Court, and the 2003 judgment of this Court.30 It was only in response to the
objections formulated by two of the victims,31 that the said courts merely
indicated that two claims had been presented with different objects and purposes;
e)
Between April 2008 and November 2009 the Peruvian courts delivered
judgments with final rulings on the actions for declaration of nullity filed by the
SBS in 2005 (supra considering paragraph 23(c)), with regard to three of the
victims in this case (Sara Elena Castro Remy, widow of Gamarra, Reymert Bartra
Vásquez and Guillermo Alvarez Hernández).32 These judgments declared the
actions for declaration of nullity admissible and ordered the SBS “to proceed to
make a new and accurate alignment of the pensions [...] based on the official or
employee of the Ministry of Economy and Finance, subject to the public sector
regime […].” As a result of these final judgments, the way in which the pensions of
the victims are aligned has changed; they can no longer be aligned based on the
salary of an SBS official, subject to the private sector regime. The Peruvian courts
founded their decisions, inter alia, on the criteria adopted by the Constitutional
Court in a June 18, 2003, judgment in an action brought by another SBS
pensioner, who is not a victim in this case. According to these criteria, “the
alignment to which a pensioner with a pension subject to alignment has a right
must be calculated based on the public administration official or employee of the
same level and category occupied by the pensioner at the time of retirement.” In
this way, the said Chamber concluded that “the alignment ordered by the [1995]
SBS decisions was contrary to the law; consequently, the administrative
authorities should issue new decisions”;33 and
30
Cf. Decision of the Fourth Special Administrative Law Chamber of June 25, 2007, with regard to Javier
Mujica (file of monitoring compliance, tome IV, folios 811 to 819); decision of the First Administrative Law
Chamber of April 9, 2008, with regard to Sara Elena Castro Remy, widow of Gamarra (file of monitoring
compliance, tome IV, folios 1005 to 1016); decision of the First Administrative Law Chamber of December 18
2007, with regard to Guillermo Álvarez Hernández (file of monitoring compliance, tome IV, folios 1017 to
1027); decision of the Transitory Special Administrative Law Chamber of December 30, 2009, with regard to
Carlos Torres Benvenuto (file of monitoring compliance, tome V, folio 1480 to 1490), and judgment of the
Permanent Civil Chamber of the Supreme Court of Justice of August 14 2008, with regard to Reymert Bartra
(file of monitoring compliance, tome IV , folios. 997 to 1003). Sara Elena Castro Remy, widow of Gamarra, did
not appeal the first instance decision and, in second instance, the cases with regard to Javier Mujica and Carlos
Torres Benvenuto have not been decided.
31
Cf. First instance decision of the First Special Transitory Administrative Law Chamber of April 27,
2007, regarding Reymert Bartra. This Chamber decided that “[…] regarding the objection of res judicata, the
difference between the two judicial proceedings has been established, because the instant case questions the
undue alignment of the pension and the failure to protect a constitutionally protected right such as the
“pension” pursuant to the provisions of Decree Law 20530, which is substantially different from the ruling of
the Supreme Court of Justice. Also, regarding the Inter-American Court, the said judgment does not contain
any ruling concerning the alignment of pensions with salaries of a labor regime other than the public regime
[…]” (file of monitoring compliance with judgment, tome IV, folios 807, 994 and 995). See also, the second
instance decision of the Permanent Civil Chamber of the Supreme Court of Justice of the Republic of November
17, 2009, with regard to Guillermo Álvarez Hernández. This Chamber decided that “regarding the identical
nature of the case and purpose, it can be seen that this identical nature is absent, because, in the previous
judicial proceedings […] the now defendant filed an application for amparo requesting the reinstatement of the
retirement pension that he had ceased to receive and that had been granted by Administrative Decision No.
228-84 […], while in the actual proceedings, the annulment of SBS Decision No. 331-95 is requested […]; in
other words, we are faced with two distinct claims, because the first claim involved an application for amparo,
while the second proceedings involved the annulment of two different administrative decisions: namely, SBS
Decisions 331-95 and 252-2002. Hence, the difference between the petitions is evident and, consequently, the
interest in question” (file of monitoring compliance with judgment, tome V, folios 1342 and1343).
32
Cf. Decision of the First Special Transitory Administrative Law Chamber of April 9, 2008, in the case of
Sara Elena Castro Remy, widow of Gamarra, which became final as she did not file an appeal (file of monitoring
compliance with judgment, tome IV, folios 1005 to 1016); judgment of the Permanent Civil Chamber of the
Supreme Court of Justice of August 14, 2008, in the case of Reymert Bartra (file of monitoring compliance with
judgment, tome IV, folios 997 to 1003), and judgment of the Permanent Civil Chamber of the Supreme Court of
Justice of November 17, 2009 (file of monitoring compliance with judgment, tome V, folios 1336 to 1343).
33
Cf. Decision of the First Special Transitory Administrative Law Chamber of the Lima Superior Court of
Justice of April 9, 2008, in the case of Sara Elena Castro Remy, widow of Gamarra (file of monitoring
compliance with judgment, tome IV, folios 1005 to 1016). Also, Cf. Judgment of the Permanent Civil Chamber
10