consider that, not only is the justiciability of the right to work
not legally viable in the proceedings before the IACtHR, but even
that, based on the criteria developed in case law, the violation
of Article 26 has not been proved in this case.
ii) The ambivalent interpretation of Article 23 in relation to the removal
from office of public officials
10. In addition to the criteria that led me to accord my partial vote
to the third operative paragraph, I find it relevant to refer to
some problematic elements of the analysis of the merits, starting
with the interpretation of the meaning and scope of Article 23 of
the Convention. In the instant case, the Court found that the
violation of the right of access to public office under general
conditions of equality had been violated, considering that the
decision that terminated the appointment of Mr. Casa Nina was
arbitrary, since it did not respond to the permitted causes in
order to ensure his independence in the office of provisional
prosecutor. Even though I agree with this reasoning, I should
note that the Court overlooked a very important debate that the
case again brought to the table related not to Article 23(1)(c)
but rather to Article 23(2).
11. The instant case elaborated on a jurisprudential position based
on previous decisions relating to judicial officials 17 in relation to
the criteria for removal from office, in which the issue of the
literal interpretation of the limitations to political rights
contemplated in Article 23 was not addressed. The Court
indicated, “[…] this specific guarantee for prosecutors, applied in
the same way as the protection mechanisms recognized for
judges results in the following: (i) that removal from office is
exclusively due to the permitted causes, either by a proceeding
that complies with judicial guarantees or because the mandate
has ended; (ii) that prosecutors can only be dismissed because
of serious disciplinary offenses or incompetence, and (iii) that
any process against prosecutors must be settled using fair,
objective and impartial proceedings, pursuant to the
Constitution or the law, because the discretionary removal of
prosecutors gives rise to the objective doubt about their effective
possibility of exercising their functions without fear of
reprisals.”18
12. To the contrary, in the recent decision in the case of Petro Urrego
v. Colombia, the Court reiterated the position taken in the case
of López Mendoza v. Venezuela19 according to which “[…] Article
23(2) of the American Convention makes clear that this
instrument does not allow any administrative body to apply a
sanction involving a restriction (for example, imposing a
17
Cf. Case of López Lone et al. v. Honduras. Preliminary objection, merits, reparations and costs.
Judgment of October 5, 2015. Series C No. 302, and Case of Rico v. Argentina. Preliminary objection and
merits. Judgment of September 2, 2019. Series C No. 383.
18
Cf. Case of Casa Nina vs. Peru. Preliminary objection, merits, reparations and costs. Judgment
of November 24, 2020. Series C No. 419, para. 80.
19
Cf. Case of López Mendoza v. Venezuela. Merits, reparations and costs. Judgment of September
1, 2011. Series C No. 233, para. 107.