TC declares suspension of ONP pensions unconstitutional

In a new binding precedent, the Plenary Session of the Constitutional Court declared unconstitutional and illegal the suspension of pensions granted by the Pension Normalization Office (ONP). According to the ruling in file 02903-2023-PA/TC, said entity annulled the payment corresponding to the retirement amount to a citizen who could not exercise his right to defense.

Likewise, the TC ordered the ONP to restore the payment of his pension since April 2014, added to the payment of legal interest and the costs of the process. Through this ruling, the jurisprudential criterion that has had the highest instance of interpretation of the Constitution to date is reformulated.

TC declares it unconstitutional to suspend ONP pensions: what does the ruling say?

The Plenary Session of the Constitutional Court established a new binding precedent by stating that the Pension Normalization Office (ONP) does not have the power to suspend a retirement pension once it has been granted, since there is no law that allows it to do so. This, following the resolution of the amparo claim that was presented by citizen Erasmo Lucio Cabezas Carpio, who was granted this pension right on December 31, 1992, and after twelve years, it was suspended without guaranteeing him the right to defense.

To support its ruling, the TC established the following rules that the ONP must observe to act within the legal framework, if it detects any irregularity in a pension already granted:

1. The suspension of a pension, because it affects a fundamental right, must be expressly provided for in a law or regulation with the force of law along with the requirements, deadlines and other formalities, in addition to the guarantees of due process. Without such legal authorization, the ONP cannot suspend the payment of the pension.
2. The ONP may declare ex officio the nullity of the administrative act granting a pension, but within the two-year prescription period established in the Single Ordered Text of the General Administrative Procedure Law. In addition, you must observe the procedure and other requirements indicated in article 213 of the TUOLPAG.
3. If the administrative act granting a pension was issued as a consequence of a criminal infraction, which is reported by the ONP to the Public Ministry, the nullity may be declared ex officio within a period of two years “counted from the notification to the authority.” administrative of the final criminal conviction sentence.
4. In response to this reformulation of the jurisprudential criterion, the TC will grant the ONP a period of eight months, so that, if applicable, it can declare the nullity of the currently suspended pensions ex officio, provided that this nullity is carried out within the period of two years. If the period has expired, the ONP must proceed with the restitution of the pension, without prejudice to reporting, if applicable, the acts of criminal infraction to the Public Ministry.

What are the background to this TC ruling on the suspension of ONP pensions?

The ruling of the Constitutional Court that declared the amparo claim against the Pension Normalization Office founded was presented by citizen Erasmo Lucio Cabezas Carpio on July 16, 2014. He had been granted a retirement pension in December 1992, and almost 12 years later, the ONP suspended said payment without giving him the right to defense.

In response to this request for protection, the ONP alleged that it did not violate the citizen’s right to social security and indicated that said payment was suspended when it verified that the documents it presented to prove the minimum contributions had indications of falsity. After that, the Second Constitutional Court of Lima declared said claim founded, considering that the entity should have granted the necessary period for the citizen to defend himself and present the means of proof to demonstrate the contributions.

However, the reviewing Superior Chamber revoked said appealed resolution and declared it inadmissible, since the suspension of the appellant’s pension was based on the fact that the contributions to the National Pension System were not credited, due to the failure to locate the aforementioned company at the address provided by the plaintiff. For the Superior Chamber, the rights invoked in the lawsuit were not violated.

TC ruling orders the restoration of the ONP pension in favor of the citizen: what else does it indicate?

As mentioned above, the Constitutional Court declared founded the claim for protection presented by former accountant Erasmo Cabezas regarding the suspension of pension payments provided by the Pension Normalization Office. Likewise, he ordered said entity to restore the payment of his retirement pension since April 2014, added to the legal interest and costs of the process.

In this way, the TC gave the ONP a period of eight months to cancel ex officio the currently suspended pensions, provided that this nullity is declared within the period provided for in article 213.3 of the TUOLPAG. Finally, he urged Congress and the Executive Branch to provide the means that allow the ONP to carry out its subsequent oversight work, within the statute of limitations, to declare the nullity of the administrative act.