30
the right to property embodied in Article 21 of the Convention.76
86.
In this regard, Decree Law No. 20530, subject-matter of the instant
case, established a pension scheme under which workers of the public sector
"acquired the right to [a] pension” in certain situations.77 Consequently, the
Constitutional Court established that “the right to an adjustable pension of Social
Security [whose exercise is enshrined in the Constitution], [was] guaranteed for
all the beneficiaries of the Public Administration, [and was] unalienable.”78
87.
Furthermore, it has been established that the victims satisfied all the
situations or elements necessary to acquire the right to an adjustable pension,
governed according to the terms and conditions of Decree Law No. 20530 and
that after they ceased to work for the CGR, they opted for the regime of
adjustable pension set forth in such law. Afterwards, as of April 1993 to October
2002, the State restricted that right, by reducing the amount of their pensions,
on application of Decree Law No. 25597 and Supreme Decree Nº 036-93-EF that,
according to the subsequent findings of the Constitutional Court of Perú, were
unconstitutional and inapplicable to the victims (supra paras. 45 and 48).
88.
In other words, the right to an adjustable pension that the alleged
victims acquired, according to the applicable Peruvian legislation, produced an
effect on the patrimony of such people, who received the corresponding amounts
every month. Such patrimony was directly affected by the illegal reduction,
according to the rulings of the Constitutional Court, in the amount received from
April 1993 to October 2002. Therefore, the alleged victims could not effectively
exercised their right to property over the patrimonial effects of their legally
recognized adjustable pension; those effects would refer to the amounts the
victims stopped receiving.
89.
Given that the State, up to the present, has still not complied with the
reimbursement to the victims of the pension amounts withheld from April 1993 to
October 2002, this continues adversely affecting their patrimony. The foregoing is
a direct consequence of the lack of full compliance with the rulings of the
judgments delivered by the Constitutional Court, which has led to the continuous
denial of the right that such judgments sought to protect (supra para. 77 and
79).
90.
In conclusion, the Court considers that from the extended and
unjustified nonobservance of the domestic judicial Orders derives the
deterioration of the right to property, enshrined in Article 21 of the Convention,
the violation of which should not have occurred if said rulings had been fully and
promptly complied with.
91.
Based on the foregoing, the Court repeats that the State violated the
right to judicial protection enshrined in Article 25(1) and 25(2) (c) of the
American Convention (supra para. 79) and it also violated the right to property
enshrined in Article 21(1) and 21(2) of said treaty, all of them in conjunction with
Article 1(1) therein, to the detriment of the two-hundred and seventy-three
people mentioned in paragraph 113 of this Judgment.
76
Cf. Case of the “Five Pensioners", supra note 61, paras. 115 and 121.
77
Articles 1 and 4 of Decree Law No.20530, System of Pensions and Compensations for Civil
Services provided to the State not covered by Decree Law No. 19990, (record of Appendixes to the
application, Appendix 3.1, Volume 6, page 1523).
78
Judgment of October 21, 1997 of the Constitutional Court of Perú, supra note 27 (page 1663,
ground Nº 4).