22
the proceeding must tend toward the materialization of the protection of the right
recognized in the judicial ruling through the suitable application of that ruling.68
76.
Taking all this into account, the Court accepts the State’s acknowledgment of
responsibility in the sense that there was no judicial protection from the retroactive
application of law, in a failure to honor domestic law. This implies that the ruling of the
Chamber of Constitutional and Social Law of the Supreme Court had the effect of making
the judicial remedy sought by the victims ineffective for protecting the aforementioned
domestic law guarantees. As a consequence, the Court finds that the State violated the
right to judicial protection recognized in Article 25(1), with regard to Article 1(1) of the
American Convention, to the detriment of the 233 individuals indicated in the annex to
this Judgment.
3.
77.
Alleged violation of the right to property
The Commission did not allege a violation of the right to property.
78.
The representative alleged that, based on the decrees issued by the Executive
Branch, SEDAPAL took measures that “had consequences for the remunerations received
by the victims.” Likewise, the representative alleged that the effect produced implies a
“removal and/or appropriation of those goods being used and enjoyed” by the victims
“without payment of a just compensation.” In addition, he indicated that the State could
have “suspended or eliminated the [s]alary [s]cale [a]djustment [s]ystem” after the
date of publication of Law Decree No. 25876, “but not retroactively.” Therefore, he
indicated that “the retroactive application of the aforementioned Law Decree [...]
presupposes an excess of State power [...] to subordinate the specific interest of [the
victims] in accessing enjoyment of the [s]alary [s]cale [s]ystem as contrasted to the
general interest [... in the framework of] an economic [c]risis and that specified
[n]ational r[]eactivation measures, as the suspension of the [a]djustment [s]ystem as of
the date of the law’s existence. that is, as of its publication, was a more than sufficient
measure for the goals indicated.”
79.
For its part, the State argued that “the right to property is not absolute and
allows for certain limitations on use and enjoyment for the public interest.” It added that
the decrees “were issued in a specific economic-labor context [...] in which the public
interest took precedence, and it was necessary to consolidate the Program of Structural
Reforms to the national economy; it was not, as the applicants try to argue, an arbitrary
act of the State to their detriment.” The State explained that “the decisions made
[during the nineties] to control hyperinflation were based on the serious economic crisis
that led to the suspension of salary regulations - whether contained or not in collective
bargaining agreements - as long as they were linked to changes in price indexes, as they
were elements that created higher inflation. Although it was a drastic decision, it was a
measure that was used to guarantee the stability of the economy in general and in no
way did it violate the right to property, as it played the social role of preserving Peruvian
society in general.”
80.
In this case, the Commission, the representative and the State agree that
elimination of the salary scale system was proper (supra para. 62). The Court observes
that the decrees issued between the years 1991 and 1992 related to the facts of this
case took place within the economic context of Peru in July of 1990. Effectively, the
State was “in a process of hyperinflation that had already lasted 24 months,” which
produced “a drastic drop in real remunerations.”69 To this was added, among other
68
Cf. Case of Baena Ricardo et al V. Panamá. Competencia. Judgment of November 28, 2003. Serie C
No. 104, para. 73; Case of Acevedo Jaramillo et al, supra note 14, para. 217, and Case of Acevedo Buendía et
al (“Discharged and Retired Employees of the Office of the Comptroller”), supra note 68, para. 69.