I/A Court H.R., Case of the “Five Pensioners” v. Peru. Merits, Reparations and Costs. Judgment of February 28, 2003. Series C No. 98.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2004-1-e.pdf




Although the right to an equalised pension is an acquired right, in accordance with Article 21 ACHR (American Convention on Human Rights, hereafter "the American Convention"), States may restrict the enjoyment of the right to property for reasons of public utility or social interest.


In the case of the patrimonial effects of pensions (the pension amount), States may reduce these only by the appropriate legal procedure and for the said reasons. Moreover, Article 5 of the Additional Protocol to the American Convention in the area of Economic, Social and Cultural Rights allows States to establish restrictions and limitations on the enjoyment and exercise of economic, social and cultural rights "by means of laws promulgated in order to preserve the general welfare in a democratic society only to the extent that they are not incompatible with the purpose and reason underlying those rights."


It is not enough that legal recourses exist formally; they must be effective; that is, they must give results or responses to the violations of rights established in the American Convention.


The safeguard of the individual in the face of the arbitrary exercise of the powers of the State is the primary purpose of the international protection of human rights.


Economic, social and cultural rights have both an individual and a collective dimension. Their progressive development should be measured as a function of the growing coverage of economic, social and cultural rights in general, and of the entire population's right to social security and to a pension in particular, bearing in mind the imperatives of social equity, and not as a function of the circumstances of a very limited group of pensioners, who do not necessarily represent the prevailing situation.


It is not admissible to allege new facts before the Inter American Court of Human Rights, distinct from those presented in the Inter-American Commission on Human Right's application - except for those facts that may explain, clarify or reject the facts that have been mentioned in the application, or be consistent with the claims of the plaintiff. Supervening facts, on the other hand, can be forwarded to the Court at any stage of the proceeding before judgment has been delivered.


Regarding the incorporation of rights other than those included in the application filed by the Commission, the representatives of the alleged victims may invoke such rights before the Court. The victims are the holders of all the rights embodied in the American Convention and, if this were not admissible, it would be an undue restriction of their condition as subjects of international human rights law. It is understood that the foregoing, with regard to other rights, refers to facts that are already contained in the application.


The Court is empowered to examine the violation of American Convention articles that are not included in the application, the brief of the representatives of the alleged victims, and the State's answer to the application, based on the iura novit curia principle, which is solidly supported in international jurisprudence. In this sense, the judge has the power and even the obligation to apply the pertinent legal provisions in a case, even when the parties do not invoke them expressly.


The general obligation of each State Party to adapt its domestic law to the provisions of the American Convention, in order to guarantee the rights it embodies, implies that the measures of domestic law must be effective (the principle of effet utile). This means that the State must adopt all measures so that the provisions of the American Convention are effectively fulfilled in its domestic legal system, as Article 2 ACHR requires. Such measures are only effective when the State adjusts its actions to the Convention's rules on protection.


The general duty of Article 2 ACHR implies the adoption of measures in two ways. On the one hand, derogation of rules and practices of any kind that imply the violation of guarantees in the American Convention. On the other hand, the issuance of rules and the development of practices leading to an effective enforcement of the said guarantees.




In April 1992, a Peruvian state institution suspended payment of Reymert Bartra Vásquez's pension and, in September of the same year, reduced by approximately 78% the pensions of Carlos Torres Benvenuto, Javier Mujica Ruiz-Huidobro, Guillermo Álvarez Hernández and Maximiliano Gamarra Ferreyra, without any prior notice or explanation. All of the named individuals, state employees who had retired after working for at least 20 years, took legal measures to challenge the state's action and to demand restitution. As a result of these claims, various judgments were issued in national courts ordering the Superintendence of Banks and Insurance to pay the amounts owed to the abovementioned individuals according to law.


On 4 December 2001, the Inter-American Commission on Human Rights brought the case before the Inter-American Court of Human Rights. In its Judgment of 28 February 2003, the Court ruled that, by arbitrarily modifying the victims' pensions and by not executing the judgments of the Constitutional and Social Law Chamber of the Peruvian Supreme Court of Justice until almost eight years after they had been delivered, the State violated both the right to property (Article 21 ACHR) and the right to judicial protection (Article 25 ACHR) of the American Convention with respect to the above named individuals. Furthermore, the Court declared that the State failed to comply with the general obligations of Article 1.1 ACHR (Obligation to Respect Rights) and Article 2 ACHR (Domestic Legal Effects), in relation to the violation of the substantive rights indicated above.