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the general welfare in a democratic society and only to the extent that they
are not incompatible with the purpose and reason underlying those rights”;
and
c)
The State did not allege or prove that the setback entailed by Decree
Law No. 25792 was effected “in order to preserve the general welfare in a
democratic society,” “nor did it allege or prove any other circumstance in this
respect.”
Arguments of the representatives of the alleged victims and their next of kin
143. With regard to Article 26 of the Convention, the representatives of the alleged
victims and their next of kin indicated that:
a)
According to the provisions of this article, the State has the obligation
to progressively achieve the full realization of the right to social security. This
obligation implies the “correlative prohibition of regression with regard to
recognition of the right to social security, except in circumstances that are
absolutely necessary, reasonable and justified for the common good.” The
adoption of regressive policies, aimed at reducing the degree of enjoyment of
economic, social and cultural rights, violates the principle of progressive
development;
b)
The scope of this article should be determined bearing in mind the
evolving interpretation of international instruments and in accordance with
the pro homine principle established in Article 29(b) of the Convention;
c)
The essential content of the right to social security is to ensure to all
persons a protection against the consequences of ageing or of any other
contingency beyond their control that implies a deprivation of the essential
means of support to lead a dignified and decorous life. Peru violated the right
to social security when it deprived the five pensioners of the means of
support that, in the form of an equalized pension, corresponded to them in
the context of the pension regime to which they were assigned and that –
until March 1992 in one case, and until September that year with regard to
the other four – had permitted them to provide the most immediate vital
necessities for themselves and their families;
d)
The reduction in the amounts of the pensions of the alleged victims “is
a regressive measure that was not justified by the State in the context of the
full exercise of economic, social and cultural rights.” This measure has
violated the principle of progressive development established in Article 26 of
the Convention, which “cannot be undermined, under the pretext of a lack of
economic resources, and much less in the case of vulnerable groups of the
population, such as retirees and pensioners”;
e)
Overall, it is evident that the measures adopted by the State have
implied a grave violation of the human right to social security, because “these
measures – even though they may not have had that explicit intention – had
the concrete effect of creating a situation that deprived them of their means
of support, which – as pensioners and elderly adults – was essential to enable
them to lead a dignified and decorous life”; and
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