46
of Banks and Insurance.” The five pensioners are attempting “to project the
effects of judgments that have been complied with onto a new situation that
occurred subsequently, owing to the application of a subsequent norm”;
j)
The five pensioners were employed under the public labor regime and
none of them worked under the private sector labor regime. By authority of
law and provisions of the Constitution, services rendered under the two
regimes cannot be accumulated. The five pensioners are claiming “that they
should be recognized a right that does not correspond to them”, which is the
regulation or updating of their pensions, taking as a reference the salary of
the acting official of the SBS, who belongs to a different labor and pension
regime; and
k)
The State has paid the five pensioners the pension repayments
demanded and has decided “to continue to make the said payment in the
amount established, which is not the amount that is legally owing, provided
this is not reverted by a national judge.” “[T]he applications for amparo filed
by the pensioners in the domestic courts have only decided that matters
should be restored to their status prior to the alleged violation, but there has
been no ruling on the merits of the right claimed.”
Considerations of the Court
93.
Article 21 of the Convention establishes that:
1.
Everyone has the right to the use and enjoyment of his property. The law may
subordinate such use and enjoyment to the interest of society.
2.
No one shall be deprived of his property except upon payment of just
compensation, for reasons of public utility or social interest, and in the cases and according
to the forms established by law.
3.
Usury and any other form of exploitation of man by man shall be prohibited by law.
94.
The Court observes that, in the instant case, there is no dispute between the parties about
whether the alleged victims have the right to a pension. They all agree that Carlos Torres Benvenuto,
Javier Mujica Ruiz-Huidobro, Guillermo Álvarez Hernández, Maximiliano Gamarra Ferreyra and Reymert
Bartra Vásquez, when they ceased to work at the SBS, obtained the right to the retirement pension
established in Decree Law No. 20530147. The dispute between the parties relates to whether the
parameters used by the State to reduce or recalculate the amounts of the pensions of the alleged victims
as of 1992 represented a violation of their right to property.
95.
In order to settle the dispute between the parties, the Court will examine two points in particular:
a) whether the right to a pension can be considered an acquired right and what this means; and b) what
parameters should be taken into consideration to quantify the right to a pension, and whether it is possible
to cap a pension.
96.
a)
First point. Regarding whether the right to a pension is an acquired right or not, this
dispute has already been settled by the Constitution of Peru and the Peruvian Constitutional Court.
147
The said Decree Law No. 20530, entitled “Pension and Compensation Regime for Civil Service
to the State not covered by Decree Law 19990”, stipulates that:
Art. 4. Employees acquire the right to a pension when they have completed fifteen years of real
and paid service, for men, and twelve and a half, for women.
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