35
violation of the right to judicial protection (supra paras. 69 to 79 and right to
property (supra paras. 84 to 91).
B) Adoption and application of Decrees No. 25597 and 036-93-EF
107.
Moreover, the representative alleged the violation of Article 26 of the
Convention as a result of the creation of Decree Law No. 25597 and Supreme
Decree No. 036-93-EF as legislative measures that constituted a step backwards,
that is, contrary to the progressive realization of the right to social security. In
this regard, the Court recalls that in the case at hand, there is no controversy
between the parties over whether or not the alleged victims had a right to an
adjustable pension or whether such right was adversely affected by the
unjustified application of said decrees (supra para. 52). In fact, according to what
has been established, the parties to this case agree on the fact that when the 273
pensioners of the CGR ceased to work for such institution, they acquired the right
to a severance pension under the system regulated by Decree Law No. 20530
(supra para. 43), right that was afterwards recognized by the courts due to the
inapplicability to the case of the unconstitutional Decree Law No. 25597 and
Supreme Decree No. 036-93-EF (supra para. 45, 48 and 52). In this sense,
insofar as there is no controversy at issue in this regard, this Tribunal shall not
rule on the alleged non-compliance with the terms under Article 26 of the
Convention as a consequence of the enactment of those norms.
VIII
REPARATION
(APPLICATION OF ARTICLE 63(1) OF THE AMERICAN CONVENTION)91
108.
It is a principle of International Law that any violation of an
international obligation that has caused damage entails the duty to provide
adequate reparation.92 All aspects of this obligation to make reparations are
regulated by international law.93 The Court has based its decisions in this regard
on Article 63(1) of the American Convention.
109.
In accordance with the above considerations on the merits and the
violations of the Convention so declared in the preceding chapters, as well as in
light of the criteria embodied in the Court’s case law in connection with the nature
and scope of the obligation to make reparations,94 the Court shall now address
the requests for reparations made by the Commission and the representative, as
well as the State’s arguments thereof, in order to adopt the measures required to
redress the damage.
91
Article 63(1) of the Convention provides:
If the Court finds that there has been a violation of a right or freedom protected by this
Convention, the Court shall rule that the injured party be ensured the enjoyment of his right
or freedom that was violated. It shall also rule, if appropriate, that the consequences of the
measure or situation that constituted the breach of such right or freedom be remedied and
that fair compensation be paid to the injured party.
92
Cf. Case of Velásquez Rodríguez V. Honduras. Reparations and Costs. Judgment of July 21,
1989. Series C No. 7, para. 25; Case of Kawas Fernández, supra note 13, para. 156; and Case of
Perozo et al., supra note 13, para. 404.
93
Cf. Case of Aloeboetoe et al. V. Surinam. Merits. Judgment of December 4, 1991. Series C
No. 11, para. 44; Case of Perozo et al., supra note 13, para. 404; and Case of Ríos et al. V.
Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of January 28, 2009.
Series C No. 194, para. 395.
94
Cf. Case of Velásquez Rodríguez, supra note 92, para. 25 to 27; Case of Perozo et al., supra
note 13, para. 406; and Case of Ríos et al., supra note 93, para. 397.