together in a single operative paragraph the violations of Articles 8(1), 23(1)(c) and 26, did
not show the unanimity of the Court in condemning the violations, or the partial discrepancy
in relation to Article 26.
8.
Second, in this case, the majority considered that it was appropriate to address the
arguments on the merits in a single section and to declare the violation of judicial guarantees,
the right to remain in the post under general conditions of equality and also the right to work
of Mr. Casa Nina in a single operative paragraph. As can be observed from the examination of
the merits, which analyzes the alleged violation of the right to work in only two paragraphs
(108 and 109), it is clear that this is only explained and justified by its relationship to the right
to remain in office under general conditions of equality. Thus, this not only demonstrates the
futility of the analysis of Article 26 of the Convention, but also highlights how the method of
grouping the alleged violations in a single chapter blurs the edges of the rights protected by
the Convention and weakens the quality of the Court’s arguments when substantiating the
alleged violations.
9.
This foregoing is the reason for this separate opinion because, although I agree with
the declaration of the violation of Articles 8(1) and 23(1)(c) and, consequently, voted in favor
of the third operative paragraph, I only did so due to the violation of those two articles. The
method used by the Court in this judgment did not allow me to adequately express my legal
position, because I consider that, not only is the justiciability of the right to work not legally
viable in the proceedings before the IACtHR, but even that, based on the criteria developed
in case law, the violation of Article 26 has not been proved in this case.
ii) The ambivalent interpretation of Article 23 in relation to the removal from
office of public officials
10.
In addition to the criteria that led me to accord my partial vote to the third operative
paragraph, I find it relevant to refer to some problematic elements of the analysis of the
merits, starting with the interpretation of the meaning and scope of Article 23 of the
Convention. In the instant case, the Court found that the violation of the right of access to
public office under general conditions of equality had been violated, considering that the
decision that terminated the appointment of Mr. Casa Nina was arbitrary, since it did not
respond to the permitted causes in order to ensure his independence in the office of provisional
prosecutor. Even though I agree with this reasoning, I should note that the Court overlooked
a very important debate that the case again brought to the table related not to Article 23(1)(c)
but rather to Article 23(2).
11.
The instant case elaborated on a jurisprudential position based on previous decisions
relating to judicial officials17 in relation to the criteria for removal from office, in which the
issue of the literal interpretation of the limitations to political rights contemplated in Article 23
was not addressed. The Court indicated, “[…] this specific guarantee for prosecutors, applied
in the same way as the protection mechanisms recognized for judges results in the following:
(i) that removal from office is exclusively due to the permitted causes, either by a proceeding
that complies with judicial guarantees or because the mandate has ended; (ii) that prosecutors
can only be dismissed because of serious disciplinary offenses or incompetence, and (iii) that
any process against prosecutors must be settled using fair, objective and impartial
proceedings, pursuant to the Constitution or the law, because the discretionary removal of
Cf. Case of López Lone et al. v. Honduras. Preliminary objection, merits, reparations and costs. Judgment of
October 5, 2015. Series C No. 302, and Case of Rico v. Argentina. Preliminary objection and merits. Judgment of
September 2, 2019. Series C No. 383.
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