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. 1

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