20
certain limitations are developed. It is essential to stress that an older person will not
necessarily have a disability because they reach a specific stage of their life; however, social
security plays a fundamental role – owing to the wide range of services that it includes – for
a certain group of individuals, such as older persons.
65.
Another kind of negative result of excessive delay in the execution of judgments
recognizing the right to social security concerns the feelings of anguish. Although this was not
alleged by either the Inter-American Commission or the victim’s representatives, the InterAmerican Court determined that this type of effect goes beyond the purely material aspect.
For this reason, the Inter-American Court included the right to personal integrity (Art. 5 of the
American Convention) and the right to dignity (a right derived from a broad interpretation of
Article 11 of the Pact of San José) using the iura novit curia principle.
66.
Thus, as the judgment concludes, “”[t]he failure to implement the right to social
security for more than 27 years seriously prejudiced the quality of life and the health care
coverage of Mr. Muelle, an individual in a situation requiring special protection because he was
an older person with a disability. The violation resulting from the failure to pay his pension
exceeded a reasonable time and, as this was the victim’s only income, the prolonged absence
of the payments inevitably resulted in financial hardship that affected his ability to pay for his
basic necessities and, consequently, affected his mental and moral integrity, as well as his
dignity.”105
67.
The Muelle Flores case reveals that the confluence of different factors of vulnerability
– that have traditionally been identified by the Inter-American Court in cases of discrimination
against women106— may also apply in situations that do not involve sex/gender. In the instant
case, “age” and “a hearing disability” represent multiple forms of vulnerability in the life of
Mr. Muelle Flores and had important consequences, taking into account the failure to execute
the domestic judgments that had recognized the right to social security.
68.
All these elements that permeate the judgment of the Inter-American Court have
special relevance for a social group that, for many years, was not protected by the main
international human rights instruments. Furthermore, it is no coincidence that the precedents
concerning older persons correspond to rights of a social nature because, in many cases it is
this vulnerable group – frequently characterized by poverty, marginalization and exclusion –
who are denied their basic rights. Hence, “it is necessary to advance along the path of equality
and build welfare States for the entire population, in which social protection is an effective
right.”107
Eduardo Ferrer Mac-Gregor Poisot
Judge
Cf. Case of Muelle Flores v. Peru. Preliminary objections, merits, reparations and costs. Judgment of March 6,
2019. Series C No. 375, para. 207
105
Among others: Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits, reparations and costs.
Judgment of September 1, 2015. Series C No. 298; and Case of Cuscul Pivaral et al. v. Guatemala. Preliminary
objection, merits, reparations and costs. Judgment of August 23, 2018. Series C No. 359.
106
Economic Commission for Latin America and the Caribbean (ECLAC)), Social Panorama of Latin America,
2018 LC/PUB.2019/3-P, Santiago, 2019, p. 14.
107