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respect and guarantee rights and to adopt domestic legal effects, as established in the Convention,
the States also have an obligation to adopt measures to ensure that privatization processes do not
have detrimental effects on the rights of its pensioners. This, in consideration of the essential nature
and special importance that the old age pension has in the life of a retired person, as it may constitute
the only income they receive in their old age as a substitute for a salary and to provide for their basic
subsistence needs. The pension, and social security in general, provide a means of protection to
enjoy a life with dignity. Old-age pensions are granted to older persons who, in some cases, such as
Mr. Muelle Flores, find themselves in a situation of vulnerability.214 Indeed, in General Comment No.
6 on older persons, the CESCR has indicated that it is “[…] of the view that States Parties to the
Covenant are obligated to pay particular attention to promoting and protecting the economic, social
and cultural rights of older persons.”215
198. Mr. Muelle Flores stopped receiving his pension in 1991 and, by the end of the 1990s, began
to lose his hearing in one ear, which resulted in a disability (supra para. 84). This situation has
gradually deteriorated over the years, and Mr. Muelle Flores is now 82 years of age and relies on his
family for financial assistance to survive, despite having paid the contributions required under
Peruvian law to enjoy a pension, after 35 years of service to the State (supra para. 44). Owing to
the lack of compliance and execution of the domestic judgments, Mr. Muelle Flores’ right to a pension
has not been guaranteed in a timely manner; on the contrary, to date those judgments have not
been executed, since the corresponding process remains open. Therefore, the existing mechanisms
have not achieved the realization of that right.
199. Also, as indicated previously (supra para.187), one of the constituent elements of this right is
accessibility which, in turn, includes the components of participation and information. Thus, Mr.
Muelle had the right to receive timely, clear, transparent and complete information on the effects
that the privatization might have on the payment of his pension, something that did not occur in this
case. Although the company, when it was State-owned, had the obligation to pay Mr. Muelle Flores’
pension, it was evident that, after privatization, this right could have been affected owing to the
transfer of a public company to private ownership. One of the clearest negative effects of the
privatization process was the failure to determine which entity would be responsible for the
administration and payment of the pensions of retired workers. Indeed, once the decision had been
taken to privatize the company, the State had the duty to clearly establish the consequences of the
privatization on the pensions it had granted, explicitly determining who would have responsibility for
paying Mr. Muelle Flores’ legally recognized pension and providing him with relevant, adequate and
timely information.
200. From the evidence provided to this Court, the State did not, at any time, provide timely and
comprehensive information to Mr. Muelle Flores on the manner in which his right to a pension would
be made effective after privatization, especially in light of the existing judicial ruling. In particular,
the Court notes that the State did not explicitly and clearly establish which entity would be in charge
of the administration and payment of Mr. Muelle Flores’ pension, since the public company, which
should have been responsible for the payment until that moment, was to become a private company.
This lack of clear regulation and information regarding who would be responsible for paying Mr.
Muelle Flores’ pension created a situation of uncertainty over its payment which, instead of facilitating
his enjoyment of that right, made it exceedingly difficult. The change in the company’s legal status
214
The inter-American system adopted the Inter-American Convention on Protecting the Human Rights of Older Persons
on June 15, 2015, an instrument specifically for the protection of older persons, precisely due to the situation of vulnerability
that they could face. This instrument has been in force since January 11, 2017. Article 2 of that instrument establishes that
“For the purposes of this Convention the following definitions shall apply: “Older person”: A person aged 60 or older, except
where domestic legislation has determined a minimum age that is lesser or greater, provided that it is not over 65 years. This
concept includes, among others, elderly persons. The State of Peru has not ratified this agreement.
215
UN, CESCR, General Comment No. 6, (1995), para. 13.