10
Convention.
25.
The Court observed that, a total of 11 and 8 years, respectively, had passed since the
delivery of the first and last judgment of the Constitutional Court – and almost 15 years since
the judgment of the First Civil Chamber of the Superior Court of Lima – without these
judgments being executed. As a result of the ineffectiveness of these remedies, the right to
judicial protection of the presumed victims was, at least partially, illusory, which signified the
denial of the right concerned. In conclusion, the Inter-American Court considered that the
prolonged and unjustified failure to comply with the domestic judicial decisions resulted in the
violation of the right to property recognized in Article 21 of the American Convention, and that
this would not have occurred if the said judgments had been executed fully and promptly. 51
26.
Lastly, in 2015, in the Case of Duque v. Colombia, it was alleged that the victim was
excluded from the possibility of obtaining a survivor’s pension following the death of his
partner; this exclusion resulted from the fact that they were a same-sex couple. Although the
fundamental issue in this case was the pension, the Court also declared the violation of the
right to equality before the law and to non-discrimination – as established in Articles 1(1) and
24 of the American Convention. In this case, the Court concluded that the State had failed to
present an objective and reasonable justification for the existence of a restriction in access to
a survivor’s pension based on sexual orientation. Consequently, the Inter-American Court
found that the differentiation established in domestic law based on sexual orientation for
access to a survivor’s pension was discriminatory and violated the provisions of Article 24 of
the American Convention.52
27.
Accordingly, the Inter-American Court noted that when a domestic law was in force
that did not permit the payment of pensions to the survivor of a same-sex couple, there was
a difference in treatment that violated the right to equality and non-discrimination, so that it
constituted an internationally wrongful act. Added to this, the internationally wrongful act
affected Mr. Duque because this domestic law was applied in his case.53
2. The right to social security following the Case of Lagos del Campo: the Case of Muelle
Flores et al. v. Peru
28.
The Case of Lagos del Campo v. Peru marked a turning point in the case law of the
Inter-American Court as regards the direct justiciability of the economic, social, cultural and
environmental rights before the organs of protection of the inter-American system, by
victims in that case had acquired under domestic law. In its judgment, the Court found that, from the moment a
pensioner pays his contributions to a pension fund and ceases to work for the institution concerned in order to benefit
from the retirement regime established by law, he acquires the right that his pension will be governed by the terms
and conditions established in that law. Furthermore, the Court declared that the right to a pension acquired by the
individual produces “patrimonial effects,” and these are protected under Article 21 of the Convention. Consequently,
in that case, the Court found that, by arbitrarily changing the amount of the pensions that the presumed victims had
been receiving and by failing to comply with the judicial decisions handed down in relation to their applications for
protective measures, the State violated the right to property recognized in Article 21 of the Convention.” Case of
Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller’s Office”) v. Peru. Preliminary
objection, merits, reparations and costs. Judgment of July 1, 2009. Series C No. 198, para. 85.
Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the Comptroller’s Office”) v. Peru.
Preliminary objection, merits, reparations and costs. Judgment of July 1, 2009. Series C No. 198, para. 90.
51
Case of Duque v. Colombia. Preliminary objections, merits, reparations and costs. Judgment of February 26,
2016. Series C No. 310, para. 124.
52
Case of Duque v. Colombia. Preliminary objections, merits, reparations and costs. Judgment of February 26,
2016. Series C No. 310, para. 125.
53