CONCURRING OPINION OF
JUDGE RICARDO C. PÉREZ MANRIQUE
CASE OF CASA NINA V. PERU
JUDGMENT OF NOVEMBER 24, 2020
(Preliminary objections, merits, reparations and costs)
I.
Introduction
1.
The judgment declares the violation of Articles 8(1), 23(1)(c) and 26 of the American
Convention on Human Rights (hereinafter “the Convention”), among others, owing
to the violation of judicial guarantees, the right to remain in the post under general
conditions of equality and the right to work. The case relates to a series of violations
that took place in the context of the procedure that culminated with the removal of
Julio Casa Nina from the post of Provisional Deputy Prosecutor of the Second
Criminal Prosecution Office of the province of Huamanga, Ayacucho, Peru.
2.
In its judgment, the Inter-American Court of Human Rights (hereinafter “the
IACtHR” or “the Court”) rejected the preliminary objections relating to the fourth
instance and to the Court’s lack of jurisdiction to examine arguments concerning the
right to work, and concluded that the Republic of Peru was responsible for the
violation of the right to judicial guarantees, the right to remain in the post under
general conditions of equality and the right to work, in relation to the obligations to
respect and ensure those rights.
3.
In this opinion, I concur with the decisions taken in the judgment and submit this
opinion in order to: (i) analyze the way in which I consider that the IACtHR should
address cases that involve violations of the economic, social, cultural and
environmental rights, based on the universality, indivisibility, interdependence and
interrelationship of all human rights as grounds for their justiciability, and (ii)
examine the protection of participation in public service, its relationship with the
human right to work, and the independence of prosecutors under the democratic
rule of law.
II.
The issue of the justiciability of the economic, social, cultural and
environmental rights. Jurisdiction of the IACtHR
a) Objection of lack of jurisdiction ratione materiae
4.
The State indicated that the IACtHR is unable to assume jurisdiction with regard to
the presumed violation of a right or freedom that is not included in the protection
system of the Convention and the Protocol of San Salvador. Therefore, it submitted
that the Court was not competent to rule on the violation of the right to work under
Article 26 of the Convention because the economic, social, cultural and
environmental rights cannot be submitted to the system of individual petitions
(paragraph 22 of the judgment). For its part, the Inter-American Commission on
Human Rights (hereinafter “the Commission”) and the representative asked the
Court to reject the objection because the rights should be understood integrally and
are enforceable in all cases (paragraphs 24 and 25 of the judgment).
5.
Ultimately, the Court rejected the preliminary objection and reaffirmed “its