19
I am not affirming this at the present time – that this destination is more in keeping
with the general regime of reparations and the protection of human rights than the
simple return to the State of an amount that for a long time has been excluded,
owing to the judgment, from regular public expenditure and was attributed, by the
judgment, to a purpose linked to the protection of those rights.
72.
It will also be interesting to examine some implications of the system of
reparations in favor of the victims, since they should be able to enjoy the rights
resulting from the unlawful act in the best conditions.
In this respect, it is
interesting to recall that the inter-American jurisdiction is complementary to the
domestic jurisdiction, and only supplements it when the latter does not protect
internationally recognized rights effectively.
In other words, this jurisdiction
intervenes to satisfy the right of individuals – among other related purposes of the
greatest transcendence that I will not attempt to examine now – and should not, in
any way, signify a reduction in the terms of the subjective rights and their
substantive consequences. This idea is included in the norms of interpretation
contained in Article 29 of the Convention. It may be seen, in particular, in
subparagraph (b) of this article, which prohibits any interpretation of the Pact of San
José that “restrict[s] the enjoyment or exercise of any right or freedom recognized by
virtue of the laws of any State Party or by virtue of another convention to which one
of the said States is a party.”
73.
In several judgments, the Inter-American Court has referred to national
legislation and/or instances of domestic law in order to quantify the financial
consequences of the violation committed. Obviously, in these cases, the Court has
abstained from formulating a guilty verdict, leaving it to the domestic system to
adopt the relevant consequences of the violation committed. To the contrary, it has
established the guilty verdict clearly, when this has been pertinent, as corresponds to
its jurisdictional obligation. Nevertheless, at the same time, it has recognized that
some aspects of that decision may be defined more adequately under national law
and by the domestic authorities, as has occurred in cases that involve labor
compensation, commercial calculations, determination of possession or ownership,
etc., although this obviously does not imply leaving the definition of essential points
of the guilty verdict in the hands of third parties or waiving the authority to monitor
compliance with its decisions, which is inherent to its jurisdictional mandate and
without which it could not comply with the attributes and obligations assigned to it in
Articles 33.b), 62(1), 63(1) and 65 of the Convention.
74.
In other words, there are considerations of a practical nature, and even of
fairness, that justify the possible and appropriate referral of certain aspects to
domestic norms and instances, so that they may be implemented within the
framework of the declaration of the guilty verdict previously formulated by the
international Court. In this respect, the objective application of domestic law could
possible improve the victim’s situation as regards pecuniary issues. In this case, is it
pertinent that the international judgment should obstruct the injured party’s
possibility of obtaining a more favorable result before domestic legal proceedings, if
this is possible under national norms? If the answer to this question is negative,
could it then be understood that the Court’s decision constitutes a “base” or
“minimum limit” of compensation, which could be improved before the domestic
instances, when there are grounds in domestic law to achieve this advantage? Is it
not possible that the non-pecuniary reparations ordered by the Court may be
expanded and improved when the State, by mutual agreement with the beneficiaries
– and even without this agreement – determines this expansion or improvement? If
so, why cannot the pecuniary reparations also be expanded and improved, should