on Labour Relations (Public Service), 1978.9 Article 9 of the Convention recognizes
the civil and political rights of public employees and indicates that: “Public employees
shall have, as other workers, the civil and political rights which are essential for the
normal exercise of freedom of association, subject only to the obligations arising
from their status and the nature of their functions.” Also, Article 8 of this Convention
establishes that the settlement of disputes, “shall be sought, as may be appropriate
to national conditions, through negotiation between the parties or through
independent and impartial machinery, such as mediation, conciliation and
arbitration, established in such a manner as to ensure the confidence of the parties
involved.”
26.
With regard to the instant case, Mr. Casa Nina, as a prosecutor which is a public
official, also receives a protection of labor law in the exercise of his functions, and
the analysis made in the judgment is appropriate. Taking into account the provisions
of Convention No. 151, it is important to emphasize the protection of the civil and
political rights of public officials and the recommendation as regards the settlement
of disputes concerning working conditions or the permanence in office using systems
of collective bargaining or others such as mediation. Owing to his dual condition as
a public official and a prosecutor, the victim enjoyed the essential legal protection
to be able to exercise his functions with independence, a guarantee that is
intrinsically related to the democratic rule of law.
27.
The foregoing is complemented by the United Nations “Guidelines on the Role of
Prosecutors” mentioned in the judgment, which establish the status and conditions
of services of those who are appointed as prosecutors, establishing that “States shall
ensure that prosecutors are able to perform their professional functions without
intimidation, hindrance, harassment, improper interference or unjustified exposure
to civil, penal or other liability."10 The principle of independence of the public
functions of the prosecutor may also be interpreted based on the “Basic Principles
on the Independence of the Judiciary” adopted by the Seventh United Nations
Congress held in Milan from August 26 to September 6, 1985.11
IV.
28.
Conclusion
The Court should not lose sight of the fact that its primary function is to hear cases
that require the interpretation and application of the provisions of the Convention
when these are submitted to it in order to decide whether there has been a violation
of a protected right or freedom, and to rule that the injured party should be ensured
the enjoyment of his violated right or freedom. In this regard, the Court has a
vocation to do justice in concrete cases within the limits established by the law of
treaties. But it also has a function of contributing to achieve the purposes of the
Convention and that entails responding to the problems from which our societies
suffer. It is important to consider that the Court’s legitimacy is founded on the
solidity of its reasoning, on its compliance with the law and on the prudence of its
rulings.
9
International Labour Organization. Convention 151 on Labour Relations (Public Service), 1978. Available at
https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C151.
10
Guidelines on the Role of Prosecutors. Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders,
Havana,
Cuba,
August
27
to
September
7,
1990.
UN
Doc.
A/CONF.144/28/Rev.1,
para.
4.
https://www.ohchr.org/en/professionalinterest/pages/roleofprosecutors.aspx.
11
“Basic Principles on the Independence of the Judiciary,” available at: https://www.ohchr.org/en/
professionalinterest/pages/independencejudiciary.aspx.