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Report No. 116/18 and to order the State, as measures of reparation, those included in thisreport.IIPROCEEDINGS BEFORE THE COURT6.Notification of the State and the presumed victim. The submission of the case wasnotified to the State and the presumed victim in communications of August 27, 2019.7.Brief with pleadings, motions and evidence. On October 31, 2019, Julio Casa Ninapresented his brief with pleadings, motions and evidence (hereinafter “the pleadings andmotions brief”), pursuant to Articles 25 and 40 of the Court’s Rules of Procedure. Thepresumed victim was in substantial agreement with the allegations made by the Commissionand, in addition, indicated that the State had violated his right to work. Also, he asked thatthe Court order the State to adopt various measures of reparation and to reimburse certaincosts and expenses and, in this regard, he identified his wife, Mercedes Maritza SalinasMamani, and his daughters, Yessenia Mercedes Casa Salinas and Lourdes Maritza CasaSalinas, as injured parties.8.Answering brief. On February 4, 2020, the State submitted to the Court its briefanswering the submission of the case in the Merits Report of the Inter-American Commissionand the pleadings and motions brief of the presumed victim (hereinafter “the answeringbrief”).3 In this brief, the State filed two preliminary objections and contested the allegedviolations and the requested measures of reparation. 4 It asked that the Court declare theCommission’s claims without merit and find that the State was not responsible for theviolations indicated in the Merits Report.9.Observations on the preliminary objections. In briefs of March 22 and 25, 2020, thelawyer, Yessenia Mercedes Casa Salinas, representing the presumed victim (hereinafter “therepresentative”)5 and the Commission, respectively, presented their observations on thepreliminary objections filed by the State.10. Final written procedure. In an order of August 3, 2020, the President of the Court, inconsultation with the full Court, decided that, for reasons of procedural economy and due tothe situation caused by the COVID-19 pandemic, it was not necessary to call a public hearingin this case. She therefore required that the statements admitted be provided by affidavit.611. Final written arguments and observations. On October 8 and 9, 2020, the Commission,the representative and the State forwarded, respectively, their final written observations andtheir final written arguments, together with annexes.In a communication of September 25, 2019, the State appointed the lawyer, Carlos Miguel Reaño Balarezo,as its Agent, and the lawyers, Silvana Lucía Gómez Salazar and Nilda Peralta Zecenarro, as deputy agents.3The State presented a “preliminary observation” and five “procedural questions,” two of which were addressedat contesting the Court’s jurisdiction as follows: (a) “Lack of jurisdiction of the IACtHR to assume the role of fourthinstance,” and (b) “Observations on the undue inclusion of arguments on the presumed violation of the right to workin the pleadings and motions brief.”45This was validated in a brief of December 12, 2019, with a power of attorney granted by the presumed victim.In this order, the statements of the following persons were admitted: (a) Julio Casa Nina (presumed victim,proposed by the representative), and (b) Rita Arleny Figueroa Vásquez (witness, proposed by the State). In addition,the President ordered the incorporation “as documentary evidence, of the opinion that the expert, Perfecto AndrésIbáñez, had provided during the processing of the case of Martínez Esquivia v. Colombia.” Cf. Case of Casa Nina v.Peru. Order of the President of the Inter-American Court of Human Rights of August 3, 2020. Available at:https://www.corteidh.or.cr/docs/asuntos/casa nina 03 08 20.pdf.65

12. Observations on the annexes to the final arguments. On October 30, 2020, the Statepresented its observations on the annexes to the final written arguments of the representative.And, on November 2, 2020, the representative presented her observations on the annexes tothe State’s final written arguments. On the same date, the Commission indicated that it hadno comments to make in this regard.13.The Court deliberated this judgment virtually on November 23 and 24, 2020.7IIIJURISDICTION14. The Court has jurisdiction to hear this case, pursuant to Article 62(3) of the Conventionbecause the Republic of Peru has been a State Party to this instrument since July 28, 1978,and accepted the contentious jurisdiction of the Court on January 21, 1981.IVPRELIMINARY OBJECTIONS15. In the instant case, the State filed two preliminary objections on the following issues:(a) the preliminary objection of “fourth instance,” and (b) the Court’s lack of jurisdiction toexamine arguments concerning the right to work.A. Preliminary objection of “fourth instance”A.1. Arguments of the parties and the Commission16. The State argued that the inter-American system for the protection of human rightscontributes, and is subsidiary and complementary, to the internal jurisdiction of the States sothat, as the Court has indicated on previous occasions, it lacks jurisdiction to act as a highercourt to rule on disagreements regarding the assessment of evidence, because theexamination of the facts and the evidence corresponds to the domestic courts. It argued thatit had filed the preliminary objection of fourth instance twice during the admissibility stagebefore the Commission.17. The State indicated