56
structure, each has its own autonomous judicial representation, and this
situation makes it necessary to take legal action against them expressly when
they are attributed any conduct that is not in accordance with the law.” “It
would be unacceptable to affirm that, because a claim had been filed against
the […] Superintendency, the whole of the State of Peru was aware of the
claims”;
e)
The five pensioners “filed applications for amparo against the
Superintendency of Banks and Insurance, the effect of which is to restore
matters to their status prior to the alleged violation of rights. At that time, it
was considered that what was ordered had been complied with, as there was
no ruling that ordered the payment of any specific amount”;
f)
The judgments corresponding to Carlos Torres Benvenuto, Reymert
Bartra Vásquez and Maximiliano Gamarra Ferreyra did not determine the
amount of the pensions that corresponded to them, so that there was “a
difference of interpretation about the amount of the pension, an issue that
can only be examined in the domestic jurisdiction and [in] the context of a
judicial proceeding in which evidentiary mechanisms can be used, and not in
an application for protective measures.” If the plaintiff considered that the
pension he was paid was not the correct amount, he should have filed the
respective judicial proceedings so that the exact amount of the pension could
be determined;
g)
The three judgments of the Constitutional Court were delivered after
the petition against Peru had been submitted to the Inter-American
Commission, and were not filed against the MEF.
“By filing these
applications against a body that was inappropriate according to law [...] it
made their execution impossible; the latter was facilitated by the recent
annulment of Act 25792 [in 2002], immediately after which the [SBS]
complied with the ruling, even though the plaintiffs did not have this right.” In
the three compliance proceedings, the SBS was expressly cited and the MEF
was not cited, “which was juridically impossible since it had not been a party
to the first proceeding”;
h)
As a result of a legal error committed by the SBS – by issuing a
decision, which exceeded its competence – based on compliance proceedings
and the injunction to the officials of this institution, the pensions were paid,
taking as a reference the salary of SBS employees who were under the
private sector regime. However, the SBS has reserved “the right to act in
accordance with the law” because the five pensioners or their heirs have
received extremely high amounts for the concept of repayments, which did
not correspond to them, since, in order to adjust their pension, an
inappropriate salary reference was used;
i)
“As a result of the judicial rulings arising from applications for
protective measures that have been executed[, …] the claimants are receiving
a pension that does not correspond to them, considerably higher than other
pensioners in the country, merely as a result of having resorted to an
inappropriate procedure, in which there has been no ruling on merits with
regard to the admissibility of the pension claimed, but only that it should
continue, because it had been modified by law”;
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