14.
In other words, the three judgments have common facts that resulted in human
rights violations. However, as we shall see, the scope of international responsibility has
changed due to the Court’s current jurisprudential advances.
15.
It should be noted that, in Dismissed Congressional Employees (Aguado Alfaro et
al.) of 2006, the representatives of the victims alleged the infringement of the right to
work under Article 26 of the Convention. 29 However, the judgment considered that “the
purpose of the judgment is not to determine the alleged arbitrary nature of the alleged
victims’ dismissals or their non-reinstatement, […] The Court has declared that the State
violated Articles 8(1) and 25 of the Convention, relating to judicial guarantees and
judicial protection, […] owing to the lack of certainty of the proceeding they should or
could resort to in order to reclaim the rights they considered violated, and to the
existence of normative and practical impediments to an effective access to justice.” 30
16.
The Court, however, left clear in that case that it was “aware that the violation of
these guarantees necessarily had prejudicial consequences for the alleged victims, to
the extent that any dismissal has consequences for the exercise and enjoyment of other
rights inherent in labor relations.” 31 Subsequently, Canales Huapaya et al. (2015)
essentially followed what had been decided in Dismissed Congressional Employees,
without considering the possible harm to the right to work.
17.
In Benites Cabrera et al., which motivates this joint separate opinion, the
transcendental step taken is to materialize the consideration previously omitted
regarding the right to work: the determination of the consequences on the employees
due to the arbitrariness of their dismissals. While, as in the two prior judgments, there
were normative obstacles that directly impacted the access to justice (Articles 8 and 25
of the Convention), that harm also had an effect on other rights since the employees
were deprived not only of access to a judicial remedy, but also to what they claimed
through this recourse: their right to work.
18.
The Court concludes that the 184 alleged victims were employees of the Peruvian
Congress who were dismissed arbitrarily and that the dismissals were an infringement
to work stability, as a component of the right to work of which they were holders. 32
Definitively, “the State proceeded in an arbitrary manner in dismissing the former
congressional employees identified in this judgment because they were removed from
their positions without having been offered justifiable reasons and because they were
barred from filing an action of amparo to contest their dismissals.” 33
19.
However, respect for the integral dimension of the human rights of the
Convention is demonstrated in the judgment beyond the application of Article 26 to the
specific case. Global attention to the Convention requires the concomitant application of
Article 23(1)(c), which protects the right of all citizens to have access to the public
service of their country, under general conditions of equality. We will now explain the
different scopes of protection of the overlapping articles in this case, emphasizing the
importance of their simultaneous application.
Cf. Case of the Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru. Preliminary
Objections, Merits, Reparations and Costs, op. cit., para. 134(c).
30
Cf. Case of the Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru. Preliminary
Objections, Merits, Reparations and Costs. Judgment of November 24, 2006, op. cit., para. 136.
31
Cf. Case of the Dismissed Congressional Employees (Aguado Alfaro et al.) v. Peru, op. cit., para. 136.
32
Cf. Case of Benites Cabrera et al. v. Peru, op. cit., para. 118.
33
Cf. Case of Benites Cabrera et al. v. Peru, op. cit., para. 115.
29
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