5.
The right to private property in relation to failure to execute internal judgments
relating to pensions
77.
In their jurisprudence, both the Commission and the Court have developed a broad concept of
property, which comprises, among other aspects, the use and enjoyment of “property,” defined as those
material objects susceptible of being appropriated, as well as any rights which may be part of a person’s
assets.105 In addition, the Court has protected acquired rights, understood as rights that have been
incorporated into personal net worth.106 The Commission recalls that the right to property is not absolute and,
accordingly, may be subject to restrictions and limitations, provided that the latter are imposed through
appropriate legal channels and in accordance with the parameters established in Article 21 of the American
Convention.107
78.
In the Case of the "Five Pensioners" v. Peru, the Inter-American Court declared that there had
been violation of the right to property due to the financial impairment caused by failure to comply with
judgments seeking to protect the right to a pension acquired by the victims in accordance with domestic
regulations. In that judgment, the Court pointed out that from the time a pensioner pays his or her
contributions to a pension fund and ceases to serve in the institution concerned with a view to acceding to a
retirement scheme provided for by law, he or she acquires the right for the pension to be governed by the
terms and conditions of that law. It also declared that the pension rights acquired by that person have
"property implications" (efectos patrimoniales) protected under Article 21 of the American Convention.108
Consequently, in that case the Court declared that since the State had changed the amount of the pensions
being received by the alleged victims and had not complied with court judgments issued following the filing of
amparo suits, the State had violated the right to property recognized in Article 21 of the American
Convention.109
79.
Subsequently in the judgment in the case of Discharged and Retired Employees of the Office of
the Comptroller) v. Peru, the Inter-American Court analyzed a similar case of failure to comply with judgments
ordering that the victims be incorporated in the Decree Law 20530 pension scheme. The Court considered that
those victims met the requirements established by that Decree and that the pension entitlement that they had
acquired had an impact on the property of those who received the monthly payments 110. The Court took into
account the fact that the Constitutional Court had issued judgments ordering the State to pay the victims the
pension amounts that had been withheld. Based on that, the Court considered that the victims had been
harmed inasmuch as they "could not effectively exercise their right to property over the patrimonial effects of
their legally recognized adjustable pension; those effects would refer to the amounts the victims stopped
receiving."111
105 IACHR, Case 12.357, Application to the I/A Court H.R., Members of the National Association of Discharged and Retired Staff of
the Office of the Comptroller General of the Republic of Peru, April 1, 2008, par. 72. I/A Court HR. Case of Chaparro Álvarez and Lapo
Íñiguez v. Ecuador. Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 21, 2007. Series C No. 170, par. 174.
106 I/A Court HR. Case of the “Five Pensioners” v. Peru. Merits, Reparations, and Costs. Judgment of February 28, 2003. Series C
No. 98, par. 102.
107 I/A Court HR. Case of Salvador Chiriboga v. Ecuador. Preliminary Objections and Merits. Judgment of May 6, 2008. Series C
No. 179, par. 54.
108 I/A Court HR. Case of the “Five Pensioners” v. Peru. Merits, Reparations, and Costs. Judgment of February 28, 2003. Series C
No. 98, par. 103.
109 I/A Court HR. Case of the “Five Pensioners” v. Peru. Merits, Reparations, and Costs. Judgment of Friday, February 28, 2003.
Series C No. 98, paragraphs 115 and 121.
110 I/A Court HR. Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the Comptroller) v. Peru.
Preliminary Objection, Merits, Reparations and Costs. Judgment of July 1, 2009. Series C No. 198, par. 88.
111 I/A Court HR. Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the Comptroller) v. Peru.
Preliminary Objection, Merits, Reparations and Costs. Judgment of July 1, 2009. Series C No. 198, par. 88.
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