50
111. As of November 1992, in light of Article 5 of this decree law and the
interpretations of Decree Law No. 20530, the five pensioners continued to be paid a
pension that was approximately 78% lower than the one they had received in March
and August 1992.
112. In other words, since April and September 1992, and after the promulgation
of Decree Law No. 25792, the State modified the parameters for determining the
amount of the equalized pension, considerably reducing the amount of the monthly
pensions the alleged victims had been receiving.
113. As a result of the applications for protective measures filed by the five
pensioners (supra paras. 88(h) and 88(l), 89(c), 89(e), 89(j), 89(l), 89(q), 89(s),
89(x) and 89(ee)), five judgments on amparo were delivered in 1994 and three
judgment on compliance were delivered between 1998 and 2000, ordering that they
should continue to be paid the pension they had been receiving before the said
reductions were made.
114. The SBS paid only the amounts owed up until October 1992 and, to this end,
it based the calculations on the salary received by its active officials. However, this
was the only equalized pension payment that the pensioners received after the
judicial rulings had been delivered until, in March 2002, the situation changed; this
will be examined below (infra para. 119). Consequently, for several years, the State
failed to fully implement the said judgments.
115. The Court observes that, although the State authorities could have
established the equalized pension in accordance with the salary received by an
official subject to the public sector regime of a similar level or category to that of the
alleged victims when the SBS employees changed to the private sector regime
(1981), they did not do so. Moreover, it was the State itself that, as of the time the
alleged victims opted for the pension regime of Decree Law No. 20530, recognized,
by administrative decisions, that they had a right to a pension amount equalized with
the salary of an active SBS official. In addition, but even more important, when
ruling on the applications for protective measures filed by the five pensioners, the
domestic courts ordered that the monthly pensions should continue to be paid as
they had been paid; in other words, equalizing them with the salary received by
active SBS officials, who belonged to the private sector regime. This constitutes a
right, to the benefit of the pensioners, emanating from the judgments on protective
measures, which, when it was disregarded by the State, affected their patrimony,
violating Article 21 of the Convention.
116. Although the right to an equalized pension is an acquired right, in accordance
with Article 21 of the Convention, States may restrict the enjoyment of the right to
property for reasons of public utility or social interest. In the case of the patrimonial
effects of pensions (the pension amount), States may reduce these only by the
appropriate legal procedure and for the said reasons. Moreover, Article 5 of the
Additional Protocol to the American Convention in the area of Economic, Social and
Cultural Rights (hereinafter “Protocol of San Salvador”) allows States to establish
restrictions and limitations on the enjoyment and exercise of economic, social and
cultural rights “by means of laws promulgated in order to preserve the general
welfare in a democratic society only to the extent that they are not incompatible with
the purpose and reason underlying those rights.” In any case, if the restriction or
limitation affects the right to property, this should also be established in accordance
with the parameters established in Article 21 of the American Convention.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos