Case of Five Pensioners v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 98, ¶103 (2003).
The “five pensioners” had retired after working for the state for over 20 years. Pursuant to
Decree Law No. 20530 (enacted in 1974), upon retiring, petitioners received pensions equal to
the salary of the active public servants occupying their former positions. The pensions were
adjusted when the salaries of the occupants increased. Decree Law No. 25792, promulgated in
1992, authorized a different government entity to oversee and determine pension payments.
Consequently, the state of Peru dramatically decreased pension payments to retirees by
approximately 78% without providing any prior notice or legal rationale to recipients. Court held
that regressive domestic social spending policy does not undermine state’s obligation to
progressively develop economic, cultural, and social rights if those impacted by the policy are a
limited group who do not represent the prevailing situation.
2. Core issue(s)
Whether the Peruvian State’s modification of its pension regime, resulting in the reduction of
pension payments to petitioners, violates Articles 21 (Right to Property), 25 (Right to Judicial
Protection) and 26 (Progressive Development) of the American Convention, in relation to the
obligations established in Articles 1(1) (Obligation to Respect Rights) and 2 (Domestic Legal
Effects).
3. Holding(s)
•
•
•
•
State violated Art. 21 (right to property) (p. 51, #121)
State violated Art. 25 (right to judicial protection) (p. 61, #141)
Violations of Art. 21 and 25 constitute failure to comply with the general obligation
established in Article 1(1) to respect the rights and freedoms embodied in the Convention
and to ensure their free and full exercise. (p. 71, #166)
Court declined to rule on the Art. 26 (progressive development of economic, social and
cultural rights). (p. 64, #148)
4. Key Points
•
•
•
•
The adoption of regressive policies, aimed at reducing the degree of enjoyment of
economic, social and cultural rights, violates the principle of progressive development.
(p. 62, #143a)
According to Article 5 of the Protocol of San Salvador, laws that impose restrictions and
limitations on economic, social and cultural rights may be justified, provided that they
have been “promulgated in order to preserve the general welfare in a democratic society
and only to the extent that they are not incompatible with the purpose and reason
underlying those rights” (p. 62, #142b)
Pro homine principle established in Article 29(b) of the American Convention (No
provision of this Convention shall be interpreted as…restricting the enjoyment or
exercise of any right or freedom recognized by virtue of the laws of any State Party)
should guide interpretation of progressive development doctrine. (p. 62, #143b)
The right to a pension implicates the right to a dignified life: “The essential content of the
right to social security is to ensure to all persons a protection against the consequences of
ageing or of any other contingency beyond their control that implies a deprivation of the
essential means of support to lead a dignified and decorous life.” (p. 62, #142c)