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was supposed to make the payments, according to the legal norms in force at the
time: the Ministry of the Economy and Finance. And, it has alleged that the latter
was not cited in the proceeding in which the respective judicial decisions were made.
I would like to set out some of the reasons for which, in my opinion, the Court was
right in rejecting those arguments (some of these reasons are additional to, and
others different from the ones that the Court advanced in its considerations):
Article 25 of the American Convention refers to a “simple and prompt”
recourse and, in any case, to an “effective recourse” for protection against
violations of the fundamental rights recognized by the domestic laws or by the
Convention itself.
The corresponding judicial proceeding should not be subject to formalism or
ritualism that is inappropriate for a recourse aimed at the prompt safeguard of
the fundamental rights of the individual.
There is nothing to prevent the domestic legal system from adopting
provisions concerning the due integration of the adversary proceeding into the
respective procedure, but these provisions may not disregard the special
nature of the corresponding recourse.
As provided for in legislation or established by case law in some countries, the
judge of the recourse must abstain from delivering a restraining order when
joint litigation has not been established and should proceed de oficio to take
measures to incorporate the adversary proceeding.
When evaluating the argument that the plaintiff addressed the recourse
against the wrong entity, it is necessary to consider whether the plaintiff
proceeded reasonably and advisedly when he indicated the respondent entity.
(In this respect, it should be recalled that the victims in this case submitted
their applications for amparo against the Superintendency of Banks and
Insurance before Decree Law 25792 transferred the obligation to continue
paying the respective pensions to the Ministry of Economy and Finance).
In view of the prompt nature of the recourse, it is also necessary to take into
account whether the State entity that was not formally summoned to the
proceeding, knew about it in any way or intervened in it in any way and
could, consequently, have appeared at the said proceeding to defend itself
(there is evidence in the file that the Ministry of Economy and Finance was
aware of the application for amparo and the compliance proceeding).
In the case of applications for protective measures, it is necessary to consider
whether there are close functional and operational relations between the
respondent entity and the one that should be present in order to incorporate
the adversary proceeding concerning the matter submitted to judicial
examination.
Regarding the incorporation of the adversary proceeding, in applications for
protective measures, the plaintiff should not be responsible for situations
resulting from the internal restructuring of the State and the redistribution of
competences and responsibilities among its different entities.