been determined that […] the administrative courts […] established compensation for loss of
potential earnings based on objective and reasonable criteria,” and finally to conclude that
“the Court assesses positively the measures taken by the domestic courts in this case, 7 and
finds that the amount established by these courts is reasonable in terms of its case law.”
Here there is a clear petitio principii, because precisely what should have been determined,
using convincing arguments based on the evidence, was that the criteria used by the
Colombian administrative system of justice had effectively been “objective and reasonable,”
and that “the amount established by these courts” was “reasonable in terms of [the] case
law” of the Court, so that it could be assessed “positively,” not only to recognize “the efforts
made by Colombia” (as in the Case of the La Rochela Massacre, para. 245), but rather to
consider them decisive and final.
10.
The reasoning of the majority of the members of the Court has unduly inverted the
correct reasoning set out in the Velásquez Rodríguez case (paras. 30 and 31) because, by
accepting uncritically the decision of the domestic courts on “the formula used to calculate
and distribute the compensation for loss of earnings,” it is, in fact, “condition[ing] the
reparations established by the Court to the instruments of reparation that exist under the
domestic laws of the State Party responsible for the violation” and allowing the calculation
of the compensation for loss of earnings to be established “in function of the defects,
imperfections or deficiencies of national law,” instead of establishing compensation
“independently of it” and based “upon the American Convention and the applicable
principles of international law.”
Alberto Pérez Pérez
Judge
Pablo Saavedra Alessandri
Secretary
7
[Footnote 334 in the text of the judgment] Cf. Case of the La Rochela Massacre, supra note 16, para. 245.
4