Report No. 38 (2009) IACHR. Case No. 12.670 (Perú)

• Case Number: 12.670
• Year: 2009
• Report Number: 38
• Respondent State: Perú
• Case Type: Merits
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Asociación Nacional de Ex Servidores del Instituto Peruano De Seguridad Social y otras

REPORT No. 38/09 CASE 12.670 ADMISSIBILITY AND MERITS NATIONAL ASSOCIATION OF EX-EMPLOYEES OF THE PERUVIAN SOCIAL SECURITY INSTITUTE ET AL. PERU M. 27, 2009 I. SUMMARY 1.Between August and December 2005, the Inter-American Commission on Human R.s (hereinafter “the Inter-American Commission”, “the Commission”, or “the IACHR”) received six petitions which alleged the international responsibility of the Republic of Peru (hereinafter "Peru", "the S." or "the P. S.") for the purported violation of human rights recognized in Articles 2 (Duty to adopt domestic legal provisions), 4 (R. to life), 10 (R. to compensation), 17 (R.s of the family), 21 (R. to property), 24 (R. to equal protection), 25 (R. to judicial protection), and 26 (Progressive development) of the American Convention on Human R.s (hereinafter “the Convention” or “the American Convention”) in connection with the obligations contained in Article 1(1) of that instrument. The petitioners also claim violation of rights protected in Articles II (R. to equality before the law), XVI (R. to social security), XVIII (R. to a fair trial), and XXIII (R. to property) of the American D. of the R.s and Duties of Man (hereinafter “the American D.” or “the D.”); and in Article 9 (R. to social security) of the Additional Protocol to the American Convention on Human R.s in the Area of Economic, Social and Cultural R.s (hereinafter “the Protocol of San Salvador”). 2.The petitioners held that the constitutional reform introduced by Law 28389, published on November 17, 2004, and Law 28449, published on December 30, 2004, modified the pension system governed by Decree-Law 20530 (Law on the Pension and Compensation System for Civil Servants Not Covered by Decree-Law 19990), the core effect of which was to entitle its beneficiaries to receive a pension equalized with the wages, bonuses, and benefits received by an active civil servant performing the same or similar functions as the pensioner had upon retirement. The petitioners are associations, unions, and organizations that represent terminated and retired employees who qualify as pensioners and were covered by the pension regime under Decree-Law 20530. 3.For its part, in its first communication, the S. indicated that the requirements of admissibility were met. In ensuing briefs, the S. argued that petitions 957/05, 1049/05, and 1286/05 were inadmissible, claiming that they had not met the requirement of prior exhaustion of remedies under domestic law. As to arguments on merits, the S. noted that the constitutional reform was compatible with the American Convention and that its purpose, among other things, was to eliminate inequity in the public sector pensions system. T.S. also held that the reform did not entail an impairment of the core content of the right to a pension to the detriment of the petitioners. 4.H. analyzed the position of the parties, the Inter-American Commission found that the petition is admissible and that the P. S. did not violate the rights enshrined in Articles 21, 26 and 25 of the American Convention or the obligations contained in Articles 1(1) and 2 of said instrument. The Commission concluded, furthermore, that the instant case is inadmissible as regards the alleged violations of rights protected in Articles 4, 10, 17, and 24 of the Convention. 5.It should be noted that this report on admissibility and merits deals exclusively with the constitutional reform of 2004 which modified the pension regime under Decree-Law 20530. The Commission continues to process an array of joined petitions submitted by a number of the victims in the instant case that concern failure to comply with judicial decisions ordering the payment of pension amounts resulting from the application of this Decree-Law while it was in force. II. PROCESSING BY THE COMMISSION 6.The Commission received petition 957/05 from the National Association of Ex-Employees of the P. Social Security Institute (ASEIPSS) on August 23, 2005. On November 25, 2005, the Civil Association NGO Protection of International R.s and Social Development in Latin America and the Caribbean(APRODIAC) informed the Commission of its joinder to the petition. 7.The petitioners submitted additional observations in a communication of October 14, 2005. S., in a communication dated November 9, 2005, the petitioners requested a hearing before the IACHR in order to set out their case. By the same token, the Center of Labor Consultancy of Peru(CEDAL) requested a work meeting on January 16, 2006. In response, the Commission convened a work meeting at its 124th regular session on M. 8, 2006, to address the situation of the human rights of pensioners in Peru. That same day, the Meeting of Presidents of Associations of Law 20530 Retirees submitted additional information. 8.Petition 1049/05, was received on September 6, 2005. The petitioners furnished additional information on October 28, 2005. 9.Petition 1177/05 from the National Retirees Federation of Peru (CENAJUPE) was received on October 19, 2005. The petitioners subsequently supplied additional information on February 14, 2006. 10.On November 1, 2005, the IACHR received petitions 1286/05 and 1287/05, from the Federation of Workers and Ex-Employees of the Health Insurance Service (CFTESSALUD) and the Association of Retirees of the National Company of Ports S.A., General San Martín Port Terminal (ACJENAPU-Pisco), respectively. 11.Petition 1414/05 from the Bar Association of Cuzco was received on December 8, 2005. 12.On May 1, 2006, the Inter-American Commission on Human R.s decided, pursuant to Article 29(d) of its Rules of Procedure, to join petitions 1049/05, 1286/05, 1287/05, 1177/05, and 1414/05 and process them together as petition 957/05 because the allegations they contained addressed the same facts. On that same date the IACHR relayed the pertinent portions of the petitions to the government of Peru and gave it two months to respond, in accordance with Article 30 of its Rules of Procedure. 13.On J. 26, 2006, the S. submitted Brief 85-2006-JUS/CNDH-SE/CESAPI, which was forwarded to the petitioners. 14.The National Association of Ex-Employees of the P. Social Security Institute (ASEIPSS) submitted comments on the S.'s brief in communications dated September 19 and October 12, 2006. 15.In response to a request for a hearing, on September 19, 2006, the Commission invited the parties to a public hearing, which was held on October 19, 2006 in the framework of the 126th Regular Session of the IACHR. 16.On November 1, 2006, the S. presented Brief 120-2006-JUS/CNDHSE/CESAPI. On December 8, 2006 the S. submitted Brief 142-2006-JUS/CNDH-SE/CESAPI. On December 28, 2006, the S. presented Brief 313-2006-EF/65, prepared by the Ministry of Economy and Finance. This brief was supplemental to Brief 142-2006-JUS/CNDH-SE/CESAPI. On May 31, 2007, the S. submitted Brief 62-2007-JUS/CNDH-SE/CESAPI. A. of these briefs were relayed to the petitioners. 17.On M. 22 and J. 25, 2007, the Bar Association of Cuzco presented its observations on the S.’s briefs. The National Association of Pensioners of the Nation’s Bank submitted additional information on October 18, 22, and 24, 2007. 18.T.S. put forward additional observations in communications received on J. 15 and 27, 2007. 19.On September 21, 2007, the International Commission of Jurists presented an amicus curiae brief in the framework of the proceedings on the instant petition. The IACHR forwarded said document to the parties on December 11, 2007. 20.CEDAL submitted additional observations on September 18, 2007. 21.On October 3, 2008, the Commission wrote to the parties informing them that, in accordance with Article 37(3) of its Rules of Procedure, it had decided to defer its analysis of admissibility until the stage on merits in the case, due to the link between both analyses. At the same time the Commission also requested the petitioners to present their observations on the merits of the petition within a period of two months. 22.On December 4, 2008, the National Association of Retirees of National Company of Ports S.A., National Association of Pensioners of the Nation’s Bank, Bar Association of Cuzco and Retirees Federation, presented their observations on merits. On December 16, 2008, the IACHR received observations on merits from the National Association of Ex-Employees of the P. Social Security Institute. A. of these communications were transmitted to the S. on December 29, 2008, at which time it was requested to present its observations on merits within two months. 23.On January 12, 2009, CEDAL submitted comments. Those comments were forwarded on that same day to the S., which was given two months to present its observations. On M. 13, 2009 the S. presented its observations on the merits, which were transmitted to the petitioners for their knowledge on M. 16, 2009. III. POSITIONS OF THE PARTIES A. The petitioners 24.The joined petitions disputed the constitutional and legislative reform introduced in 2004 in order to permanently terminate the pension regime under Decree-Law 20530 of 1974. The petitioners say that the principal characteristic of the regime was that it entitled its beneficiaries to a pension equalized with the remuneration received by an active civil servant holding the same or a similar post as the pensioner upon the latter’s retirement or termination, which, they argued, enabled their pensions to preserve their real purchasing value. 25.As regards contributions, they noted that originally under the Decree-Law 20530 regime the contributions that active employees had to make were 8%, 12%, or 15%, depending on the amount of the remuneration. They mentioned that subsequently the contribution was set at 12%, of which the...