that the matter debated in the instant case had “clearly been settled”at the domestic level by a judgment of the Constitutional Court of December 14, 2005 (sic).8However, since the presumed victim did not agree with the assessments and rulings made bythe domestic jurisdictional organs, he was seeking for the Court to act as a fourth instance;that is, to intervene and to rule on the dispute. Lastly, the State argued that the Court lackedjurisdiction to hear the case since the presumed victim had resorted to the inter-Americansystem because he disagreed with the decisions taken internally.18. The representative argued that the matter submitted to the Court’s consideration didnot concern the assessment of the evidence or internal differences or disputes. To thecontrary, it related to the State’s violation of human rights protected by both domestic andsupranational law.Owing to the exceptional circumstances resulting from the COVID-19 pandemic, this judgment was deliberatedand adopted during the 138th regular session, which was held virtually using technological means as established inthe Court’s Rules of Procedure.7The judgment of the Constitutional Court was issued on November 14, 2005. Cf. Judgment handed down bythe First Chamber of the Constitutional Court on November 14, 2005 (evidence file, volume I, annex 9 to the MeritsReport, folios 32 and 33).86

19. The Commission indicated that, in the instant case, a series of violations of due processand the principle of legality were alleged in the proceedings that culminated with the removalof the presumed victim from his post in the Prosecution Office; therefore, it was not a matterthat referred merely to a disagreement with domestic decisions. It added that the debate onthe reasons that led it to conclude that the said violations had been committed correspondedto the merits of the matter and this could never be decided by a preliminary objection. Itasked the Court to reject the preliminary objection of fourth instance.A.2. Considerations of the Court20. The Court has indicated that the determination of whether the actions of judicial organsconstitute a violation of the State’s international obligations may result in the Court having toexamine the respective internal proceedings to establish their compatibility with the AmericanConvention.9 However, this Court is not a fourth instance to conduct a judicial review or toexamine the assessment of the evidence made by the domestic judges. It is only competentto decide on the content of judicial decisions that contravene the American Convention in away that is plainly arbitrary.1021. In this specific case, the Court notes that the claims of the Commission and thepresumed victim are not confined to the review of the rulings of the domestic courts owing toa possible error in the assessment of the evidence, the determination of the facts, or theapplication of domestic law. To the contrary, they argue that various rights established in theAmerican Convention were violated in the context of the decisions taken by the domesticauthorities, in both the administrative and the judicial sphere. Consequently, in order todetermine whether the said violations truly occurred, it is essential to analyze the decisionsissued by the different administrative and jurisdictional authorities in order to determine theircompatibility with the State’s international obligations and, ultimately, this relates to asubstantive issue that cannot be settled by means of a preliminary objection. Consequently,the Court declares the preliminary objection presented by the State inadmissible.B. The Court’s lack of jurisdiction to examine arguments concerning the rightto workB.1. Arguments of the parties and the Commission22. The State argued that a violation of the right to work was mentioned several times inthe pleadings and motions brief, although this had not been considered in either theAdmissibility Report or the Merits Report. It indicated that Article 19(6) of the AdditionalProtocol to the American Convention on Human Rights in the Area of Economic, Social andCultural Rights, known as the “Protocol of San Salvador,” delimited the competence of theCommission and of the Court in the sense that the organs of the inter-American system forthe protection of human rights could only examine trade union rights (Article 8(a)) and theright to education (Article 13). It argued that the Court could not assume competence withregard to the presumed violation of a right or freedom that was not included under theprotection system of the Convention and the Protocol of San Salvador. It added that the Courtshould “reconsider and reflect on the criteria previously established in the case of Lagos delCampo v. Peru,” as regards the interpretation of Article 26 of the Convention.Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of November 19,1999. Series C No. 63, para. 222, and Case of Urrutia Laubreaux v. Chile. Preliminary objections, merits, reparationsand costs. Judgment of August 27, 2020. Series C No. 409, para. 31.9Cf. Case of Rico v. Argentina. Preliminary objection and merits. Judgment of September 2, 2019. Series C No.383, para. 82, and Case of Urrutia Laubreaux v. Chile, supra, para. 31.107

