CONCURRING OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
I vote in favour of the adoption of the present Judgment on merits and
reparations in the case of the Five Pensioners versus Peru, in which the Inter-American
Court of Human Rights, firstly, affirms the character of acquired right of the right to
pension, subsumed in the right to private property under Article 21 of the American
Convention on Human Rights, and linked to the perennial, ineluctable and irreducible
social function of the State. And, subsequently, the Court sustains that the prompt
compliance with the judgments - which cannot remain at the mercy or discretion of the
Administration - is an essential component of the right to judicial protection set forth in
Article 25 of the American Convention.
2.
From the present Judgment of the Court the wide scope of the right of access to
justice, at national as well as international levels, can be inferred. That right is not
reduced to the formal access, stricto sensu, to the judicial instance; the right of access
to justice, which is implicit in several provisions of the American Convention (and of
other human rights treaties) and which permeates the domestic law of the States
Parties, means, lato sensu, the right to obtain justice. Endowed with a juridical content
of its own, it appears as an autonomous right to the jurisdictional assistance, that is, to
the very realization of justice.
3.
As the circumstances of the present cas of the Five Pensioners versus Peru
reveal, the obligations of judicial protection on the part of the State are not complied
with by the sole issuing of judgments, but rather with the effective compliance with
them (in accordance with the provision of Article 25(2)(c) of the American Convention).
From the standpoint of the individuals, one can here visualize a true right to the Law
("derecho al Derecho"), that is, the right to a legal order - at national as well as
international levels - which effectively protects the rights inherent to the human person1
(among which the right to pension as an acquired right2).
4.
My intention, in the present Concurring Opinion, is to underline the importance,
for the operation, in particular, of the mechanism of protection of the American
Convention, of the decision taken by the Court in the present Judgment in relation
specifically to the distinct roles of the individual petitioners and of the Inter-American
Commission on Human Rights in the procedure before the Court. The question has a
direct incidence in the treatment of the right of access to justice, in its wide meaning to
which I have just referred to, and in the framework of the application of the American
Convention.
5.
In fact, as pointed out in the present Judgment in the case of the Five
Pensioners versus Peru, this is the first contentious case entirely handled under the new
Regulations of the Court, adopted on 24 November 2000, and in force as from 01 June
2001 (par. 152). In adopting such historical Regulations, which conferred locus standi in
judicio onto the petitioners in all the stages of the procedure before the Court, this latter
1
.
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, tomo III, Porto
Alegre/Brasil, S.A. Fabris Ed., 2003, pp. 523-524.
2
.
Which has been incorporated to the personal patrimony, as an assistance on the part of the public
power for the years of work and social contributio rendered by the individual, and which cannot be affected by
subsequent legislative alterations (or of other kinds), with consequences amounting to confiscation.
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