94. Accordingly, the Commission concluded that the State violated the rights to strike and to
work contained in Article 26 of the American Convention, in relation to the obligations established
in Articles 1(1) and 2 thereof, to the detriment of the 65 alleged victims.
95. In his final arguments, the representative agreed with the Commission, considering that
the State did not respect the right to strike and that the dismissals affected the alleged victims’
right to work.
96. The State argued that, according to the ILO Committee on Freedom of Association, the
recognition of the right to engage in strike action generally admits as possible exceptions only
those that could be imposed on certain types of public servants and workers in essential services,
in the strict sense of the term. It emphasized that all civil servants working in the Judicial Branch
are considered as public servants who exercise functions on behalf of the State, and therefore
their right to strike may be restricted or suspended. It further argued that, although Article 243
of the Labor Code concerning essential services that are subject to restrictions of the right to strike
does not include the administration of justice, Article 4 (d) of the Law on Unionization and Strike
Regulations for State Employees establishes that the administration of justice and its auxiliary
institutions are essential public services. Thus, it considered that the restriction imposed on
Judiciary workers to go on strike is legitimate and complies with international standards. It added
that, as a compensatory measure, Article 4(e) of the Law of Unionization and Strike Regulations
for State Employees establishes the possibility of workers resorting to conciliation and arbitration
procedures in order to assert their labor claims.
97. Regarding the proportionality of the requirement of the vote of two-thirds of the workers for
a strike to be declared lawful, it argued that this requirement was not applicable to employees of
the Judiciary, since the latter could not go on strike, but had to resort directly to the
aforementioned arbitration procedure. It pointed out that this requirement, established by Article
241(c) of the Labor Code, was reformed by means of Decree No. 13-2001, which reduced the
voting requirement from two-thirds to half plus one. It claimed that this reform ensures that the
declaration of strike legality is more accessible to workers. It added that, since 2016, a bill was
submitted with a new reform to Article 241 of the Labor Code, further reducing the quorum
required to declare a strike legal.
98. With respect to the right to work, the State reiterated that, as public officials in an essential
service, the workers of the Judicial Branch were restricted in their access to strike action, for which
reason they had to resort to compulsory arbitration as a compensatory measure. It indicated that
arbitration is an expeditious, objective and impartial process that complies with the guidelines
established by the Committee on Freedom of Association. However, the workers decided to hold
a de facto and illegal strike, for which reason the sanction of dismissal was lawful and based on
legal norms consistent with international standards. For all of the above reasons, the State
considered that it was not responsible for the violation of Article 26 of the Convention in relation
to Articles 1(1) and 2 of the same instrument.
B.
Considerations of the Court
99. The Court will analyze the arguments presented by the parties and the Commission and to
this end considers it pertinent to recall the content and scope of Article 26 of the Convention (1).
It will then examine the right to strike (2) and its impact on the right to work in the specific case
(3).
B.1. General considerations regarding the content and scope of Article 26 of the
American Convention
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