GENEVA (11 June 2018) – Ecuador violated a woman’s right to social security by denying her a retirement pension, UN experts said today in response to a complaint she filed with them in 2015. She also suffered discriminatory treatment on the basis of her gender due to the conditions of her affiliation with the voluntary contribution pension system, the experts found.
The human rights experts, from the Geneva-based Committee on Economic, Social and Cultural Rights, sided with the woman, who was denied a special reduced retirement pension despite paying into Ecuador’s social security pension system over a period of 29 years. In 1989-90, she missed eight consecutive monthly contributions, which according to the law would have entailed the termination of her affiliation to the social security. Yet, it was only after she decided to retire in 2001 that the Ecuadorian Social Security Institute (ESSI) invalidated the 65 monthly contributions into the system that she had made between 1989 and1995.
“It is unfair and disproportionate for a person to be disaffiliated for not being able to pay six or more consecutive monthly contributions. In this case, the petitioner had already made a considerable number of contributions for so many years in good faith. Moreover, the ESSI received all her contributions until she decided to retire, creating the legitimate expectation that she had fulfilled all the requirements to obtain her pension” said Virginia Bras Gomes, Chairperson of the Committee, adding that the situation was exacerbated by the fact that Ecuador does not have a comprehensive non-contributory old-age pension scheme.
Having lost her case in the Ecuadorian courts, the woman was able to complain to the Committee because Ecuador in 2010 ratified the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The fact that she was paying into the voluntary regime while caring for her own family and therefore receiving no salary was also noted by the Committee in its decision, where it found that the conditions of her affiliation with the social security pension scheme constituted discriminatory treatment on gender grounds.
“Sometimes legal provisions, although formulated in a neutral manner, might actually affect more women than men,” said Committee member Rodrigo Uprimny. In such cases, the application of these legal provisions can amount to indirect discrimination on gender grounds, he explained. “In this case, Ecuador has not provided sufficient detail as to the reasonableness and proportionality of the eligibility requirements for voluntary affiliation, or the conditions for the termination of such affiliation” he said with reference to women engaged in unpaid domestic work.
The Committee’s decision urges Ecuador, as a party to the International Covenant on Economic, Social and Cultural Rights, to grant the woman the benefits she is entitled to as part of her right to a pension, or other social security benefits enabling her to have an adequate and dignified standard of living. The Committee also urges Ecuador to adopt legislative and administrative measures to ensure, to the maximum of its available resources, that similar situations do not occur in the future.
The full decision is available here.
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The Committee on Economic, Social and Cultural Rights monitors States’ parties adherence to the International Covenant on Economic, Social and Cultural Rights. The Committee is made up of 18 members who are independent human rights experts drawn from around the world, who serve in their personal capacity and not as representatives of States parties. For more information about the Committee, please click here.
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