45
which entity should pay the pensions of those who ceased to work and this
[was done] taking into account that the Superintendency of Banks and
Insurance had a private sector labor regime and its employees and officials
were not covered by the pension regime of Law 20530[,] as the pensioners
were, because they had worked under this regime and contributed to the
corresponding pension fund.” Likewise, it is not true, as the Commission has
affirmed in the application, that Decree Law No. 25792 was promulgated in
reaction to the applications for amparo because, before these actions were
filed, other norms, similar to Decree Law No. 25792, had been drafted, in
order to correct the distortions that had arisen in the Peruvian pension
system;
e)
“From one perspective, the fact that there has been a reduction in the
pensions of the five pensioners [could] be considered a situation contrary to
pension logic. However, it should be emphasized that such acts occurred by
applying legal norms that, at one time, were even considered constitutional –
although, subsequently, this opinion may have changed”;
f)
“The mere violation of a legal norm should not necessarily be qualified
as a human rights violation”; “to qualify as a violation of human rights, an
act must have been committed intentionally and with evident animus nocendi.
These requirements were not present in this case, because the existence of
caps, on both salaries and pensions, was considered valid according to the
Constitution.” Added to this, “an evident state of necessity should be taken
into account to explain certain situations that could have led to taking one of
the measures subject to court proceedings (imposing caps on pensions or
salaries)[,] such as a budget crisis which was impossible to manage in any
other way[; …] all legislation has protection mechanisms for dealing with
critical situations such as force majeure, act of God, harm, and the excessive
burden signified by implementation [which] allow compliance with obligations
to be modified in exceptional situations”;
g)
“The right to property is not in discussion in a case such as this, and it
should be borne in mind that such a right may be subordinated to the law in
the interest of society.” The reduction in the amount of the pension “was due
to the provisions of the 1991 Budget Act, extended to 1992, which the
alleged victims have not mentioned.” When that act was promulgated, the
Constitutional Guarantees Court was consulted, and it declared that the caps
were constitutionally valid. At that time, the 1979 Constitution was in force,
according to which, pensions “are periodically adjusted, taking into
consideration the cost of living and the possibility of the national economy, in
accordance with the law”;
h)
“Domestic remedies have not been duly exhausted”, because none of
the five pensioners, or any other State authority has questioned the effects,
constitutionality or application of Decree Law No. 25792, “a legal norm with
which the State is accused of failing to comply”;
i)
Since no complaint has been filed against the act of paying pensions
carried out by the MEF, in application of Decree Law No. 25792, “those acts
are final. The best evidence of this is that the corresponding pension was
assumed by this Ministry until the legal provision had been annulled, when
responsibility for payment was transferred once again to the Superintendency
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents