28
to the proceedings.67
77.
Apart from the obligation to provide a prompt, simple and effective
recourse to the alleged victims in order to guarantee their rights, which did not
happen, the Convention also contemplates the right to judicial protection
according to which the State must guarantee compliance with the decisions
rendered by the Constitutional Court in such respect. In this sense, the Tribunal
notes that, in total, more than eleven and eight years have elapsed since the first
and last judgment of the Constitutional Court were rendered, respectively,- and
almost 15 years since the judgment of the First Specialized Civil Chamber of the
Supreme Court of Justice of Lima- and such rulings have not been effectively
complied with. The inefficacy of said remedies has made the right to judicial
protection of the alleged victims to be, at least partially, illusory, considering the
denial itself of the right in question.
78.
It is worth mentioning that the Constitutional Court, by means of
judgment of January 26, 2001, mentioned that, in the domestic proceeding
“subparagraphs (1) and (2)(c) of Article 25 of the American Convention [on]
Human Rights […] have been […] violated […].”68
79.
Based on the foregoing, the Court considers that the State violated the
right to judicial protection enshrined in Article 25(1) and 25(2) (c) of the
American Convention, in conjunction with Article 1(1) thereof, to the detriment of
the two-hundred and seventy-three people mentioned in paragraph 113 of this
Judgment.
C) The right to property in relation to
the violation of the right to judicial protection
80.
The Tribunal still needs to determine whether the partial compliance
with the judgments of the Constitutional Court led to the violation of the right to
property that the alleged victims allegedly have over the patrimonial effects of
the right to an adjustable pension that they acquired, according to the Peruvian
legislation.
81.
In such regard, the Commission alleged “that once the [alleged]
victims terminated their employment in [CGR] and opted for the pension system
established in Decree Law No. 20.530, they acquired, n accordance with the caselaw of the Inter-American Court, […] ‘a right to property over the patrimonial
effects of the right to a pension under [such] Decree Law […] and the terms of
Article 21 of the American Convention”. “Consequently, the Commission
consider[ed] that the payment of the pensions owed from April 1993 to October
2002 is an asset that has been incorporated into the patrimony of the victims".
Hence, for the Commission, “the failure to comply [with] the judgments handed
down, [has] deprived the members of the Association [...] from legally recognized
rights, violating their right to property”.
82.
Likewise, the representatives alleged that, “the failure to pay, from
April 1993 to October 2002, the adjustable pension […], constitutes a violation of
the content of the right to private property embodied in Article 21 of the
Convention”. It also stated that, “any type of pension, provided that it had
entered the patrimony of an individual in full satisfaction of the domestic legal
67
Cf. Case of Salvador Chiriboga V. Ecuador. Preliminary Objection and Merits. Judgment of
May 6, 2008. Series C No. 179, para. 83.
68
1721).
Judgment of October 26, 2001 of the Constitutional Court of Perú, supra note 32 (page