24
Order.
65.
Once it has been established that the State’s obligation, as derived
from the judgments in question, includes the payment of the pension amounts
withheld from April 1993 to October 2002, the Tribunal shall now examine
whether the State has committed the violation of or non-compliance with Articles
21, 25 and 26 of the Convention.
C) The right to judicial protection
66.
The Commission argued that "the remedies of amparo filed by the
[alleged] victims, […] were not simple, or prompt or effective”, and consequently,
the State violated Article 25 of the Convention It pointed out that “[in] the first
place, the mere fact that the [alleged] victims were forced to filed a second action
for amparo in order to enforce the decision handed down in the first action, shows
that they were not simple remedies. […] In the second place, given the protective
nature of the remedies filed, the answer of the judicial authorities should have
been given with all possible promptness […]; nevertheless, between the filing of
the first remedy of amparo, […] and the delivery of the final judgment over such
remedy, four years and five months have elapsed and between the filing of the
second remedy, […] almost two years; that is, none of the two remedies were
prompt. […] In the third place, [pursuant to Article 25 of the American
Convention] the procedure must tend to the implementation of the protection of
the right recognized in the judicial decision by means of the appropriate
application of [such] [which] has not occurred in the case at hand with the two
amparos filed [, therefore], the recourses were not effective”. Besides, the
Commission “noted that the State did not adopt measures to reduce or overcome
the budgetary constraints alleged as to the lack of economic resources, such as
the programming and implementation of a repayment schedule or financing plan
in favor of the pensioners of the Comptroller, in order to effectively comply with
said judgments”, “resulting in an unwarranted delay of more than 10 years for
the effective implementation of [those judgments]”.
67.
Moreover, the representative alleged that “the non-compliance with the
judgments of the Constitutional Court […] constitutes a [specific] violation of
Article 25(1) and 25(2)(c) [of the Convention]”. According to the representative,
said Articles have been violated as follows: “1) because, to date, more than 11
years after the first judgment was handed down, its rulings remain unfulfilled
[…]; 2) owing to the existence in Perú of a widespread practice of failing to
comply with judicial rulings; 3) because no measures have been adopted to deal
with, overcome, or reduce the budgetary constraints cited by the State as the
reason for its failure to comply with such judgments, and 4) because the noncompliance with the judicial rulings […] implies an ongoing violation of the right to
social security of the [alleged] victims��. In accordance with the representative,
"the non-compliance with the judicial mandates […] perpetuates the violation that
was supposed to be repaired, not just by means of the judicial determination of
the right, but by means of the subsequent enforcement or compliance with the
judgment. If judicial decisions are not complied with, the violated right remains
violated and that violation is, in turn, a violation of the right to judicial
protection”.
68.
The State alleged that, “the non-compliance with the obligations
contained in Articles 21 and 25 of the Convention has not been proven”. This,
because “since October 2002 [...] it had been paying pegged remunerations to
the 273 members of the Association [...], as ordered by the first judgment [of the
Constitutional Court] and as reiterated in the second judgment [of such court].”
As to the payment of the pension amounts withheld from 1993 to 2002, the State