36
Indeed, the MEF informed Mr. Muelle Flores that it was not responsible for his pension payments,
despite the regulation adopted establishing that this Ministry would be responsible for administering
and paying the pensions of Decree Law No. 20530 retirees of privatized companies, based on the
fact that the order issued by the Constitutional Court was against a company that was now private.
137. By virtue of its obligations, the Court considers that the State should not only have complied
with the pension payments ordered by the courts immediately, and with special due diligence and
promptness, this being a benefit of an “alimentary and income-substituting nature”151 (infra para.
162), but it should also have established clearly and precisely which entity would be responsible for
complying with the judicial ruling issued prior to the privatization process, clarifying the matter ex
officio and redirecting the procedure to the State entity that would be responsible for making the
corresponding payments. This did not occur in the instant case; on the contrary, that responsibility
was transferred to the victim.
138. The State also indicated that from May 2002, with the enactment of Law No. 27719 and
subsequent laws that expanded and/or modified it (Laws No. 28115 and No. 28449), “the payment
of pensions originating from an entity that has been privatized [would be] under the responsibility of
the Ministry of Economy and Finance”152 (supra paras. 101). In this regard, the State considered that
it had indeed adopted measures to protect the pension rights of former employees of privatized
companies. Nevertheless, it recognized that these measures had not been applied in this specific
case. Although the Court considers positive the regulatory changes adopted in 2002, it notes that
these occurred nearly eight years after the privatization, and not prior to that process. Similarly,
despite the regulatory changes, the MEF did not assume the payment of Mr. Muelle Flores’ pension
but, on the contrary, stated that it was not obliged to do so, since the ruling of the Constitutional
Court judgment of 1999 had been directed against a private company. Therefore, the Court considers
that the adoption of the regulations cited did not result in the payment of the corresponding pension.
139. In view of the foregoing, the Court considers that the State’s failure to adopt regulatory or
other types of safeguards to prevent a violation of Mr. Muelle Flores’ rights as a consequence of the
privatization process, created an obstacle that prevented the victim from obtaining his legally
recognized pension and hindered the execution of the amparo judgments. This resulted in Mr. Muelle
Flores being unable to enjoy, even to this day, the pension to which he had contributed and to which
he had acquired full rights. Therefore, the State is responsible for the violation of Article 2 of the
Convention for the failure to adopt measures, at least until 2002.
iii)
Lack of effectiveness of the execution of judgment proceedings: lack of
coercive mechanisms and measures to reverse the effects of privatization
140. As this Court has already established, compliance with and enforcement of judgments are both
components of the right of access to justice and to effective judicial protection. Likewise, the
effectiveness of judgments depends on their execution, given that the right to judicial protection would
be illusory if the State’s domestic legal system were to allow a final and binding judicial decision to
remain inoperative to the detriment of one of the parties.153 The Court considers that as part of the
duty to ensure effective means and mechanisms to execute final decisions, the States “must establish
monitoring and enforcement of compliance mechanisms that are available and accessible in practice
[…] [such as different types of coercive measures, including,] sanctions against those who hinder
151
Cf. Affidavit rendered by Christian Courtis on August 30, 2018 (evidence file, affidavits, folio 1821).
152
Cf. Answering brief of the State to the IACHR Merits Report N° 3/17 and observations to the pleadings and motions
brief of the representatives of the alleged victim (merits file, folio 310).
153
Cf. Case of Acevedo Jaramillo et al. v. Peru, supra, para. 219.