60
226. The representatives asked the Court to order the State to implement, immediately, the
equalized pension in favor of Mr. Muelle Flores, on the terms established in the judgments of the
Supreme Court of Justice and the Constitutional Court. They also requested that the State adopt
some basic secondary obligations, namely: i) ensure that the pension payments respect the victim’s
acquired right to equalization, and that the amount paid is equivalent to the current remuneration of
a public servant in a position of the same rank as that held by Mr. Muelle Flores when he retired; ii)
guarantee Mr. Muelle Flores “immediate access to the health system” and to all social security
benefits available to pensioners protected under the Decree Law No. 20.530 pension scheme, and,
iii) reestablish the payment of a provisional pension of S/800 soles monthly, immediately and
provisionally, until the total value of the equalized pension has been calculated.
227. In their brief of January 9, 2019, and in relation to the measures adopted by the State and
described infra, the representatives considered that the payment of the provisional pension to Mr.
Muelle Flores constituted a major step forward in settling the case and in guaranteeing his rights.
However, they emphasized that this was a provisional measure and disputed the amount calculated
by the State (S/1,337.61 new soles), considering that it did not correspond to the amount of an
equalized pension, which should take as reference the salary of an employee of the same hierarchical
rank (as that held by the victim). They argued that they had encountered evidentiary obstacles in
determining the current or updated value of the equalized pension; however, as a point of reference,
based on the current salaries of public servants holding strategic and/or management positions, as
cited in the State’s Transparency Portal, the current salaries ranged from S/13,000 to S/22,600 new
soles. They emphasized that some functions which required a lower level of education, such as drivers
and others, received higher wages than those offered by the Peruvian State. The representatives
requested that the amount due be determined based on the criterion of equity, and on the amounts
currently received by those in public sector management positions, with a value of no less than
S/15,600 new soles.
228. The State argued that the Judiciary was currently engaged in efforts to conclude the execution
process of the first amparo ruling, and noted that the Commission had not claimed any delay in the
execution of the second amparo judgment. In addition, the State emphasized that, in the event of
being ordered to pay the equalized pension, it would be necessary to deduct from the total sum
ordered the amounts corresponding to the payments made between 1999 and 2001, reiterating that
these were duly accredited in the respective documentation. It stressed that if the Court should find
the State responsible, it would not object to adopting the measures contemplated in the domestic
regulations for executing the payment of the amounts owed, with the corresponding interest,
together with the “health insurance” requested.
229. Likewise, in its brief of December 20, 2018, the State reported that through Executive
Resolution No. 635-2018-EF/43.02 of the MEF, and in the context of the request for provisional
measures presented by the representatives (supra para. 12), it had decided to re-establish ex officio,
and provisionally, the pension of Mr. Muelle Flores for the sum of S/800 new soles monthly, with the
deductions required by law, as of January 1, 2018, and until the Court issues the corresponding
Judgment. The State indicated that after that, the ONP would determine the ranking, salary level
and amount that the victim should receive, which it estimated would total S/1,337.61 new soles, as
established by the MEF. The State also reported that it had re-established medical care for Mr. Muelle
Flores through the social health insurance system, EsSalud, and therefore he should register in order
to have immediate access to those services. In view of the actions taken, the State asked the Court
to deduct the amounts allocated from any compensation that it might eventually order.
B.2. Considerations of the Court
230. As this Court has already established, the reparation of the harm caused by the violation of an