important normative instrument, which ultimately assists the regional courts with
respect to human rights protection.
137. In particular, I would highlight, the precedent issued by the Committee on the
Rights of Persons with Disabilities in 2019 in the context of an individual petition,
namely the decision in the case of V.F.C. v. Spain.83
138. Like the case of Mr. Guevara Díaz, this case concerned the dismissal of a public
servant, a member of the local police, who suffered permanent motor disability as a
result of a traffic accident. When he was dismissed, he was not offered the possibility
of being reassigned to a position appropriate to his disability.
139. Taking this factual framework into account, the Committee found that the
author's right to work had been violated in the context of discrimination with regard
to his continued employment. On that occasion, therefore, there was the additional
element of the need for reassignment.
140. In the case of Mr. Guevara Díaz, the factual framework is even simpler, given
that the position to which he aspired through the competitive public hiring process
was already clearly appropriate to his condition (and performed satisfactorily by him,
without any impact on his performance related to his specific disability) and did not
worsen between the period during which he held the position on an interim basis and
the period in which he qualified for the permanent position.
141. In summary, the analysis of the specific contours of the case, approached
from whatever perspective, leads to the logical conclusion that the victim’s right to
work and right to participate in government were violated by Costa Rica, which was
magnanimous enough to acknowledge the inadequacy of its behavior under the
Convention, thus publicly repudiating its actions.
V.
Conclusion
142. Based on the foregoing, I believe that in order to ensure reparation for the
violations suffered by Mr. Guevara is complete in light of the comprehensive
protection conferred by the Convention, the Court must find that Costa Rica has
violated not only the right to equality general, but also the right to work of a victim
with a disability who is deserving of special public inclusion policies, as well as his
right to equal participation in government. The state failed by arbitrarily treating his
disability as a characteristic detrimental to his ability to perform a public service job
accessible to all.
143. Beyond the result of the specific case, this concurring opinion seeks to
demonstrate that the immediate justiciability of ESCER, in accordance with Article 26
of the Convention, has been set forth unequivocally in the case law of the Court for
decades and ensures the indivisibility of human rights, the comprehensive protection
of victims, and the continental projection of a transnational discourse on the
protection of rights with the internal jurisdictions of the states, in a uniform language
shared by an open inter-American society of interpreters of the Convention, whose
hermeneutic contributions cannot be ignored.
144. Arguments contrary to this understanding have been duly considered by the
Court in recent decades and rejected. The imperatives of case law coherence and
integrity—which should be viewed as a chain novel by the judges of this Court, from
Committee on the Rights of Persons with Disabilities. CRDP/C/21/D/34/2015. Decision of April
29, 2019.
83
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