33
specific information on the salary restructuring that took place in 1993.
112. With regard to the estoppel principle, the Tribunal indicated previously that it
means that once the State has acquiesced to the Commission with regard to certain
disputes, contrary positions on the same disputes are not possible before the Court
(supra para. 26). This does not necessarily imply, as the representative argues, that the
State’s acknowledgment of responsibility must be broadened or has an effect on disputes
that were not included in the acquiescence. Therefore, the fact that the State has
recognized its responsibility while on the other hand not accepting the amount of the
pecuniary damages, does not constitute does not constitute a violation of that principle.
113. Separately, the representative emphasized that the report from the Ministry’s
consultant “has not received any comments or challenges from the State” and that it
therefore invalidates the State’s expert witness report. However, the Court highlights
that although the representative and the State are in dispute over whether the report
from that consultant is binding, the truth is that both that report and the State’s expert
witness report agree on how the calculation through the present day should be done
(supra para. 107). The only difference is that the State’s expert witness report argues
that this is the case through the present day thanks to the 1993 salary restructuring.
The report from the consultant specifies nothing regarding this restructuring, for which
reason it does not constitute evidence that detracts from the State’s expert witness
report.
114. The Tribunal concludes that the representative did not submit specific evidence
and arguments that invalidate the scope of the 1993 salary restructuring established in
the State’s expert witness report. In addition, the Court highlights that the
representative does not present evidence on each of the victims’ salaries after the 1993
restructuring entered into force for comparison to what was in place before the
retroactive elimination of the scales. Likewise, the representative does not submit
specific arguments that would allow for the determination of whether the formula used
to calculate the new salaries in 1993 included the salary scales. Neither did the
representative indicate which salary was used as a basis for carrying out the
restructuring - the salary from before or after the scale system was eliminated. Finally,
the argument that a 2010 SEDAPAL open tender discredits the State’s expert witness
report cannot be admitted either. It has already been established that that tender was
declared void and that it does not affect the admissibility of the State’s expert witness
report (supra paras. 48 and 49). The aforementioned tender does not indicate a criteria
that would serve as evidence to detract from the scope that the State’s expert witness
report establishes for the 1993 restructuring - that is, that it absorbs “all the raises prior
to” 1993.
115. Consequently, taking into account that the representative did not present specific
evidence and arguments to refute the scope of the 1993 salary restructuration in the
expert opinion presented by the State and that the open tender by SEDAPAL does not
constitute evidence to refute such scope, this Tribunal rules to set the amount of
pecuniary damages in this case at 9,622,607.88 (nine million, six hundred and twentytwo thousand, six hundred and seven nuevo soles and eight-eight cents), which has
been determined based on the standards of equity, considering, among other elements,
the expert opinion of the State. Said amount should be distributed in detailed form in the
attached annex to this Judgment and its equivalent in US$ 3,475,120.22 (three million
four hundred and seventy-five thousand, one hundred and twenty and 22/100 dollars of
the United States of America), pursuant to the exchange rate at the time of issuance of
this Judgment, according to the Central Reserve Bank of Peru, as established in the
State’s expert witness report.
c.2.
Non-pecuniary damages