4
The latter annulled the judgment which had condemned Ortigoza to more than
twenty years’ imprisonment (and somewhat less to the other defendants) during the
dictatorship.
Nevertheless, it should be indicated that the extended procedure followed by
the parties and, particularly the authentic anguish suffered by the appellant, victim
of an inadmissible precautionary measure, with the consequent damage, requires
this Court to rule on the claim for compensation. As the chapter of this judgment on
considerations establishes, “the State’s international responsibility arises
immediately from an internationally wrongful act, although it can only be declared
after the State has had the opportunity to repair the act using its own mechanisms.”
The Court has reiterated in its judgments that “it is a principle of international
law that any violation of an international obligation that has caused damage gives
rise to the obligation to remedy it adequately.” 4 Hence, in application of the
provisions of Article 63(1) of the American Convention, if the Court finds the State
has violated a right or freedom protected by the Convention, “it shall rule that the
injured party be ensured the enjoyment of his right or freedom that was violated
[...and,] if appropriate, that the consequences of the measure or situation that
constituted the breach of such right or freedom be remedied and that fair
compensation be paid to the injured party.” In the instant case, in accordance with
this norm, the Court ordered the reparation corresponding to Mr. Canese for the
damage caused by the violations of the Convention declared in the judgment. It is
the State’s obligation to comply with the measures of reparation ordered by the
Inter-American Court.
The appellant cannot be obliged to reinitiate the whole judicial
procedure claiming compensation; nor can the domestic constitutional
legislation of the respondent country be disregarded, or the clear
requirement of exhaustion of the ordinary remedies that have been created.
The Court has established a case law whereby, having verified the existence of a
damage in the penal jurisdiction with the corresponding sanction, it can require the
respondent State to reach an agreement on compensation with the plaintiff (see pp.
501 to 750 – Faúndez Ledesma). Moreover, it should not be forgotten that the
fundamental purpose of the appellant has always been to demonstrate the
arbitrariness committed by the State and its judicial agents, particularly by
maintaining almost indefinitely a restrictive precautionary measure that exceeded
any legal or rational consideration.
We have to observe that there was arbitrariness in the contested
judicial decisions.
It is inadmissible to punish an individual with a
precautionary measure for years; even longer that the possible maximum
sanction that existed. Also, the State exposed itself to incalculable patrimonial
damage, deriving from the obligation to provide reparation that arises from the
unlawful conduct of the judges involved in the case. This type of conduct by officials
cannot be allowed under the rule of law.
4
Case of the Gómez-Paquiyauri brothers. Judgment of July 8, 2004. Series C No. 110, para. 187;
Case of 19 Merchants. Judgment of July 5, 2004. Series C No.109, para. 219; and Case of Molina-Theissen
case. Reparations (Art. 63.1 American Convention on Human Rights). Judgment of July 3, 2004. Series C
No. 108, para. 39.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents