responsibility
of the State under Article 23 was that, unlike in previous cases, that provision was
applicable “”to all who exercise public functions, under a literal reading of Article
23(1)(c).” 52 Thus, when the continuance of public servants in their positions is arbitrarily
affected, they fall under the analysis of the right “to access, continuance or stability” in
the public positions or functions.
30.
Moreover, the right to work under Article 26 guarantees the right not to be
unfairly deprived of work. 53 Thus, it must be understood that “work stability” implies
that the employees must be ensured that they will only be removed or dismissed for
justifiable cause, which means that the employer must provide sufficient grounds to
impose this sanction with due guarantees and that the employees can appeal such
decision before the competent domestic authorities who must verify that the justification
is not arbitrary nor unlawful. 54 The Court has already held that an arbitrary dismissal is
one that is unjustified, one that lacks grounds for dismissal, 55 or one that is based on
discrimination 56 by a public or private employer.
Cf. Case of Reverón Trujillo v. Venezuela. Preliminary Objection, Merits, Reparations and Costs.
Judgment of June 30, 2009. Series C No. 197, para. 138.
47
The Court has stated that: “Decisions adopted by domestic bodies that could affect human rights […]
should be duly reasoned; otherwise, they would be arbitrary decisions.” Case of Yatama v. Nicaragua.
Preliminary Objections, Merits, Reparations and Costs. Judgment of June 23, 2005. Series C No. 127, para.
152 and Case of Martínez Esquivia v. Colombia. Preliminary Objections, Merits and Reparations. Judgment of
October 6, 2020. Series C No. 412, para. 106.
48
Cf. Case of Casa Nina v. Peru, op. cit., para. 80.
49
Cf. Case of Casa Nina v. Peru, op. cit., paras. 78, 108 and 109.
50
Cf. Case of Casa Nina v. Peru, op. cit., para. 109.
51
Cf. Case of Mina Cuero v. Ecuador. Preliminary Objection, Merits, Reparations and Costs. Judgment
of September 7, 2022. Series C No. 464.
52
Cf. Case of Mina Cuero, op. cit., para. 108.
53
Cf. Case of Lagos del Campo v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment
of August 31, 2017. Series C No. 340, para. 147.
54
Cf. Case of Lagos del Campo v. Peru, op. cit., para.150.
55
Cf. Case of Lagos del Campo v. Peru, op. cit., paras. 151 and 153.
56
Cf Case of San Miguel Sosa et al. v. Venezuela. Merits, Reparations and Costs. Judgment of February
8, 2018. Series C No. 348, para. 221
46
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