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The Constitutional Court denied a guardianship of a 58-year-old woman who requested in that judicial appeal that be allowed to switch from a private fund to Colpensiones.
According to the woman, her rights to a dignified life, health, equality and a fair and proportionate pension were being violated by not allowing her to be transferred from the Individual Savings Scheme with Solidarity (Rais), which is the one they manage private funds, to the Medium Premium Regime with Defined Benefit (RPM), which is Colpensiones.
In her guardianship, she assured that in 1998 she went to Protección, the private fund, without having sufficient information about him at that time.as “consequences and risks that the decision to move from one regime to another could have in his future life”, As he pointed out that his pension would be reduced in the private fund and, as he assured, he currently suffers from several catastrophic diseases for which he needs more resources, since he only has the allowance.
(Read also: Man cannot inherit the pension of a deceased extramarital child).
In 2013, although she requested to be allowed to transfer from the private fund to Colpensiones, the latter state entity did not allow it since she did not meet the requirements for the transfer. It is not allowed to change the pension scheme when there are 10 years to access the allowance.
In the judicial process, the woman assured that “it will never be the same to receive a pension from the Individual Savings System with Solidarity, where workers were retired with practically the minimum wage, than the Average Premium Regime Pension, where workers were guaranteed benefits for which they fought throughout their lives, “he said.
(We invite you to read: How to know which pension fund is best for me?).
During the guardianship process, it was learned that the woman had not yet applied for the old-age pension, as she was awaiting her transfer, and worked with the Externado University with an indefinite term contract for 6.1 million from pesos of basic salary. In addition, it has three properties, two vehicles and a cumulative severance pay of 25 million. It was also known that his monthly expenses are 10.5 million pesos corresponding to mortgage loans, service and administration expenses, medical treatments and financial support for his family.
In the private fund, the woman has a saved balance of 329 million pesos and a pension bonus of 85 million.
(Read: Divorced women can receive a pension from their ex-partner).
In this case, the Court even received a intervention of the Ministry of Finance asking it to declare the guardianship inadmissible or deny what the woman was asking for since, in her opinion, the “disruption of the General Pension System and the fiscal impact that this entails on the financial sustainability of the system” should be avoided.
And it is that, according to figures from the Ministry of Finance, provided by Colpensiones, by 2017 there were 384,000 demands requesting the extemporaneous transfer to Colpensiones. He also pointed out that the fiscal impact of 16,065 rulings ordering the transfer to that regime was 21.35 billion pesos.
Why did the Court reject the guardianship?
When evaluating these elements, the Constitutional Court rejected the protection of the woman, noting that, in addition to this remedy, in the ordinary labor justice there is already a process for a lawsuit that she filed in 2017 so that his transfer to Colpensiones is allowed, and that at this moment is pending a ruling in the Labor Cassation Chamber of the Supreme Court of Justice.
For this reason, for the Court, the protection promoted by the woman is inadmissible since “the ordinary means of judicial defense that it has at its disposal is suitable and effective, and the imminent occurrence of irremediable damage is not noticed.”
The ordinary means of judicial defense available to him is suitable and effective, and the imminent occurrence of irremediable damage is not noticed.
Thus, the Court assures that in order to question the decisions made by Colpensiones y Protección SA that prevented his transfer, the woman has the ordinary labor process within her reach which is in article 2, numeral 4, of the Labor and Social Security Procedural Code, which was modified by article 622 of Law 1564 of 2012.
For the Court, this labor procedure is a suitable and effective mechanism to protect its guarantees, and not guardianship, which is an exceptional and subsidiary remedy when all ordinary avenues have been exhausted.
According to the Court, the ordinary labor process “is the natural setting” to resolve this type of petitions because, on the one hand, labor judges have the competence to establish whether the current norms allow what the citizen is asking for. But, in addition, the corporation points out, because the ordinary process is “adequate to carry out the evidentiary examination that requires the substantive resolution of the petitioner’s claim.”
(You may be interested: Requirement of coexistence of 5 years for the pension is not for everyone).
Although the woman had asked the Court to order his transfer while the Supreme Court made a decision on the merits, the high court also denied that request.
In its ruling, it assures that although that corporation has allowed the guardianship to be appropriate to order the provisional recognition of a pension while the appeal is made in the ordinary justice, “This possibility has been subject to the verification of the threat or violation to the minimum vital of the applicant or the imminent occurrence of irremediable damage “.
And in this case, the Court did not find that the woman was facing this imminent damage, because, for the moment, what she is asking is the transfer of the pension scheme, not that she be granted a pension.
An urgent response from the guardianship judge is not required to avoid the imminent materialization of irremediable damage
But also because although her expenses amount to 10 million pesos, the Court said that she has an “important economic patrimony, savings from unemployment and a labor relationship in the modality of indefinite term with a salary of 6.1 million, that allow him to satisfy his vital minimum and procure a decent life while the appeal is processed “. And although she has illnesses, the Court assures that these illnesses are being treated with her health system.
(In addition: $ 90,000 for child food: the case that opened debate on networks).
Thus, the Court tells the woman that at this time, waiting for the cassation appeal that she has in the Labor Chamber of the Supreme Court of Justice to be resolved is not a disproportionate burden for her “and, therefore , an urgent response from the guardianship judge is not required to avoid the imminent materialization of irremediable damage to their fundamental rights “.
Also, he told her that she can ask the Supreme Court of Justice to expedite a decision in her case so that your request is resolved faster.
JUSTICE DRAFTING
Twitter: @JusticiaET
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