PARTIALLY DISSENTING OPINION
OF JUDGE AD HOC VICTOR OSCAR SHIYIN GARCÍA TOMA
As to the issue of the reparations, I deem that the quantum of such reparations
regarding the pecuniary and non-pecuniary damage, costs and expenses has been
established without any specific technical ground, under the discretionary criteria
that is more and more discussed. Based on this reason, I have the need to point
out that I do not have any objective parameter to consider as tiny, reasonable or
excessive the sums established by the Court.
It is worth mentioning that the amounts of reparations that the defendant State
has, with all its efforts, been paying to victims or next-of-kin for acts of terrorism
(civilians, political authorities and police and military officers); as well as the cases
related to the HIV/AIDS infection at State hospitals are, in no way, comparable.
Therefore, it is clear that between the quantum determined by the Court and the
defendant State within the area of reparations, there is a remarkably and
unjustified asymmetry and disparity.
In the future, it would be important for the Court to rely on specialized experts and
to determine precise rules for the establishment of said reparations. It should not
be ignored the fiscal reserves, average income levels of the defendant State,
among other aspects. This would allow the reparations to advance legal security.
JUDGE AD HOC VICTOR OSCAR SHIYIN GARCÍA TOMA