47
97.
that:
In this respect, the First Transitory Final Provision of the 1993 Constitution of Peru establishes
The new obligatory social regimes established for the pensions of public sector
employees do not affect legally acquired rights, particularly the right corresponding to
the regimes of Decree Laws 19990 and 20530 and their modifying provisions148.
98.
When referring to the preceding norm of the Constitution, the Constitutional
Court of Peru indicated that:
The correct interpretation of that provision can only be that it embodies, at the
constitutional level, the acquired rights to a pension by the pensioners subject to the
regimes of Decree Laws 19990 and 20530; acquired rights being understood to be
“those that have entered into our ownership, that are part of it, and of which the entity
from which we have received them cannot deprive us”149.
99.
Furthermore, in a judgment delivered on April 23, 1997, the Constitutional
Court indicated that once the requirements for granting a pension set forth in Decree
Law No. 20530 and its complementary provisions have been fulfilled, the employee:
[…] incorporates into his patrimony, by virtue of the express authority of law, a right
that is not subject to recognition by the Administration, that is not something that the
law grants in some way, that, as has been recalled, arises from compliance with the
requirements established by law. Thus, those who were subject to the regime of Decree
Law 20530 and who, until the entry into force of Legislative Decree 817 had already
complied with the requirements indicated in the norm, that is, they had worked for
twenty years or more, have the right to an equalized pension, in accordance with the
provisions of Decree Law 20530 and its modifying provisions.
100.
that:
In the same way, the Peruvian Constitutional Court indicated in this judgment
Given that the principal effect of incorporation into the regime of Decree Law No. 20530
is: 1) to be a pensioner under this decree law; 2) to be able to acquire the right to a
pension after fifteen years service, for men, and twelve and a half years, for women;
such pensions being regulated as established in article 5 of the said decree law; and 3)
to have the right to an equalized pension, as established in the said decree law. All the
foregoing constitute therefore acquired rights as established in the First Transitory Final
Provision of the Constitution that is in force.
101. It should be recalled that Article 29(b) of the American Convention
establishes that no provision of the Convention may be interpreted as restricting “the
enjoyment or exercise of any right or freedom recognized by virtue of the law of any
State Party… .”
102. In this context, Article 21 of the Convention protects the right of the five
pensioners to receive an equalized retirement pension in accordance with Decree
Law No. 20530, in the sense that it is an acquired right, by virtue of the provisions of
the Peruvian Constitution; in other words, a right that has been incorporated into the
patrimony of the persons.
148
The Constitution of Peru of December 29, 1993 (file of appendices to the application, appendix
64, folios 248 to 289).
149
Judgment of the Constitutional Court of Peru delivered on April 23, 1997, concerning file N°
008-96-I/TC (file of appendices to the application, appendix 65, folios 290 to 322).
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