CONCURRING AND PARTIALLY DISSENTING OPINION OF
JUDGE PATRICIA PÉREZ GOLDBERG
INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF AGUINAGA AILLÓN v. ECUADOR
JUDGMENT OF JANUARY 30, 2023
(Merits, Reparations and Costs)
I am delivering this opinion, 1 with all due respect for the majority decision of the
Inter-American Court of Human Rights (hereinafter “the Court”), to reiterate my
stance that it is improper to hold the State of Ecuador internationally responsible for
violating the individual right to work, specifically the right to job stability, based on
Article 26 of the American Convention on Human Rights (hereinafter “the
Convention”).
I will first address the invocation of the principle of iura novit curia and then discuss
the merits of the case.
I.
Invocation of Article 26 of the Convention, in view of the principle of
iura novit curia
1. It is first necessary to clarify that neither the Inter-American Commission on
Human Rights (hereinafter “the Commission”) nor the representatives
expressly argued violation of Article 26 of the Convention. 2 The Court
nevertheless decided to rule on violation of the right to work, and more
specifically, the right to job stability, in injury of the alleged victim, under the
principle of iura novit curia.
2. This principle is recognized to have its origins in Roman law and has
particularly permeated the procedural systems in the countries of this region.
This is based the understanding that an inherent feature of the operation of
justice is that the courts “can-must” identify relevant regulations or principles
for ruling on a case, when the failure of the parties to claim these provisions
could lead to a mistaken decision or a hypothesis of denial of justice.
3. Although international judicial practice has made uneven use of this principle,
the Inter-American system stands out for invoking it habitually. The former
Permanent Court of International Justice, 3 the International Court of Justice 4
and the European Court of Human Rights 5 have also weighed the scope of this
1
Article 65.2 of the Rules of Procedure of the Court states: “Any Judge who has taken part in the
consideration of a case is entitled to append a separate reasoned opinion to the judgment, concurring or
dissenting. These opinions shall be submitted within a time limit to be fixed by the Presidency so that the
other Judges may take cognizance thereof before notice of the judgment is served. Said opinions shall
only refer to the issues covered in the judgment.”
2
Cf. Paragraph 94.
3
Lotus, judgment Nº 9, 1927, Series A, Nº1, page 31.
4
Fisheries Jurisdiction (United Kingdom v. Iceland), judgment of 25 July, 1974, paragraphs 17-18; Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), judgment of
27 June, 1986, paragraph 29.
5
Handyside v. United Kingdom, judgment of 7 December 1976, Series A No. 24, paragraph 41; Guerra
and others v. Italy, judgment of 19 February 1998, Reports 1998-I, p.13, paragraph 44; Philis v. Greece,