55
to the appropriate State entity to comply with the judgments and knowing the
functions of the different entities, much less when the State itself recognizes
that its entities are not fully aware of what other entities are doing.
The arguments of the State
124.
Regarding Article 25 of the Convention, the State argues that:
a)
It considers that the application is inadmissible because it is not
possible to qualify “as a violation of human rights, unfinished procedural
actions resulting from measures taken by the pensioners in the national
jurisdiction before they filed the application.” When recurring to the InterAmerican Commission, the five pensioners “were involved in domestic
proceedings; therefore, there was no refusal to comply with judicial
decisions.” “[A]ny questioning of the admissibility of the application, owing to
non-exhaustion of the procedure indicated in the domestic jurisdiction of
Peru, should be decided on together with the judgment and based on the
body of evidence contributed by the parties”;
b)
The applications for amparo “were filed against the SBS as a
consequence of the rectification of an legal error in the payment of the
pension.” The decisions of the SBS, recognizing the retirement pensions,
indicate that retirement was related to a category and a sub-category;
however “at some time, there was an error of interpretation, and the pension
began to be referred to what an employee of the private sector labor regime
received [… and w]hen this error was detected, the respective corrective
measure was applied”;
c)
The 1994 judgments of the Supreme Court of Justice, arising from the
applications for amparo filed in 1992 against the SBS owing to the reduction
in the pensions, were duly complied with by this institution, which paid the
pensions up until the date on which it ceased to be responsible for them by
law. No reference was made to Decree Law No. 25792, because it was
subsequent to the facts on which the claims that motivated the judgments
were based and, when the said judgments were delivered, the responsibility
for paying the pensions had been transferred to the MEF by the provisions of
Decree Law No. 25792. It was not possible to extend the obligations that
corresponded to the SBS up until the entry into force of the said decree law to
the MEF “without them having been expressly attributed to it in a judicial
proceeding.” When Decree Law No. 25792 was promulgated – following the
date of the applications for amparo and before the judgments had been
delivered – “the plaintiffs did not question the provisions of this norm or
request that the Ministry of Economy and Finance should be incorporated into
the preceding proceedings.” “Therefore, it cannot be affirmed that there has
been a refusal to comply with these rulings (because the [SBS] has already
complied with them) and no action has been filed as a consequence of Act
25792.” There has not been a failure to comply with the judgments since the
judgments “were complied with insofar as legally possible, because no action
was filed against the Ministry of Economy and Finance as it should have
been”;
d)
“[E]ven though it is true that both the Superintendency of Banks and
Insurance and the Ministry of Economy and Finance form part of the State
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