51
117. Furthermore, instead of acting arbitrarily, if the State wished to give another
interpretation to Decree Law No. 20530 and its related norms, in relation to the five
pensioners, it should have: a) executed an administrative procedure with full respect
for the appropriate guarantees; and b) in any event, given precedence to the
decisions of the courts of justice over the administrative decisions.
118. In the instant case, neither of these two conditions was fulfilled. Without
exhausting the adequate proceeding, the Administration changed its interpretation of
the norms that regulated the pension of the five alleged victims and, subsequently,
disregarded the judicial decisions referred to above.
119. A significant element in this case was the promulgation of Act No. 27650,
published on January 23, 2002, in the Official Gazette El Peruano, which annulled
article 5 of Decree Law No. 25792. Subsequently, the SBS issued five decisions that
decided that the alleged victims should be paid the pension that corresponded to
them in accordance with Decree Law No. 20530, deducting from the calculation the
amounts of the pensions received between November 1, 1992, and January 23,
2002. The payment made to the five pensioners in March 2002, three months after
the application had been submitted to the Court, was made on the basis of the salary
of active SBS employees. Moreover, the said decisions reserved the right of the SBS
to deduct the amount that might have been paid in excess to the five pensioners, in
accordance with the judgment of the Inter-American Court.
In light of this
judgment, this reservation in the SBS decisions has no effect whatsoever.
120. The State’s payment of the equalized pensions that corresponded to the
alleged victims from the time they were reduced implies that the State has
acknowledged and complied with the claims made by the Inter-American
Commission and the representatives of the alleged victims and their next of kin in
this respect.
121. Based on the foregoing, the Court finds that, by arbitrarily changing the
amount of the pensions that the alleged victims had been receiving and by failing to
comply with the judicial rulings arising from their applications for protective
measures (infra Chapter VIII), the State violated the right to property embodied in
Article 21 of the Convention to the detriment of Carlos Torres Benvenuto, Javier
Mujica Ruiz-Huidobro, Guillermo Álvarez Hernández, Maximiliano Gamarra Ferreyra
and Reymert Bartra Vásquez, because the rights recognized in the said judgments
were violated.
VIII
VIOLATION OF ARTICLE 25
(JUDICIAL PROTECTION)
The arguments of the Commission
122.
With regard to Article 25 of the Convention, the Commission alleges that:
a)
When the SBS reduced de facto the pensions that the alleged victims
had been receiving, the latter, together with their legal advisers, examined
the different recourses offered by Peruvian legislation and decided that the
appropriate way to defend their rights was to file applications for amparo
against the SBS, the State organ that had violated their rights. In its
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