SBS adopted decisions in order to comply with the provisions of these judgments
of the Social and Constitutional Law Chamber of the Supreme Court of Justice;24
b)
In 1998 and in 2000, Peru’s Constitutional Court delivered judgments
regarding the compliance actions filed by the victims demanding the execution of
the 1995 decisions of the SBS ordering the reimbursement and alignment of their
pensions as previously ordered by the Chamber of Constitutional and Social Law of
the Supreme Court of Justice.25 A compliance action “seeks to give effect to the
provisions of a law or an administrative act with which an officer or authority is
unwilling to comply.”26 Thus, the Constitutional Court merely ordered compliance
with the 1995 administrative decisions of the SBS in favor of the pensioners, to
the extent that “their nullity had not been decided judicially.” The SBS adopted the
provisions of those judgments, as well as other judicial admonitions, in 2002
decisions;27
c)
In June 2005, two years and four months after the Inter-American Court
had delivered its judgment in this case, the SBS filed actions for declaration of
nullity before the Special Administrative Law Chamber of the Superior Court of
Justice against its own 1995 and 2002 decisions, issued in implementation of the
above-mentioned judgments of the Constitutional and Social Law Chamber of the
Supreme Court of Justice and the Constitutional Court, respectively.28 In the
context of these administrative proceedings, the courts handed down rulings with
regard to four of the victims, granting the precautionary measure requested by
the SBS, ordering that, each month, the said entity deposit in the Banco de la
Nación, the increase for alignment ordered in the contested decisions. In the case
of the victim Carlos Torres Benvenuto, the precautionary measure requested by
the SBS was denied because a judgment of the Transitory Civil Chamber of the
Supreme Court of Justice declared it inadmissible;29
d)
Regarding the said actions for declaration of nullity filed by the SBS, the
victims filed the objection of res judicata. The Special Administrative Law Chamber
and, subsequently, the Permanent Civil Chamber of the Supreme Court,
considered that this objection could not be invoked against the 1994 judgments of
the Supreme Court of Justice, the 1998 and 2000 judgments of the Constitutional
decision of the First Civil Chamber of the Lima Superior Court of Justice of December 30, 1993, in the case of
Maximiliano Gamarra Ferreyra (file of attachments to the application, attachment 47, folios 185 a 186).
24
Cf. Case of Five Pensioners v. Peru. Merits, reparations and costs, supra note 20, para. 88(k).
25
Cf. Case of Five Pensioners v. Peru. Merits, reparations and costs, supra note 20, para. 88(l).
26
Cf. Laws Nos. 23506 and 25398 and article 200(6) of the Constitution, cited in the judgments of the
Constitutional Court of Peru of August 3, 2000, in relation to the compliance actions filed by Carlos Torres
Benvenuto, Javier Mujica Ruiz Huidobro and Guillermo Álvarez Hernández (file of attachments to the
application, attachments 54, 55 and 58, folios 202 to 208 and 214 to 215).
27
Cf. Case of Five Pensioners v. Peru. Merits, reparations and costs, supra note 20, para. 88(n).
28
The main objective of the SBS was to quash the administrative acts of 1995 and 2002. The former
aligned the retirement pension of the victims based on the salary paid to employees of the Superintendence of
Banking and Insurance who were subject to the private sector regime. The latter ordered compliance with the
1995 decisions. An additional objective was for each pensioner to return the sums of money paid in excess,
owing to the “undue increase.” Cf. File of attachments to the representative’s brief of July 15, 2005 (Reymert
Bartra, folios 75 to 104; Carlos Torres Benvenuto, folios 105 to 134; Guillermo Álvarez Hernández folios 135 to
163, and Javier Mujica Ruiz Huidobro, folios 164 to 194). Also, with regard to Sara Elena Castro Remy, widow of
Gamarra, file of monitoring compliance with judgment, folios 1005 and 1006.
29
The Transitory Civil Chamber of the Supreme Court of Justice of the Republic decided this the basis
that “it appears, prima facie, that the administrative decisions, whose suspension is requested, as a
precautionary measure, are not the result of actions that correspond to the Superintendence of Banking and
Insurance, but administrative decisions to comply with a court order that has become res judicata and, based
on a constitutional principle, is immutable […]” (file of monitoring compliance with judgment, tome IV, folio
836).
9