28
the parties out, and the failure to reach an agreement.93
99.
Before the Court, the representative and the State have submitted expert witness
reports calculating the pecuniary damages that the victims should receive.94 The Tribunal
observes that that calculation involves a certain degree of complexity, taking into
account that it is not possible to carry out a general calculation that would be applicable
to all the workers. On the contrary, each of the expert witness reports prepared a caseby-case calculation. Despite this complexity and taking into account that approximately
18 years have passed without the victims having access to domestic courts for
determining the indemnity they are owed, the Court will weigh the evidence available in
the case file and rule on the dispute between the parties over the criteria used to
calculate the amount in question.
100. To start with, the Tribunal recalls that the expert witness reports intended to
quantify the scope of the damages caused by the human rights violation must include an
argumentative structure that allows the Tribunal to understand them and weigh them
along with the rest of the body of evidence, in keeping with the rules of sound judgment.
This is even more relevant when the expert witness reports resort to technical expertise
beyond that of the Court,95as in this case.
101. In this regard, the Court notes that both expert reports indicate various standards
considered at the time the calculations on the scope of pecuniary damages were
effectuated in this case. Taking this into account, the expert witness report submitted by
the representative takes into consideration dates, standards and categories, as well as
several elements and criteria96 to make the calculation through 2010. For its part, the
93
The formation of the commission was established through Supreme Resolution No. 226-2009-PCM of
September 2, 2009. According to the resolution forming the high-level Commission, once SEDAPAL presented
a series of documents and the petitioners presented evidence to be considered (optional), the Commission
would have 20 working days to evaluate the documentation. Where necessary, the high-level Commission
could summon the parties. Once this time period was up, the members of the Union could request a chance to
speak. Once these steps have been taken, the high-level Commission would have 20 working days (no
deadline extensions permitted) to prepare a final report that must be submitted to the President of the State
Legal Defense Council. This report would issue a ruling with regard to the reach of the IACHR recommendation
as well as the mechanisms for implementing it. The high-level Commission had a maximum operational time
period of 90 days from September 11, 2009, the date on which the high-level Commission was launched.
Supreme Order N° 226-2009-PCM of September 2, 2009 (case file of the answer to the application, tome IX,
annex 6, folios 2486 to 2489). In its Reports of September 11 and October 7, 2009, before the Inter-American
Commission, the State indicated that the Commission “and had sessioned four times, once in the presence of
the SEDAPAL and approximately 120 victims (out of a total of 233). However, on January 11, 2010, the State
reported on the internal negotiations that “failed at the domestic level.” The State indicated “that the high-level
Commission held 13 closed-door sessions and two sessions attended by the petitioners and the SEDAPAL. It
highlighted that the Commission ‘[gave] the petitioners access to an appropriate and effective remedy that was
able to provide reparations for the violation of their rights due to the application of law 25876 and for the
denial of judicial protection in response to the complaint submitted.’” The State noted that the representative
had said “that the current amount they are requesting for reparations is equivalent to 17 million dollars.” The
State added that “the extreme difference between the positions of the parties, who will not budge in their
demands (...) explains the Commission’s failure.” Finally, the State indicated that the “Special State’s
Attorney’s Office attempted to broker a rapprochement; however that was not possible either for the same
reasons.” (case file on the Merits, tome I, folio 9).
94
Cf. Expert witness report presented by Felix D. Aquije Soler supra note 29, folios 2568 a 2668 and
Expert report of Mrs. Lily Isabel Albornoz Castro, supra note 40, folios 1622 a 1627.
95
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador.
Preliminary Objections, Merits,
Reparations and Costs. Judgment of November 21, 2007. Series C No. 170, para. 230.
96
Pursuant to the text of the cited expert report, “the elements of judgment” used to calculate are:
“date of hire,” “date of dismissal or resignation (for those no longer working there), “salary group,” “category,”
“salary scale,” “raise in unskilled laborer remuneration, July 1992 S/. 70.00,” “base worker remuneration
through November 1992,” and “base worker remuneration through December 1992.” , annex 1, folios 1900 to
folio 2440). Expert report of Mrs. Lily Isabel Albornoz Castro, supra note 40, folio 1626. The expert witness
report submitted by the representative does not provide an exhaustive explanation of the formula used for
calculating the sums that it offers, for which reason it is not possible to repeat the calculations in such a way as
to arrive at the same conclusions. However, from the tables provided in the case file, the Court notes that the