15
the Court shall now proceed to analyze the violations alleged in consideration of
the facts that the Court considers proven, as well as the legal arguments put
forward by the parties.
VI
VIOLATION OF ARTICLES 25(1) AND 25(2)(C) (RIGHT TO JUDICIAL PROTECTION)19,
20
AND 21(1) AND 21(2) (RIGHT TO PROPERTY) OF THE AMERICAN CONVENTION, IN
21
CONJUNCTION WITH ARTICLE 1(1) (OBLIGATION TO RESPECT RIGHTS)
THEREIN
41.
The Court shall examine in this chapter the following three aspects: first, it
shall describe the domestic judicial procedure and analyze the scope of the
provisions contained in the judicial judgments delivered by the Constitutional
Court of Perú on October 21, 1997 and January 26, 2001; second, it shall
determine whether the State has provided the alleged victims with an effective
judicial recourse against acts that violate their rights, in light of Article 25(1) and
25(2)(c) of the Convention; finally, if applicable, it shall examine whether the
compliance or non-compliance with the provisions contained in said judgments
has resulted in an abridgment of the right to property of the alleged victims,
according to Article 21 of the Convention.
42.
Before analyzing whether the State has failed to comply with a treaty
obligation, it is pertinent to describe the judicial procedure that originated the
judgments, subject-matter of this case.
A) Pension system upon which the
Judments of 1997 and 2001
and the right protected by such decisions are based
43.
It is a non-disputed fact that the alleged victims opted for the pension
system regulated by Decree Law No. 20.530 (System of Pensions and
Compensations for Civil Services provided to the State not covered by Decree Law
No. 1999022), which stipulates a retirement pension that is progressively pegged
19
Article 25(1) of the Convention provides that: " Everyone has the right to simple and prompt
recourse, or any other effective recourse, to a competent court or tribunal for protection against acts
that violate his fundamental rights recognized by the constitution or laws of the state concerned or by
this Convention, even though such violation may have been committed by persons acting in the
course of their official duties”. Moreover, Article 25(2)(c) provides that: "The State Parties undertake:
[...] c) to ensure that the competent authorities shall enforce such remedies when granted”.
20
Article 21(1) and 21(2) (Right to Property) of the Convention establishes that:
Everyone has the right to the use and enjoyment of his property. The law may subordinate
such use and enjoyment to the interest of society.
[…] No one shall be deprived of his property except upon payment of just compensation, for
reasons of public utility or social interest, and in the cases and according to the forms
established by law.
[…].
21
According to Article 1(1) (Obligation to Respect the Rights) of the Convention,
The States Parties to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction the free and full
exercise of those rights and freedoms, without any discrimination for reasons of race, color,
sex, language, religion, political or other opinion, national or social origin, economic status,
birth, or any other social condition. […]
22
Decree Law 19990 contains one Article, which stipulates that the amount of the Minimum
Pension for the Scheme of this Decree Law is formed by contributions made over a minimum period of
20 years to the National Pension System.