REPORT
Nº 89/99
I.
SUMMARY
1.
In a petition submitted to the Inter-American Commission on Human
Rights (hereinafter “the Commission” or “IACHR”), on February 1,
1998, and amplified on May 25 of that same year, the non-governmental
organizations Programa de Derechos
Humanos del Centro de Asistencia Laboral del Perú (CEDAL) and the Asociación
Pro Derechos Humanos “APRODEH” (hereinafter “the
petitioners”) denounced that the Republic of Peru (hereinafter
“Peru”, “the State” or “the Peruvian State”) violated the
rights to property, to equal protection, and to judicial protection
established in Articles 21, 24 and 25 of the American Convention on
Human Rights (hereinafter the “Convention” or the “American
Convention”) of Carlos Torres Benvenuto, Javier Mujica Ruiz-Huidobro,
Guillermo Alvarez Fernández, Reymer Bartra Vásquez and Maximiliano
Gamarra Ferreyra, when it failed to comply with judgements of the
Supreme Court of Justice of the Republic of Peru.
The State alleged that the case is inadmissible because the
remedies under domestic law have not been exhausted and because the
period for submitting the claim has expired.
The Commission considers that, in the instant case, remedies
under domestic law have been exhausted and the period for submitting the
claim has not run out. The
IACHR decides to admit the case, to proceed with the analysis of the
merits of the case, and to make itself available to the parties to a
friendly settlement based on the respect for human rights established in
the Convention.
II.
PROCESSING BY THE COMMISSION
2.
On July 16, 1998, the Commission opened the case, forwarded the
relevant parts of the complaint to the Peruvian State and requested that
information should be presented within 90 days.
Peru responded on October 14, 1998.
The petitioners presented their observations on the State’s
response on December 4, 1998. The
State presented final comments on May 17, 1999.
On July 12, 1999, the petitioners presented an additional
document.
III.
POSITION OF THE PARTIES
A.
Position of the petitioners
3.
The petitioners declare that, during their active working life,
Carlos Torres Benvenuto, Maximiliano Gamarra Ferreyra (who died about
two and a half years ago), Javier Mujica Ruiz-Huidobro, Guillermo
Alvarez Fernández and Reymer Bartra Vásquez were employed as officials
of the Superintendencia de Banca y Seguros (hereinafter “SBS”). The
latter is a State agency, with operational, administrative and economic
autonomy, responsible for overseeing the banking and insurance sector.
As of 1943, the SBS has had its own Pension Fund.
4.
They state that the SBS was obliged to recognize that Torres
Benvenuto, Gamarra Ferreyra, Mujica Ruiz-Huidobro, Alvarez Fernández
and Bartra Vásquez were entitled to and were beneficiaries of the
rights established in the pension and compensation regime for civilian
government officials regulated by Decree Law Nº 20530, as they were
public officials who had satisfied the relevant legal requirements.
5.
They indicate that, having reached retirement age and complied
with the relevant legal requirements, Torres Benvenuto, Gamarra Ferreyra,
Mujica Ruiz-Huidobro, Alvarez Fernández and Bartra Vásquez ceased
working for this agency and the SBS acknowledged their right, acquired
under domestic law, to a severance pension which would be indexed to the
salary of the SBS employee who occupied the same or a similar position
as the one held by the above mentioned men until the date of their
retirement.
6.
They state that, as of September 1992, and although Torres
Benvenuto, Gamarra Ferreyra, Mujica Ruiz-Huidobro, Alvarez Fernández
and Bartra Vásquez had already been enjoying the right to an indexed
pension, the SBS arbitrarily reduced the amounts of the pensions that it
was paying them to one-fifth or one-sixth of their nominal value,
depending on the person. For
example, the petitioners indicate that the monthly pension of one of
them was reduced from S/.2,258.67
(two thousand two hundred and fifty-eight soles
and sixty-seven cents) to S/.504.00 (five hundred and four soles).
7.
They indicate that as of October 1992, Torres Benvenuto, Gamarra
Ferreyra, Mujica Ruiz-Huidobro, Alvarez Fernández and Bartra Vásquez
exercised the constitutional remedy of amparo
to contest the violation to which they had been subject. As a result
of exercising this remedy, as of May 1994, the Constitutional and Social
Chamber of the Supreme Court of Justice of the Republic of Peru
pronounced various judgements which declared with merit the claims
presented by the petitioners and ordered the SBS to restore to the
claimants the right to enjoy their pension, indexed to the salaries of
those employed in similar positions in the SBS.
The petitioners provided the IACHR with copies of these
judgements.
8.
They allege that, although these judgements of the Supreme Court
of Justice of the Republic of Peru can be considered res
judicata since they were issued in 1994, it has been impossible to
execute any of them, although attempts have been made during the last
four years using all possible means, including the criminal citation of
the State agents who acted as aggressors or resisted court orders to
restore the violated rights.
9.
They sustain that the non-compliance with the above mentioned
judgements constitutes a violation by the Peruvian State of the rights
to property, to equal protection and to judicial protection established
in Articles 21, 24 and 25 of the American Convention on Human Rights of
Torres Benvenuto, Mujica Ruiz-Huidobro, Alvarez Fernández, Bartra Vásquez
and Gamarra Ferreyra.
