44
subject to the pension regime of Decree Law No. 20530 forms part of the
substance of the right to property safeguarded by Article 21 of the
Convention; and
e)
“Until 1990, and in accordance with the provisions of the different
norms that reopened the pension regime regulated by DL 20530, and also
with the rulings of the corresponding administrative courts, [the]
accumulation [of services rendered to the public administration under public
and private sector labor regimes] was invariably and regularly practiced by
the public administration, including the Superintendency of Banks and
Insurance itself”.
The arguments of the State
92.
With regard to Article 21 of the Convention, the State indicated that, in the
application, the Court was requested to declare that Peru was responsible for the
violation of this article because, to the detriment of the five pensioners, it had
reduced the amount of the equalized pensions “by law (apparently Decree Law
25792).” In this respect, Peru stated that the said Decree Law No. 25792 was
annulled by Act No. 27650, published on January 23, 2002, and added the following
arguments:
a)
The annulment of this law “did not introduce major changes in the
situation of the pensioners[,] except that their pensions would be paid by the
Superintendency of Banks and Insurance; however, it did not alter the
amount received, because the said annulment does not grant them any right
that differs from the one that corresponds to them[,] which is to receive a
renewable pension referred to the system of Decree Law 20530 and not to an
employee subject to the private sector labor regime”;
b)
The application is not correct when it affirms that Decree Law No.
25792 was a legal argument of the State to disregard the acquired right of
the five pensioners to collect a pension equalized with the salary of the
employee occupying the same position or a similar function to that occupied
by the pensioners when they ceased to work for the SBS. The said law “is
subsequent to the reduction made by the Superintendency of Banks and
Insurance, which was regularized by the payment of reimbursements”;
c)
The pensions granted to the alleged victims “were those corresponding
to them as pensioners under the regime of Decree Law 20530”. Moreover,
Decree Law No. 25792 did not impose caps on pensions “because the caps
existed before the said legal norm.” The second part of article 5 of the said
norm “did not contain any capping effect that was not included in various
laws” and in the Constitution; “it did not affect the five pensioners because it
only ratified that, for the effects of equalization, their pensions were referred
to the personnel of the public sector employees’ regime.” When the State has
established caps, it has done so by means of clear, precise legal provisions, in
which it has indicated the maximum pension that could be granted; for
example, in the 1991 Budget Act, extended to 1992;
d)
There was no legal or constitutional impediment to prevent the
payment of the pensions being transferred to the MEF through the provisions
of Decree Law No. 25792, “because the State was empowered to indicate
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