PARTIALLY DISSENTING OPINION OF JUDGE MANUEL E. VENTURA ROBLES
My partial dissent with regard to the fifteenth operative paragraph of this
judgment in Manuel Cepeda Vargas v. Colombia, “in relation to the determination of
compensation for loss of potential earnings,” refers specifically to the criterion adopted
by the majority of the judges of the Court when determining the amount for loss of
earnings, which assessed positively the relevant measures taken by the domestic
courts in the case sub judice and considered the amount calculated by these courts to
be reasonable in terms of the Court’s case law.
Textually, paragraph 246 of the judgment reads:
246.
The Court considers that, when national mechanisms exist to determine forms of
reparations, these procedures and results can be assessed (supra para. 139). If these
mechanisms do not satisfy criteria of objectivity, reasonableness and effectiveness to make
adequate reparation for the violations of rights recognized in the Convention that have
been declared by this Court, it is for the Court, in exercise of its subsidiary and
complementary competence, to order the pertinent reparations. In this regard, it has been
determined that the next of kin of Senator Cepeda Vargas had access to the administrative
courts, which established compensation for loss of potential earnings based on objective
and reasonable criteria. Consequently, the Court assesses positively the measures taken
by the domestic courts in this case,1 and finds that the amount established by these courts
is reasonable in terms of its case law.
This text, approved by the majority of the judges of the Court, adopted a
criterion that I do not share with regard to the subsidiary nature of the international
protection of human rights under the inter-American system, and to the nature of the
compulsory competence or jurisdiction of the Inter-American Court of Human Rights.
The principle of the complementary and subsidiary nature of the inter-American
system of human rights is established in the second paragraph of the Preamble of the
American Convention on Human Rights, which stipulates:
Recognizing that the essential rights of man are not derived from one's being a national of a
certain state, but are based upon attributes of the human personality, and that they therefore
justify international protection in the form of a convention reinforcing or complementing the
protection provided by the domestic law of the American States;
And Article 46(1)(a) of the said Convention which establishes that:
1.
Admission by the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 shall be subject to the following requirements:
(a) That the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law.
The Convention is frugal as regards the nature and functions of the Court’s
compulsory jurisdiction, but it is sufficiently clear in specifying the essential aspects.
Thus, Article 62(1) of the Convention establishes that:
1
Cf. La Rochela Massacre v. Colombia. Merits, reparations and costs. Judgment of May 11, 2007. Series C
No. 163, para. 245.
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