28
105. In this chapter, the Court will examine the merits of the case. The Court will analyze the alleged
international responsibility of the State based on its obligations under the American Convention in
the case of a pensioner who retired under the Decree Law No. 20530 system, and who stopped
receiving his pension as of February 1991 from a State-owned company that was subsequently
privatized, despite having several judicial rulings issued in his favor, which ordered the restoration of
his pension payments. According to the arguments presented, the international responsibility of Peru
arises from its failure to comply with domestic judgments and its failure to execute these to date, as
well as for the violation of the right to social security derived from Article 26 of the Convention and
the right to property.
106. Thus, in order to examine the arguments presented, the Court will first analyze all those related
to effective judicial protection, non-compliance with domestic rulings and failure to execute such
rulings, in circumstances wherein the State entity that was initially responsible for pension payments
was subsequently privatized. The Court will then consider the issue of reasonable time in the process
of executing the judgments, the alleged violation of the right to social security, pursuant to Article
26, and will finally consider the arguments regarding the violation of Mr. Oscar Muelle Flores’ right
to property.
VII
RIGHTS TO JUDICIAL GUARANTEES130, JUDICIAL PROTECTION131, SOCIAL SECURITY132,
PERSONAL INTEGRITY133, DIGNITY134, PROPERTY135, AND THE OBLIGATION TO ADOPT
DOMESTIC LEGAL EFFECTS,136 IN RELATION TO THE OBLIGATIONS TO RESPECT AND
GUARANTEE RIGHTS (ARTICLES 8(1), 25(1), 25(2)(C), 26, 5, 11(1), 21, 1(1) AND 2 OF
THE AMERICAN CONVENTION)
130
Article 8(1) of the Convention establishes that “Every person has the right to a hearing, with due guarantees and within
a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation
of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor,
fiscal, or any other nature.”
131
Article 25 of the Convention establishes that:
1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for
protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by
this Convention, even though such violation may have been committed by persons acting in the course of their official duties.
2. The States Parties undertake: a) to ensure that any person claiming such remedy shall have his rights determined by the
competent authority provided for by the legal system of the State.
132
Article 26 of the Convention establishes the following: “Progressive Development. 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, subject to available resources, by legislation or other appropriate means.”
133
Article 5(1) establishes that: “Every person has the right to have his physical, mental, and moral integrity respected.”
134
Article 11(1) establishes that: “Everyone has the right to have his honor respected and his dignity recognized.”
135
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.”
Article 2 of the Convention establishes that: “Where the exercise of any of the rights or freedoms referred to in Article
1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to
give effect to those rights or freedoms.”
136