13
Peruvian courts”. According to the representatives, said dismissal “lacks practical
effect” and “keeps in force the main claim of the complaints filed against the
victims".
29.
That the Inter-American Commission noted that there is no controversy
between the victims’ representatives and the State as to the fact that the State filed
complaints against the victims and that, as a result of the precautionary measures
ordered by the domestic court, the victims stopped receiving the "increase” in their
pensions based on equalization. The Commission mentioned that “what was put
forward before the Court did not require or does not require a determination over the
[pension] regime in general, but the compliance with a judgment that has not yet
become final [...]. [I]t seems that the State is taking a decided case with a final
judgment within a legal context and it is reusing it to a certain extent, in relation to a
legal framework previously adopted. Furthermore, it mentioned that “it positively
values the decision of the administrative courts to dismiss the additional claims to
the complaints for annulment filed by the SBS”.
30.
That the State violated the right to property to the detriment of the victims of
the instant case, under the terms of the following paragraphs of the Judgment
delivered by this Tribunal:
114.
The SBS paid only the amounts owed up until October 1992 and, to this end, it
based the calculations on the salary received by its active officials. However, this was
the only equalized pension payment that the pensioners received after the judicial
rulings had been delivered until, in March 2002, the situation changed; this will be
examined below […]. Consequently, for several years, the State failed to fully implement
the said judgments.
115.
The Court observes that, although the State authorities could have established
the equalized pension in accordance with the salary received by an official subject to the
public sector regime of a similar level or category to that of the alleged victims when the
SBS employees changed to the private sector regime (1981), they did not do so.
Moreover, it was the State itself that, as of the time the alleged victims opted for the
pension regime of Decree Law No. 20530, recognized, by administrative decisions, that
they had a right to a pension amount equalized with the salary of an active SBS official.
In addition, but even more important, when ruling on the applications for protective
measures filed by the five pensioners, the domestic courts ordered that the monthly
pensions should continue to be paid as they had been paid; in other words, equalizing
them with the salary received by active SBS officials, who belonged to the private sector
regime. This constitutes a right, to the benefit of the pensioners, emanating from the
judgments on protective measures, which, when it was disregarded by the State,
31
affected their patrimony, violating Article 21 of the Convention .
31.
That, based on the foregoing, the Court, in its Judgment, considered proven
that “the alleged victims and their next of kin suffered pecuniary and non-pecuniary
damage, owing to the reduction in their pensions and the failure to comply with the
judgments in their favor; the quality of life of the alleged victims was diminished”32.
As a result, the Court ordered the State to pay the victims a certain amount for nonpecuniary damage and, regarding the patrimonial consequences, if applicable, it
ordered to establish the corresponding amount by means of the State's institutions33.
31
Cf. Case of the Five Pensioners V. Peru, supra note 1, para. 114 and 115.
32
Cf. Case of the Five Pensioners V. Peru, supra note 1, para. 88.p).
33
As for the reparation of the pecuniary damage, in the brief on requests, arguments and evidence,
they requested the Court that, in order to establish the exact amount of the compensation for damages,
“it should take into account the accounting expertise that is available to the Court, at the appropriate
time”. Subsequently, in their brief with final arguments, they clarified that the purpose of the expert