22
November 1992 to January 1993, payment of which has not been accredited before this Court.
According to a document dated March 19, 1999, BHP Tintaya S.A. stated that the amount paid
constituted “a provisional payment, in compliance with the Supreme Court judgment of February 2,
1993 […]. The final amount of the pension [would] be determined by the Actuarial Calculation Office
of the ONP. The company [would] transfer to the [ONP] the corresponding funds for the pension
payments from April of this year.”90 Based on the evidence provided by the parties, this did not occur.
The total amount paid to Mr. Muelle Flores for provisional payment of the pensions owed is
S/97,600.00 soles.
81. On October 26, 2000, the ONP replied that “it [was] only competent to decide on claims for the
payment of pensions of those institutions whose administration and pension payments [had] been
transferred to it […] by express legal provisions, a situation that had not occurred in the case of [Mr.
Muelle’s] institution [referring to the company]”, and advised him to file his claim with the company
paying his pension.91
82. In November 2004, the ONP sent a new communication to Mr. Muelle Flores in response to his
notarized letter,92 stating that his name “[did] not appear in [its] document processing system of
Decree Law N° 20530, […] [and that] [through a resolution of January 2004] the Pension
Standardization Office -ONP, ha[d] been delegated the task of recognition, declaration, qualification
and payment of pensions of those entities privatized, liquidated, deactivated and/or dissolved under
Decree Law N° 20530 that [had] their own respective financial resources, and that BHP Tintaya S.A.
company [did] not appear to be included among those under the responsibility of the ONP.”93
83. Mr. Muelle Flores sent a notarized letter to the Ministry of Economy and Finance (hereinafter
the “MEF”), requesting information as to whether Law No. 28115 - establishing that the MEF was
the State entity responsible for paying the pensions of workers following the privatization of state
companies (infra para. 102) - was applicable to him. Mr. Muelle Flores also requested information as
to whether after the privatization of Empresa Minera Especial Tintaya S.A., the mandates issued in
the Supreme Court judgments of February 2, 1993, and October 29, 1997, as well as the
Constitutional Court judgment of December 10, 1999, were assumed as an obligation by said
Ministry. In response, Mr. Muelle Flores was informed that “the Ministry of Economy and Finance
ha[d] not assumed the obligations in relation to [his] pension […] given that a judgment by the
Constitutional Court expressly required the Empresa Minera Especial Tintaya S.A. to continue paying
his pension, and therefore Law No. 28115 [was] not applicable to his specific case.”94
to December, 1999; e) February 18, 2000, for the sum of 2,400 soles for pensions corresponding to the months from January
to March, 2000; f) May 11, 2000, for the sum of 2,400 soles for pensions corresponding to the months from April to June of
2000; g) September 22, 2000, for the sum of 4,800 soles for pensions corresponding to the months from July to December
2000, and h) 4,800 soles for pensions corresponding to the months from January to June to December, 2001. Regarding this
last payment, although the Court does not have the corresponding receipt, Mr. Muelle Flores admitted having received it for
the period mentioned. Cf. Receipt of payment and delivery certificate signed by the legal representative of BHP Tintaya and
Oscar Muelle Flores on March 19, 1999; receipts of payment dated June 26, September 21 and December 3, 1999, February
18, May 11 and September 22, 2000 (evidence file, folios 1673 to 1688). See also, Appeal filed by Oscar Muelle on May 17,
2010, (evidence file, folios 74 and 75).
90
Cf. Delivery certificate signed by the legal representative of BHP Tintaya and Oscar Muelle Flores on March 19, 1999
(evidence file, folio 1675).
91
Cf. Communication of the Pension Standardization Office of October 26, 2000 (evidence file, folio 38).
92
Cf. Notarized letter of July 5, 2004 sent by Oscar Muelle Flores to the Pension Standardization Office on August 23,
2004 (evidence file, folios 251 to 256).
93
94
Cf. Letter issued by the Pension Standardization Office November 2004 (evidence file, folio 250).
Cf. Letter issued by the Ministry of Economy and Finance on November 3, 2004 and Report No. 466-2004-EF/65.16 of
October 27, 2004 (evidence file, folios 246 to 249).