Judgment No. T-426/92
Tutela action brought before the Colombian Constitutional Court against the state of Colombia claiming that the National Social Security Fund’s delay in responding to a widowed petitioner’s pension transfer request resulted in violations to his fundamental rights under the Colombian Constitution (1991). The case details the fundamental right to social security enshrined in Article 48 and expanded by the right to appropriate payment and periodic adjustment of legal retirement benefits (Art. 53) and the right to assistance and protection for the elderly by society, family, and the state (Art. 46).
Petitioner, 69-year old Hernando de Jesus Blanco Angarita, filed a tutela action before the Constitutional Court after the First Civil Municipal Court of Bogota found that the National Social Security Fund had not violated his constitutional rights by delaying the transfer of his deceased wife’s pension. The Constitutional Court reversed the First Civil Municipal Court and held that there had been a violation of rights recognized both in the Colombian Constitution and international law. The Court identified violations to the fundamental right to petition (Article 23), requiring prompt resolution of cases involving the elderly; a violation to the fundamental right to social security (Article 48) expanded by Article 53’s right to periodic adjustments of legal retirement benefits; and a violation of the right to assistance and protection for senior citizens by society, family, and the state (Article 46).
The Court also held that the delay was a violation of Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which guarantees social security to the elderly.
The Court awarded Mr. Blanco Angarita and his family monetary compensation for the violation of his fundamental rights and mandated a warning to the public servants highlighting their duties of due diligence and forbidding them from violating fundamental rights in the future.
Judgment T-426/92 is the first case decided by the Colombian Constitutional Court addressing elderly people’s subsistence rights. The decision recognized the right of an elderly person to receive the payment of his pension in order to give him the resources to subsist.
Since the ruling, the Court continued to expand social security rights for all, lower the age of retirement for women, order courts to recognize social security rights for unmarried couples, and grant some women greater social security benefits than men because of institutionalized sexism.
The Colombian Constitution provides special protection for elderly people. In subsequent decisions, the Court built upon the reasoning of T-426/92 to establish a right that is not named in the Constitution: the right of all members of society to a mínimo vital (a vital minimum), which is understood to mean the minimum of material things that a person must have in order to enjoy other constitutional rights and freedoms. The doctrine of a right to a mínimo vital plays an essential role in Colombian jurisprudence for two reasons: it assures justiciability of socio-economic rights in certain situations where tutela is inapplicable (unless necessary to protect against the violation of a fundamental right), and it permits the Court to extend protection to groups of people not specifically recognized by the Constitution as entitled to special protection.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.