Report No. 132 (2009) IACHR. Petition No. 644-05 (Brasil)

• Petition Number: 644-05
• Report Number: 132
• Year: 2009
• Case Type: Inadmissibility
• Respondent State: Brasil
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Mosap y otras

REPORT No. 132/09 PETITION 644-05 INADMISSIBILITY SOCIAL SECURITY CONTRIBUTIONS OF RETIRED AND PENSIONED CIVIL SERVANTS MOSAP ET AL. BRAZIL November 12, 2009 I. SUMMARY 1. On June 3, 2005, the Inter-American Commission on Human Rights (hereinafter the “Inter-American Commission” or “the IACHR”) received a petition alleging the international responsibility of the Federative Republic of Brazil (“the State” or “Brazil”) for eliminating the exemption for retired public employees and pensioners with respect to the contribution to social security, or social security tax (contribuição previdenciária), which occurred as of December 19, 2003, after the promulgation of Constitutional Amendment No. 41/03. It alleges that the State is responsible for violations of the right to property and the rights to judicial guarantees and judicial protection, to the detriment of certain Brazilian retirees and pensioners. 2. The petition was filed by the Movimento dos Servidores Públicos Aposentados e Pensionistas – Instituto MOSAP, made up of the Associação dos Auditores do Distrito Federal – AAFIT; Associação de Docentes Aposentados e Pensionistas de Docentes da Universidade Federal do Ceará – ADAUFC; Associação Nacional dos Delegados de Polícia Federal – ADPF; Associação dos Fiscais de Tributos Estaduais – AFISVEC; Associação de Docentes da Universidade Federal do Rio Grande do Sul – ADUFRGS; Associação dos Funcionários do Instituto de Pesquisas Econômicas Aplicadas – AFIPEA; Associação dos Juízes do Rio Grande do Sul – AJURIS; Associação Nacional dos Servidores da Previdência Social – ANASPS; Associação Nacional dos Auditores Fiscais da Previdência Social – ANFIP; Associação Nacional dos Procuradores Federais – ANPAF; Associação dos Aposentados da Fundação Universitária de Brasília – APOSFUB; Associação Nacional dos Procuradores da Previdência Social – ANPPREV; Associação Nacional dos Servidores Aposentados e Pensionistas do Tribunal de Contas da União – ASAP-TCU; Associação Nacional dos Fiscais Federais Agropecuários – ANFFA/ASFAGRO; Associação do Fisco de Alagoas – ASFAL; Associação dos Oficiais de Justiça do Estado de São Paulo – AOJESP; Associação dos Procuradores Federais do Estado do Rio de Janeiro – APAFERJ; Associação Paulista dos Fiscais de Contribuição Previdenciária Social – APAFISP; Associação dos Servidores Federais em Transportes – ASDNER; Associação dos Serventuários de Justiça dos Cartórios Oficializados do Estado de São Paulo – ASJCOESP; Associação dos Servidores Públicos do Paraná – ASPP; Associação dos Servidores Inativos e Pensionistas do Senado Federal – ASSISEFE; Federação Nacional das Associações dos Aposentados e Pensionistas das Instituições Federais de Ensino – FENAFE/ASPI-UFF; Federação Nacional dos Auditores Fiscais da Previdência Social – FENAFISP; Federação Brasileira de Associações de Fiscais de Tributos Estaduais – FEBRAFITE; Sindicato Nacional dos Auditores Fiscais do Trabalho – SINAIT; Sindicato dos Servidores do Poder Legislativo Federal e do Tribunal de Contas da União – SINDLEGIS; Sindicato Nacional dos Técnicos da Receita Federal – SINDIRECEITA; Sindicato dos Servidores do Departamento de Polícia Federal – SSDPF/RJ; União Nacional dos Analistas e Técnicos de Finanças e Controle – UNACON; and the União do Policial Rodoviário do Brasil – UPRB (hereinafter “the petitioners”). The petitioners are associations and unions that represent retired and pensioned civil servants and they have filed the petition on behalf of their members, who are the alleged victims. 3. The petitioners argue that the State has violated the fundamental rights of the alleged victims by promulgating Constitutional Amendment No. 41/03, due to the collection of the social security contribution from the retired public employees and pensioners, who prior to that amendment were exempt from the payment of that tax. Accordingly, they argue that the Brazilian State has violated the right to private property, political rights, the progressive development of economic and social rights, and judicial guarantees and protection, provided for, respectively by Articles 21, 23, 26, 8, and 25 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”). 4. The State, for its part, filed a timely objection of failure to state facts that tend to establish a violation, pursuant to Article 47.b of the American Convention. In this respect, the State notes that the mere fact that the judicial decision issued by the Federal Supreme Court (Supremo Tribunal Federal), has been contrary to the petitioners’ interests does not automatically mean that there has been a violation of the right to judicial protection. To the contrary, according to the State, that judgment was issued in keeping with the principles of defense and equality of arms, through a decision that was properly reasoned in detail, within a reasonable time. In addition, the State argues that Constitutional Amendment No. 41/03 was motivated by the social security deficit and the increase in life expectancy for Brazilian citizens, as well as the need to maintain the financial balance of the State and to ensure the right of all citizens to receive a pension, therefore, it was a just and reasonable measure proportional to the suitable end indicated supra. 