23. It argued that, in the instant case, the only allegation concerning the principle ofprogressive development of the economic, social and cultural rights was contained in thepleadings and motions brief. Therefore, the Commission had not ruled in this regard and,consequently, it was not pertinent to analyze this. It asked the Court to reject the claimconcerning the violation of the right to work.24. The representative argued that the allegation concerning the violation of the right towork was related to the factual grounds of the case so that there could be no limitation to itsanalysis. She added that, in the case of Lagos del Campo v. Peru, the Court had asserted thatthe right to work was protected by the American Convention, considering that the civil andpolitical rights and those of an economic, social and cultural nature should be understoodintegrally, without any hierarchy among them, and were therefore enforceable in all casesbefore the authorities with competence to protect them.25. The Commission indicated that the representatives or the presumed victims are ableto cite the violation of rights other than those included in the Merits Report, provided thatthese related to the facts contained in the latter. It added that “this was not the right momentto question the [ ] Court’s case law on the violation of Article 26 [of the Convention],” becausethe Court itself had reiterated that the broad terms in which the American Convention wasdrafted indicated that it had full jurisdiction over all its articles and provisions. It asked theCourt to reject this preliminary objection.B.2. Considerations of the Court26. The Court reaffirms its competence to examine and decide disputes relating to Article 26of the American Convention as an integral part of the rights listed in its text, regarding whichArticle 1(1) establishes obligations of respect and guarantee. 11 As indicated in previousdecisions,12 the considerations related to the possible occurrence of such violations must beexamined when analyzing the merits of the matter.27. Furthermore, in response to the State’s arguments, it should be added that the Courthas repeatedly considered that the representatives or the presumed victims may invoke rightsother than those indicated by the Commission, because as the latter are entitled to all therights established in the American Convention, denying them this possibility would entail anCf. Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller’s Office”) v. Peru.Preliminary objection, merits, reparations and costs. Judgment of July 1, 2009. Series C No. 198, paras. 16, 17 and100; Case of Lagos del Campo v. Peru. Preliminary objections, merits, reparations and costs. Judgment of August 31,2017. Series C No. 340, paras. 142 and 154; Case of the Discharged Employees of PetroPeru et al. v. Peru. Preliminaryobjections, merits, reparations and costs. Judgment of November 23, 2017. Series C No. 344, para. 192; Case of SanMiguel Sosa et al. v. Venezuela. Merits, reparations and costs. Judgment of February 8, 2018. Series C No. 348, para.220; Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C No.349, para. 100; Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs.Judgment of August 23, 2018. Series C No. 359, paras. 75 to 97; Case of Muelle Flores v. Peru. Preliminary objections,merits, reparations and costs. Judgment of March 6, 2019. Series C No. 375, paras. 34 to 37; Case of the NationalAssociation of Discharged and Retired Employees of the National Tax Administration Superintendence (ANCEJUBSUNAT) v. Peru. Preliminary objections, merits, reparations and costs. Judgment of November 21, 2019. Series C No.394, paras. 33 and 34; Case of Hernández v. Argentina. Preliminary objection, merits, reparations and costs.Judgment of November 22, 2019. Series C No. 395, para. 62; Case of the Indigenous Communities of the LhakaHonhat (Our Land) Association v. Argentina. Merits, reparations and costs. Judgment of February 6, 2020. Series CNo. 400, para. 195; Case of Spoltore v. Argentina. Preliminary objection, merits, reparations and costs. Judgment ofJune 9, 2020. Series C No. 404, para. 85, and Case of the Workers of the Fireworks Factory of Santo Antônio de Jesusand their families v. Brazil. Preliminary objections, merits, reparations and costs. Judgment of July 15, 2020. SeriesC No. 407, para. 23.11Cf. Case of Muelle Flores v. Peru, supra, para. 37, and Case of the Workers of the Fireworks Factory of SantoAntônio de Jesus and their families v. Brazil, supra, para. 23.128

undue restriction of their condition as subjects of international human rights law.Nevertheless, the Court’s case law requires that the said allegations must be based on thefactual framework established in the Merits Report.13 Consequently, the Court finds thispreliminary objection inadmissible.VPRELIMINARY CONSIDERATIONSA. Determination of presumed victimsA.1. Arguments of the parties and the Commission28. The State argued that the Court had established that it was an obligation of theCommission to identify the presumed victims and that this should be done in the Merits Report;accordingly, it was not possible to include other presumed victims at a later stage. In its MeritsReport, the Commission had only recognized Julio Casa Nina as a presumed victim. However,other individuals were included in the pleadings and motions brief – Mr. Casa Nina’s wife anddaughters – although, based on the Court’s case law, they could not be considered as suchand there were no grounds for the exception established in Article 35(2) of the Court’s Rulesof Procedure. It asked the Court to declare that it was not possible to include presumed victimsother than Mr. Casa Nina.29. The representative argued that reparation for human rights violations should beintegral and should therefore encompass the members of the victim’s family; to