36
remedies112 and other kinds of evidence that are not found in the case file of this case.
c.2.3 The alleged “reckless conduct” of the State on not reaching an agreement
in the friendly settlement process and for questioning the reparatory
amounts proposed by the representative
123. On the other hand, the representative also indicated that “the reckless conduct of
the State and SEDAPAL [on] having given the victims false hope of a friendly settlement
that was never delivered and an implementation [...] that was never fulfilled.” In
addition, for the representative, that reckless conduct by the State and the company are
evidence that “far from expressing a sentiment of repentance and desire for amendment
with regard to the violations perpetrated, [...], they question the reparation of pecuniary
and non-pecuniary damages in an attempt to reduce them to a minimum.”
124. On this point, the Tribunal finds it necessary to recall that the friendly settlement
proceeding before the Inter-American Commission does not require any of the parties to
reach an agreement. In this sense, the Rules of Procedure of the Commission itself
include the possibility that one of the parties might not offer their consent to a potential
agreement and establishes the continuation of the case as part of the proceeding. 113
Thus the fact that an agreement has not been reached in the context of a friendly
settlement proceeding in this case is not any sort of violation of the American
Convention, and in that sense it does not imply any obligation to provide reparations on
the part of the State. The Tribunal recalls that not all positions taken within the context
of a proceeding before the Commission automatically generate acknowledgment of facts
or responsibility, or the assumption of corresponding obligations.
125. The Court also notes that the questioning of the amounts requested for pecuniary
and non-pecuniary damages is related to the adversarial principle and does not
constitute an autonomous violation that would establish an obligation for the State to
provide reparations for the victims, nor is it a factor to be taken into account in
establishing the amount of non-pecuniary damages in this case.
c.2.4
The alleged effects on victims’ life plans
126. Finally, the representative alleged that the life plans of the victims had been
affected, indicating that, “at issue is not only the damage that could be caused by the
deduction of 20% of monthly remunerations. Adding up the damages suffered we have
25% less in the monthly salary as a result of the omission of a raise in remunerations as
of July 1992, plus the 20% decrease in the monthly salary starting in the month of
December 1992, plus the 20% deduction in the monthly salary starting in March 1993
for [recovering] the - according to the State - improper payments made between
January and November of 1992. We have a total of 65% of the monthly salary that the
workers/victims were not receiving. If one adds taxes of 20%, we have a grand total of
85% of the [v]ictims [r]emunerations that have been affected. For the representative,
112
In this regard, and in a similar sense, in its Admisssibility and Merits Report the Inter-American
Commission noted that “in regard to the alleged arbitrary laying off of Mr. Luis Humberto Tori Gentille, the
IACHR noted that the information provided by the parties up until the date of approvel of the present Report,
the result is that the legal proceeding is in process before the 34th Civil Court of Lima. Therefore, the IACHR
considers that the domestic remedies have not been exahusted to which it must dem this argument
inadmissible.” Report N° 8/09 of March 17, 2009, supra note 3, folio 12.
113
Therefore, Article 40 fo the Rules of Procedure of the Inter-American Commision on Human Rights
stated that: “[t]he friendly settlement procedure shall be initiated and continue on the basis of the consent of
the parties.” Likewise, it notes that “[t]he Commission may terminate its intervention in the friendly settlement
procedure if it finds that the matter is not susceptible to such a resolution or any of the parties does not
consent to its application, decides not to continue it, or does not display the willingness to reach a friendly
settlement based on the respect for human rights”. Therefore, “[i]f no friendly settlement is reached, the
Commission shall continue to process the petition or case.”