3
resulting from the internal restructuring of the State and the redistribution of
competences and responsibilities among its different entities.
I also consider that the Court was right to link the violation of the right to property
(Article 21) with the right to an effective recourse (Article 25). Since the Court
abstained from elucidating the questions posed at the beginning of this document, in
principle, it lacked the grounds for declaring that the five pensioners suffered a
deprivation of their patrimony. After all, the rulings on the applications for protective
measures provided the pensioners with recognitions that clearly have patrimonial
effects. By disregarding them, the State violated the pensioners’ right to property.
The Court – again, with reason – prefers succinct and sober language.
Consequently, it does not like to use expressions with a conceptual emphasis,
particularly if they have philosophical embellishments.
This is almost always
sensible. However, at times, it would be useful to have those emphases; and, I
believe this is true in the instant case.
In my opinion, the Court should have made it clear, in the corresponding considering
paragraphs, that it considered that there had been a violation of the right to property
of the pensioners, conceived in the terms of the judgments on the applications for
protective measures, or – and this is another way of saying it – inasmuch as that
right had been violated by the failure to comply with these judgments. By avoiding
the use of expressions such as these, the judgment to which this separate opinion
refers may suggest that the Court found that Article 21 of the Convention had been
violated without being related to a violation of Article 25, which is not the case.
*
*
*
I share the Court’s decision to abstain from declaring that Article 26 of
the American Convention has been violated, but the reasons which
lead me to do so are different from those set out in the considering
paragraphs of the judgment.
In the instant case and for the above-mentioned reasons, the Court
did not attempt to rule on the merits of the question of what the rights
of the five pensioners were under domestic law, nor did it attempt to
determine whether the reduction in the pensions corresponded to a
valid interpretation of the real purport of the pre-existing legal
provisions, or to a modification (more exactly, a reduction) of the
normative standards relating to the recognition of the right to a
pension and its payment. In these circumstances, the Court lacks a
solid basis to declare that Article 26 has been violated and this is what
it should have argued in order to act in consequence.
The Court took a different line of reasoning. It indicated that the
progressive development of economic, social and cultural rights should
be measured in function of their increasing coverage of the entire
population, and not in function of the circumstances of a very limited
group of pensioners, who were not necessarily representative of the
prevailing situation.
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