Salvador indicates that: “[a] right which is recognized or in effect in a State by virtue
of its internal legislation or international conventions may not be restricted or
curtailed on the pretext that this Protocol does not recognize the right or recognizes
it to a lesser degree.” In application of this provision, the Monitoring Mechanism of
the Working Group on the Protocol of San Salvador has been established responsible
for defining the indicators that should be included in the reports of the States Parties
and for monitoring compliance with the obligations under the Protocol.
6
12.
In my opinion, based on the foregoing and its precedents, it is necessary to conclude
that it is not possible to restrict access to inter-American justice in the case of alleged
violations of economic, social, cultural and environmental rights. That position would
even be contrary to the principle of the pro persona interpretation of human rights
established in Article 29 of the Convention understanding this as a hermeneutic tool
from the systemic perspective of the inter-American system for the protection of
human rights.
13.
I have also noted that the Protocol of San Salvador, while developing the content of
the economic, social and cultural rights, expressly prescribes the use of the system
of individual petition in Article 19(6) for the rights to work and education.
Consequently, in those cases, it is not necessary to make any effort to argue this,
because the Court’s competence results from the text of the treaty.
14.
In addition, it should be borne in mind that Part II of the Convention indicates in its
Article 44 that: “Any person or group of persons, or any nongovernmental entity
legally recognized in one or more member states of the Organization, may lodge
petitions with the Commission containing denunciations or complaints of violation of
this Convention by a State Party.” Meanwhile, Article 48 indicates that: “[w]hen the
Commission receives a petition or communication alleging violation of any of the
rights protected by this Convention, it shall proceed as follows … .” Similarly, Article
62(3) of the Convention indicates that: “[t]he jurisdiction of the Court shall comprise
all cases concerning the interpretation and application of the provisions of this
Convention that are submitted to it …” (underlining added).
15.
The analysis of the preceding articles reveals that: (1) the civil, political, economic,
social, cultural and environmental rights may be submitted to the consideration of
both organs of protection; (2) the Commission and the IACtHR can have competence
over the cases lodged in this regard; (3) no distinction is made between civil,
political, economic, social, cultural and environmental rights as regards their
protection, and (4) to claim that the inter-American organs of protection can only
examine the civil and political rights would be contrary to the notions of universality,
indivisibility, interdependence and interrelationship of the human rights, and entail
a fragmentation of the international protection of the individual that would be directly
detrimental to human dignity, which is the basis and purpose of human rights
16.
In the case of the removal of Sr. Casa Nina, it is argued that there was a failure to
provide an objective resolutive condition prior to his appointment to office
establishing the termination of his appointment as a provisional prosecutor. Thus,
the Court understood " that Mr. Casa Nina occupied the post without the security of
tenure,6 that is without an essential safeguard to ensure his independence”
The witness Rita Arleny Figueroa Vásquez stated that “one of the rights of prosecutors is permanence in
the service until they are seventy (70) years of age, pursuant to the Peruvian Constitution; however, in the case of
the non-career provisional prosecutor this benefit cannot be required, because their permanence depends on the