29
requirements, is protected by Article 21”. In this regard, when the members of
the Association fulfilled the requirements established in Decree Law No 20.530,
the right to a pension entered the patrimony of the pensioners, “and they
acquired a right to property over their pensions”, in the way that “the violation of
the right to property continues insofar as, to date, these amounts have not been
reimbursed to their patrimony". In the same line of thought and in relation to the
domestic law of Perú, the representatives mentioned that “Article 886 of the
Peruvian Civil Code indicates that personal property consist of income or
‘pensions of any kind’; in other words, whether or not they are regulated by
special schemes ”.
83.
Moreover, the State put forward the same arguments mentioned above
in relation to the violation of Article 25 of the Convention.
84.
Pursuant to the case law developed by this Tribunal, the concept of
property is a broad one and it comprises, among other aspects, the use and
enjoyment of property defined as those material objects which are susceptible of
being possessed, as well as any rights which may be part of a person’s assets.69
Furthermore, the Court has protected, through Article 21 of the Convention, the
vested rights, understood as rights that have been incorporated into the
patrimony of the persons.70 It seems necessary to recall that the right to property
is not an absolute right, and in this sense, may be subjected to restrictions and
limitations,71 insofar as such restrictions or limitations are established by the
appropriate legal channel72 and, in any event, according to the parameters
established by said Article 21.73
85.
In a case similar to the case at hand,74 this Court declared the violation
of the right to property considering the patrimonial damage caused by the State’s
non-compliance with the judgments that were intended to protect the right to a
pension – right that the victims, of that case, have acquired, according to the
domestic legislation. In such ruling, the Tribunal found that, from the time that a
pensioner pays his contributions to the pension fund, ceases to work for the
institution in question, and opts for the retirement regime set forth in the law,
such pensioner acquires the right to have his pension governed by the terms and
conditions established in such law. Furthermore, the Court declared that the right
to pension that the pensioner acquires produces “patrimonial effects”,75 which are
protected under Article 21 of the Convention. Consequently, in such case, the
Court found that, by arbitrarily changing the amount of the pensions that the
alleged victims had been receiving and by failing to comply with the judicial
rulings arising from their applications for protective measures, the State violated
69
Cf. Case of Ivcher Bronstein, supra note 52, para. 120- 122; and Case of Salvador Chiriboga,
supra note 67, para. 55; and Case of Chaparro Alvarez and Lapo Iñiguez V. Ecuador. Preliminary
Objections, Merits, Reparations and costs. Judgment of November 21, 2007. Series C No. 170, para.
174.
70
Cf. Case of Salvador Chiriboga, supra note 67, para. 55; and Case of the “Five Pensioners",
supra note 61, para. 102.
71
Cf. Case of Ivcher Bronstein, supra note 52, para. 128; Case of Perozo et al., supra note 13,
para. 399; and Case of Salvador Chiriboga, supra note 67, paras. 60 and 61.
72
Likewise and as way of example, the Court notes that Article 5 of the Additional Protocol to
the American Convention in the area of Economic, Social and Cultural Rights 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.”
73
Cf. Case of Salvador Chiriboga, supra note 67, para. 54.
74
Cf. Case of the “Five Pensioners", supra note 61.
75
Cf. Case of the “Five Pensioners", supra note 61, para. 103.