31
VII
ARTICLE 26 (PROGRESSIVE DEVELOPMENT OF ECONOMIC, SOCIAL AND CULTURAL
79
RIGHTS)
OF THE AMERICAN CONVENTION
92.
The representative further asserted that "the failure to pay the
pensions accrued from April 1993 to October 2002 […] also constitutes a violation
of the right to social security as enshrined in Article 26 of the Convention, which
contains a provision that refers to economic, social, educational, scientific and
cultural rules contained in the OAS Charter”. Hence, according to the
representative, “ the general obligation to respect and guarantee, as well as the
adaptation of domestic law, that apply with regard to all civil and political rights
[…], also apply with regard to the economic, social, and cultural rights.”
93.
In that same line of thought, the representative indicated that “[t]he
right to an [adjustable] pension, which the [victims] acquired, as well as its
conditions, form part of the right to social security” which was specifically
protected by the ruling of the Constitutional Court of October 21, 1997.
Therefore, “the failure to comply with the judicial rulings [in] this case does not
only entail a violation of the right to effective judicial protection but it also implies
a direct violation of the right to social security […] fully actionable at this judicial
venue".
94.
In this way, the representatives emphasized that “by adopting and
applying Decrees No.] 25597 and 036-93-EF the State violated the duty of
progressive development imposed upon it within the framework of the
implementation of the human right to social security” pursuant to Article 10 of the
Peruvian Constitution, according to which “the State acknowledges all people their
universal and progressive right to social security, to protect them against all legal
contingencies and to improve their quality of life”. The representatives further
asserted that “as of April 1993 to October 2002, [the State] made a step
backwards in the level of protection of that right as afforded to each one of the
victims, to whom the State withheld nine-tenths of the amount that they should
have received, violating their right to social security “. "[Said] step backwards
was unjustified, insofar as the State did not allege or prove, at any moment, that
it had implemented the seizure of pensions in order to preserve the general
welfare within the democratic society”.
95.
The Commission did not allege the violation of Article 26 of the
American Convention.
96.
Moreover, the State presented its position in this regard by means of a
preliminary objection (supra para. 12) pointing out that, “if the rights allegedly
violated by the Peruvian State are pension rights, […] “we would be in a situation
that exceeds the competence of the […] [Inter-American] Court”.
97.
The Court considers it is appropriate to recall the terms indicated in
chapter III of this Judgment, in the sense that the Tribunal is fully competent to
analyze the violations of all the rights enshrined in the American Convention
(supra para. 16). Moreover, even though the Commission did not allege the
79
Article 26 of the Convention (Progressive Development) establishes that: The States Parties
undertake to adopt measures, both internally and through international cooperation, especially those
of an economic and technical nature, with a view to achieving progressively, by legislation or other
appropriate means, the full realization of the rights implicit in the economic, social, educational,
scientific, and cultural standards set forth in the Charter of the Organization of American States as
amended by the Protocol of Buenos Aires.