this end, itwas necessary to take into account different international standards concerning the rights ofvictims to obtain reparations. The Commission did not comment in this regard.A.2. Considerations of the Court30. The Court recalls that, pursuant to Article 35(1) of the Rules of Procedure, the case issubmitted to its jurisdiction by the presentation of the Merits Report, which must contain theidentification of the presumed victims. Consequently, it is for the Commission to identity thepresumed victims precisely and at the opportune procedural moment,14 save in the exceptionalcircumstances established in Article 35(2) of the said Rules of Procedure, according to which,when it has been justified that it has not been possible to identify one or more presumedvictims, in cases of massive or collective violations, the Court will duly decide whether or notto consider them as such, based on the nature of the violation. 1531. Therefore, in application of the said Article 35(1) of the Rules of Procedure and sincenone of the exceptions established in Article 35(2) are present, the Court concludes that it isnot viable to include other presumed victims than the one identified in the Merits Report: thatis, Julio Casa Nina.Cf. Case of the “Five Pensioners” v. Peru. Merits, reparations and costs. Judgment of February 28, 2003. SeriesC No. 98, para. 155, and Case of López et al. v. Argentina. Preliminary objections, merits, reparations and costs.Judgment of November 25, 2019. Series C No. 396, para. 196.13Cf. Case of the Ituango Massacres v. Colombia. Preliminary objection, merits, reparations and costs. Judgmentof July 1, 2006. Series C No. 148, para. 98, and Case of Olivares Muñoz et al. v. Venezuela. Merits, reparations andcosts. Judgment of November 10, 2020. Series C No. 415, para. 20.14Cf. Case of the Río Negro Massacre v. Guatemala. Preliminary objection, merits, reparations and costs.Judgment of September 4, 2012. Series C No. 250, para. 48, and Case of Olivares Muñoz et al. v. Venezuela, supra,para. 20.159

B. The factual framework of the caseB.1. Arguments of the parties and the Commission32. The State argued, under the heading of “preliminary observations,” that theCommission, “has erroneously distorted the meaning of this case and has raised legal issuesthat, strictly speaking, bear no relationship to the facts.” It underlined that the removal of Mr.Casa Nina from his post “did not occur owing to the application of a sanction; consequently,no disciplinary procedure has been conducted.” In this regard, it argued that he had not beenremoved, terminated or dismissed; merely, his designation as Provisional Deputy Prosecutorof the Second Provincial Criminal Prosecution Office of Huamanga, Ayacucho, had concluded.The State asked the Court to establish and delimit the central fact of the dispute in order todetermine the legal positions assumed by the parties and, if necessary, the legal grounds thatwould be the basis for its ruling.33. The representative indicated that the Merits Report delimited “clearly” the purpose ofthe dispute. Meanwhile, the Commission indicated that the State’s argument “does not reallyrefer to the delimitation of the factual framework, but rather to a discrepancy with the legalcharacterization” made in the Merits Report. It added that the said factual framework of thiscase is “clearly delimited and is constituted by the proceedings that culminated with thevictim’s removal from his post of Provisional Deputy Prosecutor of the Second CriminalProsecution Office of the province of Huamanga.” It asked the Court to reject the State’sposition.B.2. Considerations of the Court34. The Court recalls that the factual framework of the proceedings is constituted by thefacts contained in the Merits Report submitted to its consideration.16 In this regard, asindicated by the Commission, the State’s argument did not object directly to the delimitationof the factual framework, but rather to the Merits Report’s categorization of those facts.Specifically, it contested the affirmation that the termination of the post occupied by thepresumed victim was the result of a sanction and, therefore, denied that he had been removed,terminated or dismissed. In any case, these aspects are related to the legal arguments on thecharacterization of the facts, elements that undoubtedly form part of the in-depth analysisthat the Court will make.VIEVIDENCEA. Admissibility of the documentary evidence35. The Court received diverse documents presented as evidence by the Commission andthe parties with their principal briefs (supra paras. 1, 7 and 8). As in other cases, the Courtadmits those documents presented at the proper procedural moment (Article 57 of the Rulesof Procedure)17 by the parties and the Commission, the admissibility of which was notCf. Case of Vera Vera et al. v. Ecuador. Preliminary objection, merits, reparations and costs. Judgment of May19, 2011. Series C No. 226, para. 32, and Case of Urrutia Laubreaux v. Chile, supra, para. 39.16In general the documentary evidence should be presented pursuant to Article 57(2) of the Rules of Procedure,together with the briefs submitting the case or with pleadings and motions, or with the answering brief, as applicable,and evidence submitted outside these procedural opportunities is inadmissible

INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF CASA NINA V. PERU JUDGMENT OF NOVEMBER 24, 2020 (Preliminary objections, merits, reparations and costs) In the case of Casa Nina v. Peru, the Inter-American Court of Human