modality, which prevents expressing disagreement exclusively with the direct
justiciability of ESCER, weakens the legal thrust of the decision against the main
violation. My point is that, as a consequence of grouping together the violation of the
right to work and the prohibition of discrimination, the decision was not made
unanimously, despite the fact that all the judges of the Court agree that Costa Rica
is responsible internationally for preventing Mr. Guevara Díaz from accessing the
position of miscellaneous worker due to his disability.
11.
Indeed, although operative paragraph 2—covering violations of articles 24 and
26, read in conjunction with Article 1(1)—is declared unanimously, it is stated that
“Judge Humberto Antonio Sierra Porto and Judge Patricia Pérez Goldberg dissent with
regard to violation of article 26 of the American Convention on Human Rights, read
in conjunction with Article 1(1), as expressed in their opinions.” Thus, while my
disagreement and that of Judge Pérez are noted, the focus of the judgment is lost,
when the appropriate thing to do would be to allow the Court to vote separately on
the violation of Article 26, making clear the full consensus on the other violations.
12.
I insist that the Court must not lose its focus on identifying and establishing
legal consequences for State conduct that generates breaches of obligations under
the Convention: In this case, that is, the actions of State agents that prevented Mr.
Guevara Díaz from accessing public office due to his disability. This must be made
clear as an expression of the will of the Court. and the fact that there may be
disagreements regarding accessory elements of the decision must be handled
separately and tangentially. Although it is true that human rights are interdependent
and indivisible, when justifying its decision, the Court must analyze the factual
circumstances and the obligatory contents related directly to the core of the main
violation of the case, not examine the entire text of the Convention and other
international instruments that may have an indirect or eventual relationship with the
case. This is what makes it possible to give rigor, certainty, and clarity to interAmerican standards and thereby guarantee further their validity in domestic law
through review of compliance with human rights conventions.
Humberto Antonio Sierra Porto
Judge
Pablo Saavedra Alessandri
Registrar
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