3.
The Court in this case addresses for the first time the dismissal of a judge
from the perspective of the right to work from the standpoint of job stability,
protected by Article 26 of the American Convention on Human Rights (hereinafter
“the Convention”). The Court reiterates that justice operators also need to be given
“job stability” as a differentiated, reinforced guarantee of judicial independence,
unlike the guarantee of stability or tenure in their position (Article 23(1)(c) of the
Convention 4). As we have held in the past, every right has its own particular sphere
of protection, which is why multiple rights can apply simultaneously; they are not
mutually exclusive under a comprehensive, overall view of the protections of
persons. 5
4.
We concur with the judgment’s declaration that the State is responsible for
violating the right to judicial guarantees, the right to judicial protection, the right to
participate in government, and the right to work enshrined in Articles 8, 23, 25 and
26 of the Convention, read in conjunction with the State’s obligation to respect the
rights set forth in Article 1. The judgment, however, does not address the legal
implications of such an act of dismissal—which was grossly arbitrary in the specific
context of the mass removal of judges from the three highest courts—from the
standpoint of Convention Article 9, and we feel that this omission weakens the
analysis of the case.
5.
The majority held that, “...due to the type of damage caused to the separation
of powers and the arbitrary nature of the action by the National Congress, there is
no need to undertake a detailed analysis of the parties’ arguments regarding whether
the dismissal decision was a punitive act, and therefore...” the judgment did not
examine “the possible scope of the principle of freedom from ex post facto laws”
given in Article 9 of the Convention. 6 We believe that the Court should in fact have
undertaken an analysis of the arguments and motions put forth by the Inter-American
Commission and the representatives of the victim, declaring violation of the principle
of freedom from ex post facto laws because the act by which the Congress removed
the victim from his position as a member of the TSE took place outside the bounds
of the Constitution and laws, which constituted a “de facto sanction.” The Congress
dismissed the victim under an ad hoc procedure not provided under the Constitution
or laws of Ecuador.
et al. v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 29, 2016.
Series C No. 327, para. 105; Case of Acosta et al. v. Nicaragua. Preliminary Objections, Merits, Reparations
and Costs. Judgment of March 25, 2017. Series C No. 334, para. 171; Case of San Miguel Sosa et al. v.
Venezuela. Merits, Reparations and Costs. Judgment of February 8, 2018. Series C No. 348, para. 207;
Case of Colindres Schonenberg v. El Salvador. Merits, Reparations and Costs. Judgment of February 4,
2019. Series C No. 373, paras. 68 and 69; Case of Villaseñor Velarde et al. v. Guatemala. Merits,
Reparations and Costs. Judgment of February 5, 2019. Series C No. 374, paras. 75, 83 and 84; Case of
Rico v. Argentina. Preliminary Objection and Merits. Judgment of September 2, 2019. Series C No. 383,
paras. 54, 55 and 56; Case of Urrutia Laubreaux v. Chile. Preliminary Objections, Merits, Reparations and
Costs. Judgment of August 27, 2020. Series C No. 409, paras. 104 to 110; Case of Cordero Bernal v. Peru.
Preliminary Objection and Merits. Judgment of February 16, 2021. Series C No. 421, paras. 71 and 72;
Case of Ríos Avalos et al. v. Paraguay. Merits, Reparations and Costs. Judgment of August 19, 2021. Series
C No. 429, para. 85; Case of Cuya Lavy et al. v. Peru. Preliminary Objections, Merits, Reparations and
Costs. Judgment of September 28, 2021. Series C No. 438, para. 123, and Case of Nissen Pessolani v.
Paraguay. Merits, Reparations and Costs. Judgment of November 21, 2022. Series C No. 477, para. 57.
4
Cf. Case of Aguinaga Aillón v. Ecuador, supra, para. 89.
Cf. Our joint reasoned opinion in the Case of Benites Cabrera et al. v. Peru. Preliminary Objections,
Merits, Reparations and Costs. Judgment of October 4, 2022. Series C No. 465, paras. 33 to 43.
5
6
Cf. Case of Aguinaga Aillón v. Ecuador, supra, para. 89.
2