While it is true that Article 14.b of Decree Law 20530 precludes the accumulation of periods
of public service under differing labor regimes, it is also true that the reincorporation of the
appellant to the Government pension scheme took place (...) in application of the Fifth
Transitional Provision of the aforementioned Decree Law, following verification of
compliance with that provision's requirements.41
34.
The Division pointed out that the application of that provision to Mr. Muelle had been ratified
with the promulgation of Law No. 25273 of July 6, 1990, which established exceptions to Article 14.b of
Decree Law 20530.42 It added that consequently, and based on the benign retroactivity of laws principle
established in Article 187 of the Constitution in force at the time, Law No. 25273 was to be applied to Mr.
Muelle's situation.43 The Division concluded by pointing out the following:
(...) while it may be true that Law No. 25273 has been repealed by the Third Final and
Transitional Provision of the 1993 Constitution, that in no way impairs the appellant's
acquired right.44
2.
The process for enforcement of the amparo judgment of February 2, 1993
35.
On December 18, 1995, in response to a request from Mr. Muelle, the Fifth Specialized Civil
Court of Lima issued a resolution stating that:
(...) the company (...) has been creating obstacles to execution of the judgment with the
pretext that it is legally prevented from satisfying the claim because the services provided by
the plaintiff that led to his being granted a pension pertained to different non-cumulative
labor regimes; (...) Magma Copper Corporation - Tintaya is hereby required within three days
of notification to proceed to comply with the final Supreme Court judgment of February 2,
1993.45
36.
On April 7, 1997, at Mr. Muelle's behest, the Fifth Civil Court of Lima issued a new resolution,
which read as follows:
LET THE SPECIAL MINING CORPORATION TINTAYA S.A. (now BHP Tintaya S.A.) BE HEREBY
REQUIRED FOR THE LAST TIME to fully comply within three days with the order handed
down in the Supreme Court judgment of February 2, 19[93] on pain of issuance of certified
copies for filing criminal suit (...).46
37.
On August 24, 2000, Mr. Muelle notified the Pension Standardization Office (Oficina de
Normalización Previsional -ONP) that as of 1999 the company had begun paying him a monthly sum of 800
new soles.47 He maintained that the company had not "performed the balanced-out and retroactive calculation
41 Decision of the Constitutional and Social Division of the Supreme Court, August 22, 1997. Attached to the petitioner's
communication of November 10, 1998.
42 Decision of the Constitutional and Social Division of the Supreme Court, August 22, 1997. Attached to the petitioner's
communication of November 10, 1998.
43 Decision of the Constitutional and Social Division of the Supreme Court, August 22, 1997. Attached to the petitioner's
communication of November 10, 1998.
44 Decision of the Constitutional and Social Division of the Supreme Court, August 22, 1997. Attached to the petitioner's
communication of November 10, 1998.
45 Resolution of the Fifth Specialized Civil Court of Lima of December 18, 1995. Attached to the petitioner's communication of
November 10, 1998.
46
Resolution of the Fifth Civil Court of Lima of April 7, 1997. Attached to the petitioner's communication of May 31, 2004.
47
Communication of the ONP of August 24, 2000. Attached to the petitioner's communication of May 31, 2004.
7