REASONED OPINION OF JUDGE DE ROUX RENGIFO
The determination of whether the facts of this case did or did not violate the right to
property embodied in Article 21 of the American Convention presented certain
specific difficulties. The alleged victims had evidently an acquired right to a pension
and this right, considered in the abstract, formed part of their patrimony. However,
the execution of that right in a monthly pension payment of a specific amount should
have ensued from weighing the domestic constitutional and legal norms that would
allow questions such as the following to be clarified:
How and to what extent was the existence of two regimes, one related to the public
sector and the other to the private sector, relevant, for the effects of a pension?
Could the pension of individuals subject to the public sector regime, such as the
alleged victims, be equalized with the salary received by employees subject to the
private sector regime?
What procedure should have been followed when all the employees of the public
entity in question became subject to the private sector regime?
In that case, would it have been possible to equalize the pensions with the salary
received by employees subject to the public sector regime, but employed in entities
other than the one in which the alleged victims were working?
Did the fact that, for several years, the State calculated and paid the monthly
pensions of the alleged victims by equalizing them with the salary of employees
subject to the private sector regime lead to the creation, in favor of the said victims,
of a right that their pension should continue to be subject to this specific type of
equalization?
The Court has acted appropriately by abstaining from entering into these questions
of substance – in some of the considering paragraphs there are affirmations that
appear to be addressed at resolving them in a specific sense, but in general the
Court has avoided them.
It is obvious that the disputes to which these questions gave rise or will give rise can
only be decided by the domestic courts. The competence of the Inter-American
Court is limited to ensuring that the appropriate procedures are followed, respecting
the right of access of justice and, when appropriate, the right to an effective remedy
of protection.
With this reference to the effective remedy, we enter into the surest part of the
terrain on which the judgment is grounded. In the case under consideration, it has
been duly proven: that the victims filed applications for protective measures
(acciones de garantía) to avoid their pensions being reduced; that these actions
resulted in judgments which ordered the monthly pensions to continue to be
calculated and paid as they had been before the corresponding reduction (in other
words, that ordered that the status quo should be maintained); and that these
judgments were disregarded by the State. This constitutes an evident violation of
Article 25 of the Convention, and so the Court decided.
The State has argued that these judgments contained an order addressed to a public
entity – the Superintendency of Banks and Insurance – distinct from the one that