10
23.
In synthesis, the Court’s mission of imparting justice on matters of human rights is
accomplished by means of the law and not by promoting human rights, at least not exclusively and
directly, although that is ultimately and precisely one of its effects. Consequently, as a jurisdictional
body, the Court does not have the power to adjudicate outside of, or disregarding the provisions of
law, as stated in the Convention. By acting in accordance with what is envisaged in the Convention,
the Court, which is comprised of individuals who can make mistakes, ensures that the margin of
error is as small as possible and guarantees the impartiality of its judges, thereby conferring the
necessary and appropriate legal certainty upon its decisions.
24.
The idea underlying the points expressed in these lines is that the law is the means to
achieving justice and peace and that because International Human Rights Law forms part of Public
International Law, the interpretation and application of the former must be undertaken in conformity
with the latter.54
C. Regarding this dissenting opinion
25.
The case at hand refers, primarily or substantively, to the “violation of the right to effective
judicial protection” for non-compliance with a judicial ruling that ordered that the victim be reinstated
in a pension system implemented by the State. 55 Consequently, the dispute concerned the violation
of that right.
26.
However, in its Judgment the Court decided, among other things, that the State violated
Article 26 of the Convention given that it did not respect the victim’s right to social security and,
consequently, also violated his right to property, thereby adding new elements to the dispute. It
should be recalled that upon submitting the case to the Court, the Commission did not allege the
violation of Article 26 in relation to the right to social security; however, the petitioners did so. 56
27.
In that order of ideas, it is of the utmost importance to point out that this opinion does not
concern the existence of the right to social security, and less still, that of the right to property, or to
the other economic, social and cultural rights. It merely addresses the question of whether such
rights could be justiciable before the Court.
28.
Regarding the right to property, it is sufficient to note that the basis for its justiciability before
the Court lies not in the OAS Charter but in the Convention itself; 57 therefore, it is not necessary to
invoke Article 26 to justify that point.
54
Footnote 53.
Paragraph 1. “According to the Commission, the case concerns the alleged violation of the right to effective judicial
protection as a consequence of the State’s non-compliance, during 24 years, with a judgment issued in favor of Mr. Muelle
Flores, in the context of an application for amparo, which ordered his reinstatement in a pension scheme implemented under
Decree Law N° 20530. The Commission determined that the State of Peru was internationally responsible, first of all, because
its own authorities failed to execute a judicial ruling favorable to Mr. Muelle and, secondly, owing to the ineffectiveness of the
judicial mechanisms subsequently activated to achieve that compliance. The Commission also declared that the facts of the
instant case constituted a violation of the guarantee of reasonable time and the right to property, given that the equalized
pension to which Mr. Muelle Flores was entitled under the said Decree became part of his property, in accordance with the
favorable judicial decision, and yet he was unable to enjoy that right.”
55
56
57
Para.7.
Article 21:” Right to private property.1. Everyone has the right to the use and enjoyment of his property. The law