53
privatization of a company; d) retirement pension benefits must be guaranteed and paid in a timely
manner and without delays, bearing in mind the importance of this principle for older persons, and
e) effective grievance mechanisms must be available in the event of a violation of the right to social
security, in order to guarantee access to justice and effective judicial protection; this includes the
realization of that right through the effective implementation of favorable rulings issued at the
domestic level.
193. Based on the criteria established in the preceding paragraphs and the Court’s conclusions
regarding the right to judicial protection (supra paras.149), and considering, in particular, that the
State company from which Mr. Muelle Flores retired was privatized, the Court will now analyze the
effects on the right to social security in this specific case.
iii)
Effects on the right to social security in the instant case
194. In the instant case, Decree Law No. 20530 regulated a pension scheme in Peru based on the
contributions of workers enrolled in that system. The application of this system to Mr. Muelle Flores
was suspended in 1991. However, two amparo judgments and a ruling in a contentiousadministrative proceeding declared that the unilateral suspension of Mr. Muelle Flores’ pension
payments by the public company was arbitrary, recognized his right to a pension, and ordered its
restoration. Despite this, his right to a pension did not materialize owing to the failure to comply with
and execute those decisions. It is important to emphasize that access to justice not only forms part
of the content of the right to social security, but that respect for judicial guarantees and judicial
protection are also essential to ensure the protection and the effectiveness of the economic, social
and cultural rights.
195. The mere recognition of a pension does not mean that this right has been satisfied or realized.
For this to occur, it is indispensable, in the interest of effectively realizing that right, to execute the
domestic rulings issued in favor of Mr. Muelle Flores and pay the amounts owed for unpaid pensions
and continue to pay those to which he will be entitled in the future.
196. In this case, it is important to highlight the State’s obligations in relation to Article 26 of the
Convention, in the context of a privatization process. The privatization of Tintaya S.A. was part of an
effort to promote private investment in companies that form part of the State’s business activities
(supra para. 57) and, although this is not prohibited under the Covenant,211 it can have various
effects on the rights of its workers or retirees, as in the case of Mr. Muelle Flores. As the expert
witness Christian Courtis has indicated, “privatization does not relieve the State of its human rights
obligations, and it must observe due diligence to ensure that the transfer of a public company to the
private sector does not affect the rights of those linked to that company, such as workers entitled to
the right to social security and users. As the CESCR has stated, “the obligations to protect the right
to work include, inter alia, the duties of the States parties to [...] ensure that privatization measures
do not undermine workers’ rights.”212 The same principle is applicable to the right to social security
and to other social rights.”213
197. Regarding this last point, although the CESCR has indicated the importance of adopting
measures to ensure that privatization does not undermine the rights of workers, as part of the State’s
“obligations to protect,” the Court considers that within the framework of the general obligations to
211
Cf. Mutatis mutandis, UN, Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 24
(2017), para. 21.
212
U.N. CESCR, General Comment No. 18 (2005), para. 25.
213
Cf. Affidavit rendered by Christian Courtis on August 30, 2018 (evidence file, folio 1823).