Report No. 30 (2021) IACHR. Petition No. 2016-13 (Colombia)

• Year: 2021
• Case Type: Inadmissibility
• Respondent State: Colombia
• Court: Inter-American Comission of Human Rights

REPORT No. 30/21

PETITION 2016-13

REPORT ON INADMISSIBILITY

FERNANDO VASQUEZ BOTERO AND OTHERS

COLOMBIA

OEA/Ser.L/V/II

Doc. 34

1 March 2021

Original: Spanish

Approved electronically by the Commission on March 1, 2021.

Cite as: IACHR, Report No. 30/21, Petition 2016-13. I.. Fernando Vasquez Botero and others. Colombia. March 1, 2021.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Eduardo Lopez Villegas
:	Fernando Vasquez Botero and twenty-three other people1
Respondent S.:	Colombia
Rights invoked:	Articles 8 (fair trial), 21 (property), 25 (judicial protection) and 26 (progressive development of economic, social and cultural rights) of the American Convention on Human Rights2 in relation to Articles 1.1 (obligation to respect rights) and 2 (domestic legal effects) thereof

II. PROCEEDINGS BEFORE THE IACHR3

Filing of the petition:	December 10, 2013
N. of the petition to the S.:	May 26, 2016
S.’s first response:	November 14, 2017
Additional observations from the petitioner:	J. 24, 2018
Additional observations from the S.:	October 29, 2018

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y., American Convention (instrument of ratification deposited on J. 31, 1973)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:	No
Rights declared admissible	None
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., the exception of Article 46.2.a) of the American Convention is applicable
Timeliness of the petition:	Y., in the terms of Section VI

V. ALLEGED FACTS

1. The petitioner requests the IACHR to declare Colombia internationally responsible for the violation of the human rights of the twenty-four alleged victims, by virtue of the adoption of a constitutionality judgment by the Constitutional C. which, having imposed a maximum level for the highest pensions of the public sector, allegedly entailed a subsequent reduction o “recalculation” of the amounts of their own monthly pensions.

2. The twenty-four alleged victims held some of the highest offices in the different branches of public power of Colombia,4 and after finalizing their service, they obtained the recognition of their respective retirement pensions, under the special legal and regulatory pension regimes corresponding to the particular situation of each one of them, mainly the regimes established in L. 4 of 1992 and Decree 546 of 1971. In all cases, the amount of the monthly pensions was calculated based on the level of salaries of their last period of public service, and it was high enough for them to be ranked at the highest level of public pensions in Colombia. As they state in the petition, they obtained “the right to a pension according to the usual international standards, which grant them monthly payments objectively proportional to, and calculated in accordance with, the high S. dignity with which they were bestowed”. The petitioner explains that based on that high value of their monthly pensions, the alleged victims have accessed a “standard of living, which has resulted for nearly all of them, in their being the main support of their extended families, the providers of their children, daughters-in-law and grandchildren, or in the support for the educational tuition of their close relatives.”

3. It is claimed that such standard of living was, however, “severely altered” due to the adoption of judgment C-258 of 2013 by the Constitutional C., in which, after ruling on a constitutional complaint filed against L. 4 of 1992 and its regulatory norms, a maximum limit was established for the pension allowances of the public sector, which was significantly lower than that which the twenty-four persons listed by the petitioner had been receiving. Against this constitutional judgment, the petitioners raise numerous allegations, namely:

(i) The Constitutional C. acted without competence because in constitutionality control matters its jurisdiction is of a general and abstract nature, and it cannot rule on concrete cases. However, in judgment C-258 of 2013 the C., in addition to abstractly ruling on the constitutionality of L. 4 of 1992, “exerted [its jurisdiction] to concretely determine the existence and amount of acquired pension rights, not just within the accused legal regime, but also within the special regime for the judiciary. The Constitutional C. in judgment C-258 of 2013 adopted particular and concrete decisions regarding the conduct of the victims and their pension rights, countering the nature of public constitutionality judgments which may only contain general, impersonal and abstract decisions.” For this reason, in the petitioners’ view, the C. disregarded the constitutional distribution of competences set forth in the C. internal legal system.

This allegedly irregular exercise of the competence of the C. transpires, in the words of the petitioners, in the following aspects of the content of the constitutionality ruling which is being questioned:

Judgment C-258 of 2013, was oriented toward a main purpose, beyond that of establishing the constitutionality of the provisions that regulate a practically extinct transitional regime: to put the finances of the S. in order redistributing pension expenses, and for that purpose it incurred in the following: a) It judged the behavior of the victims, as if they were the only ones responsible for the complex series of acts that starts in the pension petition and finalizes in the recognition of the pension by the S. – through administrative or judicial channels-, and designated almost all of them as a fraud against the L., or as an abuse of their rights, and gave all of them the treatment which the legislation reserves for said conduct; b) It ruled specifically on the existence and amount of the victims’ acquired rights, in establishing the readjustment and reliquidation of their pensions; c) It acted, and ordered the pension administrators to act, disregarding the legally established procedures, so as to affect pension rights; d) It extended its decisions to other different rights, pensions under other special regimes, which were outside the object of the constitutionality procedure, namely L. 4 of 1992; and e) It ordered the resources obtained in this fashion to be redistributed among those most in need.

In that same sense, petitioners claim the alleged victims’ right to a hearing was disregarded within the constitutional proceedings, since they were not expressly summoned to participate in the procedure and to intervene, unlike different S. bodies and trade organizations who were indeed summoned. This, “even though [the C.] had accurate knowledge as to the existence of how many persons were the bearers of the private assets of social security pensions over which decisions would be adopted, ordering an automatic readjustment or a reliquidation of the allowances, and in particular of the number of pensioners which would be affected by the measures taken at the resolution stage”. They were not notified either of the existence of the proceedings, nor were they given the right to act in the procedure by means of a legal representative, despite the fact that as a consequence of the judgment “their private assets, their social security pensions, which they enjoyed with the full and reasonable certainty of having accessed them in accordance with the L., were going to be disposed of”. For the same reason, the alleged victims did not have the opportunity either to request evidence, although this was necessary to establish the factual grounds which would support the C.’s decision. This supposed violation of the right to defense and to a hearing, according to the petitioners, stems from the fact that the Constitutional C. disregarded the legal procedure that governs constitutional complaints, and exerted a wrongful review upon individual and concrete situations consolidated under the legal regime it was called upon to examine, disregarding at the same time the competence of the legislator in the field of pension regimes in Colombia.

(ii) The C. projected retroactively the interpretation it carried out in judgment C-258/13 so that it would affect acts of pension granting which had already been adopted beforehand, via administrative or judicial paths, “in such a manner as to substitute, years later, the prevailing doctrine under which those rights had been recognized. The pensions that were granted over the two prior decades countering the new posture were declared to be not granted in accordance with the Constitution and the L..” With this, the petitioners assert, acquired pension rights, which had been consolidated for their bearers, were affected.

(iii) The C. decided without having the necessary evidentiary grounds, since it acted as an ordinary judge and examined the conduct of the actors of the pension system, yet in the constitutional proceedings there was no “evidentiary stage to determine individual conducts, whose appraisal would set the grounds for the affectation caused upon them”; it also proceeded to rule that the conduct of the more than one thousand bearers of these high pensions was illegal,...