27
to remain inoperative to the detriment of one party.63
74.
In the instant case, the alleged victims filed actions for amparo that,
due to its own nature and according to the terms of Article 25(1) of the
Convention, should be simple and prompt recourses. Therefore, the State had the
obligation to establish prompt procedures and avoid any delay in their Orders in
order to impede an abridgment of the right in question.64 However, the Court
notes that almost four years and a half elapsed since the alleged victims filed
their first remedy of amparo and the remedy was solved. Moreover, two years
have elapsed since the second remedy of amparo, which has not been resolved
yet, was filed in order to comply with the terms of the first remedy. This proves
that the processing of the amparo remedies was not prompt.
75.
Besides, the recourses have not been fully effective in guaranteeing
the right in question. Notwithstanding the fact that they filed two remedies of
amparo, which were decided in their favor, the protection of the right that was
acknowledged to them by such means has not been fully materialized (infra para.
89), given that the pension amounts owed and unpaid from April 1993 to October
2002 have still not been paid to them (supra paras. 61 to 65). In this regard, the
State mentioned budgetary constraints as justification for failure to comply with
the judgments (supra paras. 61 and 62). In this sense, it is worth repeating that
in order for the remedies of amparo filed in this case to be truly effective, the
State should have adopted the necessary measures to comply with them, which
include measures of a budgetary nature. Even though the State has stated that it
had adopted a series of administrative, legislative and judicial measures aimed at
overcoming said economic constraint in order to comply with its treaty obligations
(supra paras. 61 and 62) these measures have still not been implemented.
Hence, the Tribunal has held that budget regulations may not be used as an
excuse for many years of delay in complying with the judgments.65
76.
Moreover, the Tribunal acknowledges that Peruvian laws contemplates
a procedure to execute judgments, which was formally implemented after the
judgment of January 26, 2001 (supra paras. 50, 51 and 64) and that certain
decisions must be made in said procedure in order to comply with the rulings of
the Constitutional Court and issue different orders. Besides, the Court notes, as
emphasized by the State, that the judicial determination of the amount owed has
still not been determined (supra paras. 51 and 64). Nevertheless, this does not
exonerate the State from its responsibility; instead, it proves that the judicial
remedies instituted to seek compliance with the judgments of the Constitutional
Court were completely ineffective and this is not a reasonable justification in the
face of the delay in the enforcement of the final judgments of said court.66 The
State's obligation to guarantee the efficacy of its judicial recourses derives from
the American Convention and such obligation cannot be limited by rules of
domestic procedure or exclusively depend on the procedural effort of the plaintiff
63
Cf. Case of Acevedo Jaramillo et al., supra note 45, para. 219. Cf. also, ECHR, Case of
Antoneeto V. Italy. Judgment of July 20, 2000, Nº 15918/89, para. 27; Case of Immobiliare Saffi v.
Italy [GC], Judgment of July 28, 1999, Nº. 22774/93, para. 63, and Case of Hornsby v. Greece, supra
note 56, para. 40.
64
Cf. Case of Apitz Barbera et al. (“First Court of Administrative Disputes") V. Venezuela.
Preliminary Objection, Merits, Reparations and Costs. Judgment of August 5, 2008. Series C Nº 182,
paras. 156 and 170.
65
Cf. Case of Acevedo Jaramillo et al., supra note 45 para. 219. Cf. also ECHR, Case of “AmatG” LTD and Mebaghishvili v. Georgia, Judgment of 27 September 2005, no. 2507/03, para. 48; Case
of Popov v. Moldova, Judgment of 18 January 2005, no. 74153/01, para. 54, and Case of Shmalko v.
Ukraine, Judgment of 20 July 2004, no. 60750/00, para. 44.
66
Cf. Case of Acevedo Jaramillo et al., supra note 45 para. 269.