with, would give rise to the administrative, civil and criminal responsibilities established
by law.”15 This shows clearly that, even prior to the delivery of the judgment, the State
was aware of its obligation to determine possible administrative and civil responsibilities.
18.
Consequently, the Court reiterates the provisions of its order on monitoring
compliance of November 24, 2009, that the thorough investigation of the facts of the
case in order to determine the eventual responsibilities involves the investigation and
determination of responsibility in jurisdictions other than the criminal justice system, as
provided for by domestic law.
19.
Regarding the State’s argument concerning the prescription of disciplinary actions,
the Court stresses that Peru appears to be invoking this principle owing to its own lack of
action. In light of the above, it is essential that the State inform the Court about the
measures it took, once it had been notified of the judgment in this case or even before
this, in order to advance, on its own initiative, the disciplinary actions established in
paragraph 7 of article 239 of Law No. 27444 on General Administrative Procedure, or
other actions and responsibilities that are applicable to this case.
b)
Regarding the obligation to establish the possible patrimonial
consequences of the violation of the right to property, in the terms of
domestic law, by the competent domestic bodies (fifth operative
paragraph of the judgment)
20.
The State indicated that “the Court has not explained clearly how the obligation
contained in [the said] operative paragraph should be understood.” In this regard, the
State reiterated its arguments in the form of the following three questions: (i) “What
patrimonial consequences does [the obligation ordered by the Court] refer to?” (ii) “What
are the terms of domestic law in the matter?” and (iii) “What competent bodies should
decide such patrimonial consequences?” These arguments are summarized below:
i)
Peru affirmed that “the patrimonial consequences could only relate to […]
two elements: (1) to the amount of the pension itself, which has been the object
of permanent controversy […], or (2) to the loss of earnings owing to the possible
failure to pay the pensions promptly or completely, whatever the amount.”
Regarding the amount of the pensions, the State indicated that, although the five
pensioners had tried to include, as part of the dispute, the definition of whether
their pensions should be aligned with the salaries of the public or the private
sector, in the State’s opinion, the Court “prudently refrained from ruling on the
matter, aware of the complexity of interpreting the law […] and of the major
repercussions that this could have, not only […] in relation to the five specific
pensioners, but for all Peruvian pensioners.” The State added that the judgments
of the Supreme Court of Justice and of the Constitutional Court in connection with
this case “result from applications for protective measures in which the issue in
dispute was the capping of pension benefits, and that these judgments ordered
the reinstatement of the pensions they had been receiving, but never ruled on
how to proceed as regards the alignment of the pensions.” In addition, Peru
indicated that “if the patrimonial consequences of non-compliance were to be
understood as damages […],” the compensation for the said concept “formed an
integral part of the petition [in the case] before the Commission”; yet, this “claim
was not admitted by the Court.” In addition, the State indicated that the Court
had declared that the judgment constituted per se a form of reparation and that,
in the seventh operative paragraph of the judgment it had ordered the payment of
an amount for compensation of non-pecuniary damage. Furthermore, the State
indicated that “analyzing the norms on extra-contractual responsibility and valid
15
Decisions of the Superintendence of Banks and Insurance of March 12, 2002 (file of attachments to the
pleadings and motions brief, attachments 1 to 5, folios 3 to 18).
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