125.
In their jurisprudence, both the Commission and the Court have developed a broad concept
of property, which comprises, among other aspects, the use and enjoyment of “property,” defined as those
material objects susceptible of being appropriated, as well as any rights which may be part of a person’s
assets.164 In addition, the Court has protected acquired rights, understood as rights that have been
incorporated into personal net worth. 165 The Commission recalls that the right to property is not absolute
and, accordingly, may be subject to restrictions and limitations, provided that the latter are imposed through
appropriate legal channels and in accordance with the parameters established in Article 21 of the American
Convention166.
126.
In the Case of the "Five Pensioners" v. Peru, the Inter-American Court declared that there had
been violation of the right to property due to the financial impairment caused by failure to comply with
judgments seeking to protect the right to a pension acquired by the victims in accordance with domestic
regulations. In that judgment, the Court pointed out that from the time a pensioner pays his or her
contributions to a pension fund and ceases to serve in the institution concerned with a view to acceding to a
retirement scheme provided for by law, he or she acquires the right for the pension to be governed by the
terms and conditions of that law. It also declared that the pension rights acquired by that person have
"property implications" (efectos patrimoniales) protected under Article 21 of the American Convention.167
127.
Consequently, in that case the Court declared that since the State had changed the amount of
the pensions being received by the alleged victims, and had not complied with court judgments issued
following the filing of amparo suits, the State had violated the right to property recognized in Article 21 of the
American Convention.168
128.
Subsequently in the judgment in the case of Acevedo Buendía y otros Discharged and Retired
Employees of the Office of the Comptroller) v. Peru, the Inter-American Court analyzed a similar case of failure
to comply with judgments ordering that the victims be incorporated in the Decree Law 20530 pension
scheme. The Court considered that those victims met the requirements established by that Decree and that
the pension entitlement that they had acquired had an impact on the property of those who received the
monthly payments169. The Court took into account the fact that the Constitutional Court had issued judgments
ordering the State to pay the victims the pension amounts that had been withheld. Based on that, the Court
considered that the victims had been harmed inasmuch as they "could not effectively exercise their right to
property over the patrimonial effects of their legally recognized adjustable pension; those effects would refer
to the amounts the victims stopped receiving." 170
129.
The Commission considers that said precedents are fully applicable to this case, to the extent
that both the members of ANCEJUB-SUNAT, and the victims in the two abovementioned issues: i) legally
accessed the pension scheme under Decree Law 20530; ii) were deprived of the possibility to continue
enjoying the benefits of said scheme; iii) filed court actions in order to request reinstatement; iv) obtained a
164 IACHR, Case 12.357, Application to the I/A Court H.R., Members of the National Association of Discharged and Retired Staff
of the Office of the Comptroller General of the Republic of Peru, April 1, 2008, par. 72. I/A Court HR. Case of Chaparro Álvarez and Lapo
Íñiguez vs. Ecuador. Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 21, 2007. Series C No. 170, par. 174.
165 I/A Court HR. Case of the “Five Pensioners” v. Peru. Merits, Reparations, and Costs. Judgment of February 28, 2003. Series C
No. 98, par. 102.
166 I/A Court HR. Case of Salvador Chiriboga vs. Ecuador. Preliminary Exception and Merits. Judgment of May 6, 2008. Series C
No. 179, par. 54.
167 I/A Court HR. Case of the “Five Pensioners” v. Peru. Merits, Reparations, and Costs. Judgment of February 28, 2003. Series C
No. 98, par. 103.
168
98, par. 103.
I/A Court HR. Case of "Cinco Pensionistas" vs. Peru. Merits, Repairs and Costs. Judgment of February 28, 2003. Series C No.
169 I/A Court HR. Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the Comptroller) vs. Peru.
Preliminary Objection, Merits, Reparations and Costs. Judgment of July 1, 2009. Series C No. 198, par. 88.
170 I/A Court HR. Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Office of the Comptroller) vs. Peru.
Preliminary Objection, Merits, Reparations and Costs. Judgment of July 1, 2009. Series C No. 198, par. 88.
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