B.
Position of the State
10.
The State alleges that, in 1994, in execution of the judgements
pronounced by the Supreme Court of Justice of Peru in favor of Torres
Benvenuto, Gamarra Ferreyra, Mujica Ruiz-Huidobro, Alvarez Fernández
and Bartra Vásquez, the SBS restored them with the difference in the
amount of their pensions corresponding to the months of September and
October 1992.
11.
It alleges that on October 23, 1992, in application of the
Peruvian Government’s new economic policy guidelines, there was an
“adjustment of the pension amounts, including those related to the
regime of Decree Law Nº 20530. In
this respect, Decree Law Nº 25792 was issued, and its Article 5
established that the Ministry of Economy and Finance assumed the payment
of the pensions of those who no longer worked for or had retired from
the SBS and who were covered by the regime of Decree Law Nº 20530.”
Said article also established that the Ministry would pay these
pensions based on the pensions paid by the Ministry to its workers and
officials, and that in “no case will they be brought into line with or
relate to the salaries paid by the Superintendency of Banking and
Insurance to personnel governed by a private sector system”.
12.
It indicated that, as a consequence of Decree Law Nº 25792, as
of October 1992, the SBS was no longer obliged to comply with the
previously mentioned judgements of the Supreme Court of Justice.
13.
It asserts that the petitioners have not disputed the validity of
the above mentioned Decree Law Nº 25792 in court and, therefore, that
the present complaint should not be admited, since remedies under
domestic law have not been exhausted.
14.
It alleges that the present complaint is inadmissible as it was
lodged after the expiration of the six-month period stipulated in
Articles 46(1)(b) and 38 of the American Convention and of the
Regulations of the IACHR, respectively.
The State maintains that this period has expired, because ever
since 1994 the SBS restored to Torres Benvenuto, Gamarra Ferreyra,
Mujica Ruiz-Huidobro, Alvarez Fernández and Bartra Vásquez the
difference in the amount of their pensions corresponding to the months
of September and October 1992. Within
the same argument on expiration, the State maintains that on December
13, 1995, November 12, 1996 and December 12, 1996, judgements were
pronounced declaring without merit the request that the officials of the
SBS should be criminally indicted for non-compliance with or disregard
of the judgements of the Supreme Court of Justice in favor of the
alleged victims. It adds
that the period had also expired with regard to a decision of the
Attorney General’s Office which resolved that there were no grounds
for filing a criminal complaint regarding the above mentioned facts.
IV.
ANALYSIS
15.
The Commission will now proceed to analyze the admissibility
requirements for a petition under the American Convention.
A.
The ratione materiae, ratione personae and ratione temporis competence of the Commission
16.
With regard to ratione
materiae competence, the Commission observes that from the facts
narrated by the petitioners and not disputed by the State, it can be
concluded that final judgements of the Supreme Court of Justice of Peru
exist ordering the SBS to restore to Torres Benvenuto, Gamarra Ferreyra,
Mujica Ruiz-Huidobro, Alvarez Fernández and Bartra Vásquez the right
to receive their pensions indexed to the salaries of those carrying out
similar activities in the SBS.
17.
Since Article 25 of the Convention specifically establishes that
States parties agree to ensure that the competent authorities shall
enforce any remedy when granted by a simple and prompt recourse, or any
other effective recourse that protects the individual against acts that
violate his fundamental rights, the Commission has competence to decide
whether the alleged non-compliance with what had been ordered in the
judgements of the Constitutional and Social Chamber of the Supreme Court
of Justice of Peru, as a result of the amparo
action filed by Torres Benvenuto, Gamarra Ferreyra, Mujica Ruiz-Huidobro,
Alvarez Fernández and Bartra Vásquez, constitutes a violation of
Article 25 of the Convention by the Peruvian State.
18.
With regard to ratione
personae competence, the Commission observes that the petitioners
charge the Peruvian State with violating human rights established in the
American Convention. Since
Peru ratified this Convention on July 28, 1978, the Commission has ratione
personae competence to hear this petition under the express
provision of the Convention. With
regard to the petitioners, the Commission observes that they are
non-governmental organizations that are legally recognized in Peru and
according to Article 44 of the Convention, they are entitled to lodge
petitions with the Commission. Consequently, and with respect to the
petitioners, the Commission has ratione
personae competence to hear this petition. In relation to the
presumed victims, these are persons with regards to which Peru has
agreed to respect and guarantee the rights established under the
Convention. Therefore, regarding this aspect the Commission also has
competence to hear this petition.
19.
As for ratione temporis competence, the Commission observes that the facts
of which the Peruvian State is accused occurred in 1992 and thereafter.
That is, after Peru had ratified the American Convention in 1978.
Consequently, the Commission concludes that it has ratione temporis competence to hear this case.
B.
Requirements for the admissibility of the petition
a.
Exhaustion of remedies under domestic law
20.
The State alleges that remedies under domestic law have not been
exhausted as the petitioners have not disputed in court the validity of
the above mentioned Decree Law Nº 25792, under which the State itself
transferred to the Ministry of Economy and Finances the obligation to
pay the pensions of those who no longer worked for or had retired from
the SBS.
21.
In this respect, the Commission observes that the matter
presented is whether or not the Peruvian State has complied with the
judgments pronounced by the Supreme Court of Justice of Peru in the amparo
action filed against the decisions of the SBS to reduce the amounts of
the pensions that they had been paying to Torres Benvenuto, Gamarra
Ferreyra, Mujica Ruiz-Huidobro, Alvarez Fernández and Bartra Vásquez.
Accordingly, the Commission considers that, with the filing of
these amparo actions and the
subsequent judgments of the Supreme Court of Justice of Peru, the
remedies under domestic law have been exhausted, and therefore the
requirement established in Article 46(1) of the American Convention has
been fulfilled.
b.
Period for submission
22.
With regard to the requirement stated in Article 46(1)(b) of the
Convention, according to which the petition should be lodged within a
period of six months from the date on which the victim was notified of
the final judgment that exhausted domestic remedies, the Commission
ratifies its doctrine, according to which:
non-compliance
with an unappealable judgment constitutes a continued violation by
States that persists as a permanent infraction of Article 25 of the
Convention, which establishes the right to effective judicial
protection. Therefore, in
such cases, the requirement concerning the period for submission of
petitions stipulated in Article 46(1)(b) of the American Convention is
not effective..[1]
23. In
accordance with the above, the requirement regarding the period for
submission of petitions established in Article 46(1)(b) of the American
Convention is not applicable in this case, where the issue submitted to
the IACHR is the alleged continued non-compliance with the judgements of
the Supreme Court of Justice of Peru in the amparo
actions filed against the decision of the SBS to reduce the amounts of
the pensions that it was paying to Torres Benvenuto, Gamarra Ferreyra,
Mujica Ruiz-Huidobro, Alvarez Fernández and Bartra Vásquez.
24. With
regard to the expiration alleged by the State because the complaint was
submitted after the six-month
period had elapsed, calculated from December 13, 1995, November 12,
1996, and December 12, 1996--dates of issuance of the judicial decisions
which declared without merit the request that the officials of the SBS
should be criminally indicted for non-compliance with or disregard of
the judgements of the Supreme Court of Justice in favor of the alleged
victims--and because the period related to the resolution of the
Attorney General’s Office that resolved that there were no grounds for
filing a criminal action with regard to the above mentioned facts had
also expired, the Commission considers that this argument has no merit,
because the matter submitted concerns the alleged continued
non-compliance with the judgements of the Supreme Court of Justice of
Peru in the amparo actions
filed against the decisions of the SBS to reduce the amounts of the
pensions that it had been paying to Torres Benvenuto, Gamarra Ferreyra,
Mujica Ruiz-Huidobro, Alvarez Fernández and Bartra Vásquez.
Accordingly, the IACHR confirms that in the present case the
requirement concerning the period for submission of petitions
established in Article 46(1)(b) of the American Convention is not
applicable.
c.
Duplication of proceedings and res judicata
25. The
Commission understands that the subject of the petition is not pending
in another international proceeding for settlement, nor is it
substantially the same as one already studied by the Commission or by
another international organization.
Consequently, the requirements established in Articles 46(1)(c)
and 47(d) are also satisfied.
d.
Characterization of the alleged facts
26. The
Commission considers that the petitioners’ complaint refers to facts
that, if they are true, may constitute a violation of the rights
guaranteed by the Convention since, as established above, the issue
submitted to the Commission is whether or not the alleged non-compliance
with a judgement of the Supreme Court of Peru involves a violation of
the American Convention by the Peruvian State.[2]
V.
CONCLUSIONS
27. The
Commission considers that it has competence to hear this case and that,
in accordance with Articles 46 and 47 of the American Convention, the
case is admissible as it was described above.
28. Based
on the de facto and de
jure arguments aforementioned, and without prejudging the merits of
the case,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
1.
To declare the present case admissible.
2.
To notify this decision to the petitioners and to the State.
3.
To continue to analyze the merits of the case.
4.
To make itself available to the parties in order to reach a
friendly settlement based on the respect for the rights established in
the American Convention and to invite the parties to advise it about
this possibility.
5.
To publish this decision and include it in the Annual Report to
the General Assembly of the OAS.
Done
and signed in the city of Washington, D.C., on the 27th day
of the month of September, 1999. (Signed): Robert K. Goldman, Chairman;
Hélio Bicudo, First Vice-Chairman; Claudio Grossman, Second
Vice-Chairman; Commissioners: Alvaro Tirado Mejía, Carlos Ayala Corao
and Jean Joseph Exumé. [1]
IACHR, Cabrejos Bernuy case, Report Nº 75/99, Case 11.800 (Peru),
published in the 1999 Annual Report of the IACHR, para. 22. [2]
With regard to the allegedly reiterated nature of this
non-compliance and to the judicial remedies unsuccessfully
exercised, cf., for comparative purposes, IACHR, General Gallardo
case, Report Nº 43/96, Case 11.430 (Mexico), published in the
1996 Annual Report of the IACHR, p. 485-513.
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