5. In this report, the Inter-American Commission analyzes the available information and the parties’ positions in light of the provisions of the American Convention and concludes that the petition does not state facts that tend to establish a violation of the rights guaranteed by the American Convention. Therefore, pursuant to Article 47.b of the American Convention, the IACHR decides that this petition is inadmissible. The Inter-American Commission also decides to publish this report and include it in its Annual Report to the General Assembly of the Organization of American States (OAS). II. PROCESSING BY THE COMMISSION 6. The complaint was received on June 3, 2005. On November 15, 2006, the Inter-American Commission informed the petitioners and the State that this petition had been joined to petitions P-989-04 (Sindicato dos Médicos do Distrito Federal), P-1133-04 (Sindicato Nacional dos Auditores Fiscais da Receita Federal), and P-115-05 (Waldomiro Augusto de Almeida et al.), in keeping with Article 29.1.d of the Inter-American Commission’s Rules of Procedure considering that they address similar facts. In addition, the IACHR asked the petitioners whether they had designated a common representative before the Inter-American Commission. On that date, the IACHR transmitted the pertinent parts of the joined petitions to the State and set a term of two months for it to submit observations. On February 22 and 23, 2007, the State submitted its response with respect to the joined petitions. 7. In addition, the IACHR received communications from the petitioners with respect to the joinder of the petitions and the impossibility of designating a common representative on December 28, 2006 and February 10, 2007. 8. On September 10, 2008, the IACHR informed the petitioners and the State that it decided to divide petitions P-644-05, P-989-04, and P-1133-04, as provided for in Article 29.1.c of the Commission’s Rules of Procedure, to facilitate the processing of the matters for the parties. Accordingly, this report corresponds only to petition P-644-05. 9. On August 28, 2008, the petitioners requested a working meeting during the 133rd Regular Period of Sessions of the IACHR. On September 17, 2008, the IACHR notified the petitioners that it was not possible to grant them the working meeting requested. 10. The IACHR received additional information from the petitioners on the following dates: September 15, 2005, August 24, 2006, October 20, 2006, February 10, 2007, July 11, 2007, August 16, 2007, September 5, 2007, December 27, 2007, March 3, 2008, July 15, 2008, September 10, 2008, October 24, 2008, March 23, 2009, August 10, 2009, and November 10, 2009. Those communications were duly forwarded to the State. 11. The IACHR received additional observations from the State on the following dates: June 4, 2007, June 11, 2007, July 12, 2007, April 18, 2008, July 2, 2008, June 17, 2009, and July 16, 2009. Those communications were duly forwarded to the petitioners. III. THE PARTIES’ POSITIONS A. The petitioners 12. The petitioners allege that the State violated the Brazilian Constitution and human rights conventions and treaties by promulgating Constitutional Amendment No. 41/03, by virtue of the collection of the social security contribution from retired public employees and pensioners, who prior to that amendment were exempt from the payment of that tax. Accordingly, the petitioners argue that the State violated “res judicata, the perfect legal act, the acquired right, and juridical security,” as well as the following human rights of the alleged victims: the right to private property, the progressive development of social rights, the right to judicial guarantees, and the right to judicial protection, provided for, respectively, at Articles 21, 26, 8, and 25 of the American Convention. 13. According to the petitioners, in addition, that contribution is confiscatory in nature, as it imposes excessive taxes on the alleged victims. The petitioners emphasize that the collection of the contribution to social security from the retirees and pensioners is unjust and does not answer to the correct definition of solidarity, insofar as it seeks to correct institutional vices of the Brazilian social security system to the detriment of a specific group of society: retired public employees and pensioners. In this respect, the petitioners add that said justification for Constitutional Amendment No. 41/03 is false, first because the amount obtained after the...