11
37.
However, on previous occasions I have observed –and do so again in this
opinion– that the very same end can be achieved through less controversial means.
The solution that the Court customarily uses in its orders presupposes an alteration
to the State’s tax system: a tax exemption that may be complicated and impractical.
The same end can be achieved by some other means. One alternative would be to
order that the agreed upon sums shall be “liquid” or “net” of taxes. So long as the
amount ordered by the Court is covered, the State could make allowance for taxes
owed by using a subsidy or by adding something to the amount ordered by the Court
so that, once the deductions for taxes required under tax law have been made, the
amount owed and paid is precisely the amount that the Court ordered in its
Judgment.
7.
Expenses and fees of legal counsel
38.
This case is the first time that the Court has ruled that the amounts owed to
third parties in the form of expenses and fees for those who provided the victim’s
legal counsel, would be handed over directly to the victim, so that the victim –and
not the Court- would apportion that sum as he saw fit and with that satisfy any
obligations that he may have incurred or as equity dictates. It was with the
Judgment on Reparations in the Case of Garrido and Baigorria, of August 27, 1998,
that the Court established certain criteria regarding the amounts owed to those who
provide that assistance, which is unquestionably of the utmost importance. The
function of providing international protection of human rights would be a difficult one
without the efficient services so frequently rendered by professionals who are the
advocates, both domestically and internationally, of the victim’s rights. They are an
important –and sometimes even decisive- ingredient in the activities aimed at
enabling access to justice.
39.
To assess costs and expenses in the present judgment, one of which is for the
legal counsel to which I alluded in the preceding paragraph, the Inter-American
Court deemed it appropriate to take into account not only the receipts and vouchers
provided –which in many cases is virtually impossible to do in the manner that
rigorous accounting practices require- but also the particular circumstances of the
case, the characteristics of the respective proceedings and the nature of the
jurisdiction for the protection of human rights, which is so very different from what
one would find, for example, in the case of strictly financial matters. When the time
came to set costs and expenses, therefore, the Court dismissed the idea of setting
attorney’s fees as a percentage of the compensation obtained and held that there
were other factors to consider, such as “the evidence introduced to demonstrate the
facts alleged, full knowledge of international jurisprudence and, in general,
everything that would demonstrate the quality and relevance of the work
performed.” (par. 83).
40.
The Inter-American Court’s finding was that while it must recognize the
victim’s need to acknowledge the assistance he has received and the expenses that
have been incurred to provide that assistance, it is not the function of the Court to
assess the performance of the legal advisors and to order that payment be made to
them directly. This has to be decided by the person who retained their services and
who was at all times abreast of their work and their progress. The Court did not
order direct payment of fees to physicians who attended the victim, or payment of
any other considerations to certain parties. It is the victim, using the sum that he
receives, who can best determine what is owed or what is equitable. The contract
was made between the victim and his advisors, directly and of their own free will,
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents