35
this case - have been subject to psychological and/or emotional suffering that includes
“various kinds of retaliation that SEDAPAL has carried out over these claims, both
domestically and internationally109 through freezing their salaries without the right to a
raise for more than two (02) years in a row, and later through the improper relocation of
the lowest subcategory in its hierarchical salary levels, even though they had sufficient
merit to deserve placement in the highest subcategory;” Moreover, he indicated that due
to the various forms of retaliation “that have culminated in the firing of more than 50%
of employees from its payroll [... which is the] subject of this international proceeding;”
110
“and [due to] the subsequent impossibility of finding another job because of the fact
that their average age was over 45 years old.” The representative indicated that,
“[s]adly, there is no concrete evidence of [these] acts of violation,” but [...] it is not a
massive coincidence” that the workers who sued SEDAPAL have been affected by the
alleged acts of retaliation and that, in this sense, “the legal presumption that [these
acts] have been committed by the company is submitted.”
122. In this regard, this Tribunal has established that reparations must have a causal
link to the facts of the case, the violations declared and the damage attributed to those
violations, as well as to the measures requested in reparation of the corresponding
damages (supra para. 87). Therefore, the Court must examine that concurrence in order
to duly rule in keeping with the law.111 In this case, the Tribunal did not analyze State
responsibility for the alleged freezing of salaries, the alleged improper placement of
employment subcategories or the alleged arbitrary dismissals of some of the victims
given that these facts do not form part of the factual context of the application (supra
para. 51). For this reason, it cannot order measures intended to provided reparations
for damages related to those alleged situations. The Court also observes that the
representative did not specify the particular facts linked to the alleged incidents, nor
their connection as retaliation for the challenge of the retroactive application of Law
Decree 25876 and the later withdrawal of some of the victims from the judicial
proceeding. In addition, these incidents require a specific exhaustion of domestic
109
According to the representative, the first act of retaliation consisted of “the expediting of Decree Law
No. 25876, [which] constituted an initial and immediate State act of retaliation to the writ of amparo granted
to the victims, given that Law Decree 25876 was expedited for this specific SEDAPAL case. It is on the record
in the text of the decree itself that it directly involves the suspension of court rulings and systems whose effect
is the indexation of base salaries, elements corresponding specifically to the salary scale system. Thus it is on
the record and found in the seventh clause of the Certification of Agreements in the Extrajudicial Negotiation
that was filed in Annex No. 14 of the documents in evidence of our brief of pleadings, motions, and evidence.
In that clause, SEDAPAL announces, with extraordinary premonitory power, in the month of June 1992 that
Law Decree No. 25876 will be issued. That issuing took place in the month of November of that year.” (case
file on the Merits, tome II, folio 621).
110
Among the victims that filed sworn statements in the present case, the following fourty-two (42)
persons affirmed that they had been laid off as a consequence of the legal proceedings they formed a part of:
1. Luis Humberto Tori Gentille; 2. Jorge Enrique García Carmen; 3. César A. Lazcano Carreño; 4. Stanchi
Vargas Julio; 5. Leopoldo Alfonso Jáuregui Pereyra; 6. Wuile Héctor Portillo Silva; 7. Roberto Rojas
Bustamante; 8. Francisco Oswaldo Levano Valenzuela; 9. Felix Isaías Cotito Arias; 10. Juan Manuel Espinoza
Yarleque; 11. Rosa Elizabeth Aspillaga Benavides; 12. Félix Alejandro Trigoso Granados; 13. Roberto Hall
Arias; 14. Fulgencio Honorato Peña Ricse; 15. Juan Faustino Salcedo Artica; 16. Pedro Amador Dueñas Toledo;
17. Guido Estuardo Velásquez Quipuzco; 18. Toche Lora José Miguel; 19. Juana Luz Rodríguez Puell; 20.
Rosalinda del Rosario Ortega Sánchez; 21. Oscar Abraham Miñano Zevallos; 22. Jaime Leopoldo Caceres
Rivera; 23. Betty Ríos Cobos; 24. Víctor Manuel Jesús Rodríguez Gonzales Zúñiga; 25. Eduardo Ricardo Timana
Carcovich; 26. Oscar Eduardo Moreno Hernandez; 27. Rigoberto René Carranza Chávez; 28. Víctor Manuel
Grandez Rojas; 29. Arnulfo Gómez Villasante; 30. Nesse Ysabel Pizarro Pecho; 31. Daniel F. Quinto Patiño; 32.
Ebel Salas Flores; 33. Martha Luz Jesús Aranguren Carbajal; 34. Eleuterio Carranza Ruiz; 35. Feliz Meza
Santillana; 36. Francisco Caracciolo Rojas Espinoza; 37. Marco Aurelio Benavides Galvez; 38. José Antonio
Clavo Delgado; 39. Humberto Chilet Pichilingue; 40. Raúl Orestes Rodríguez Ríos; 41. Víctor Romero Castro,
and 42. Alfonso Eduardo Escobar Zamalloa.
111
Cf. Case of Ticona Estrada et al. v. Bolivia, Merits, Reparations and Costs. Judgment of November 27,
2008. Serie C No. 191, para. 110; Case of Gomes Lund et al (Guerrilha do Araguaia), supra note 17, para.
246, and Case of Cabrera García and Montiel Flores, supra note 17, para. 209.