the violations in the operative paragraphs and also when
addressing the allegations in a single chapter.
6. First, as I have pointed out in the cases of the National
Association of Discharged and Retired Employees of the National
Tax Administration Superintendence (ANCEJUB-SUNAT) v.
Peru15 and Hernández v. Argentina,16 the Court has randomly
and without justification, modified its method of presenting the
operative paragraphs of its decisions, seeking to render invisible
the internal disagreements concerning the scope of Article 26.
7. Furthermore, this method, which groups together in a single
operative paragraph the declaration of all the violations, avoids
revealing the divergent positions concerning the justiciability of
the ESCER to the detriment of the legitimacy conferred by the
unanimous position of the Court in relation to the other rights
that were violated. I refer to the fact that, although the principal
legitimacy, or legitimacy of origin, of the Court’s decisions is
based on the majority established in the Rules of Procedure, this
is evidently perceived more clearly when all the judges are in
agreement with the final decision. In this case, the fact of
grouping 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
15
Cf. Case of the National Association of Discharged and Retired Employees of the National Tax
Administration Superintendence (ANCEJUB-SUNAT) v. Peru. Preliminary objections, merits, reparations
and costs. Judgment of November 21, 2019. Series C No. 394. Partially dissenting opinion of Judge
Humberto Antonio Sierra Porto, para. 6.
16
Cf. Case of Hernández v. Argentina. Preliminary objection, merits, reparations and costs.
Judgment of November 22, 2019. Series C No. 395. Partially dissenting opinion of Judge Humberto
Antonio Sierra Porto, para. 17.