55
was the result of a decision taken by the State, and therefore it was up to the State itself to
communicate, in an adequate and timely manner, the effects of that decision on the victim’s acquired
rights, which had also been judicially recognized.
201. Furthermore, the Court notes that, at the time of the facts, the State did not have clear
regulations that clearly established how the pension rights of its retired workers would be protected
after privatization, in accordance with its obligation to adopt the measures necessary to realize the
right to social security. Although the sale contract between Tintaya S.A. and Magma Copper
Corporation mentioned the number of retirees and pensioners that the State company had, and
referred to responsibility for unregistered liabilities or contingencies (supra para. 59), this information
was never clearly explained to Mr. Muelle Flores, in order to establish how his pension would continue
to be guaranteed, based on the domestic judicial rulings.
202. The Court considers that the State failed to fulfill its obligations, namely, the obligation to adopt
safeguards to prevent the negative effects of the privatization process resulting from a decision taken
by the State itself; the obligation to inform Mr. Muelle Flores of the manner in which his legally
recognized pension would be guaranteed; the obligation to clearly establish which entity would be
responsible for paying his pension; and the obligation to comply with and execute domestic judicial
decisions. These are all obligations of an immediate nature, which have nothing to do with the
progressive development of the right.
203. At the same time, the Court observes that, according to Peruvian law, pensioners who retired
under Decree Law No. 20530 had the right to obtain health insurance with EsSalud, the health care
provider within Peru’s social security system. The pensioner had a right to this insurance since the
entity responsible for paying his pension was required to retain 4% of his pension to pay his health
insurance contributions. This deduction was mandatory, that is, the health insurance to which Mr.
Muelle Flores was entitled, like any other pensioner under that pension scheme, was provided to him
based on his contributions to that system. In the instant case, because the State stopped paying Mr.
Muelle Flores the pension to which he had an acquired right – a right subsequently recognized by the
courts - the contributions required to access the health insurance to which he was entitled were not
made and, therefore, the victim did not receive the health coverage to which he was also entitled
under Peruvian law and which, in turn, forms part of the right to social security. As result of this
situation, Mr. Muelle Flores had to cover the cost of treatment for his health problems and the surgical
intervention he required (supra, para. 84) with his own money, instead of being covered by the social
health insurance to which he was entitled, in violation of his right to social security.
204. Furthermore, the Court considers that in a context in which a legally recognized pension is not
paid, the rights to social security, personal integrity and human dignity are also affected, since they
are interrelated, and that sometimes the violation of one right directly affects another, a situation
that is accentuated in the case of older persons. Although neither the Commission nor the
representatives have expressly alleged the violation of Articles 5(1) and 11(1) of the Convention in
the instant case, that does not prevent this Court from applying those precepts by virtue of a general
principle of law, iura novit curia, on which international jurisprudence has repeatedly relied and under
which a court has the power and the duty to apply the juridical provisions relevant to a proceeding,
even when the parties do not expressly invoke them. 216
205. Indeed, the lack of financial resources resulting from the failure to pay pension allowances
directly undermines the dignity of an older person, since at this stage of life the pension constitutes
their main source of income to cover the basic and essential necessities of a human being.
216
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra, para. 163, and Case of Vereda La Esperanza v. Colombia.
Preliminary objection, merits, reparations and costs. Judgment of August 31, 2017. Series C No. 341, para.239.