7
pesos as compensation for “loss of potential earnings”; this was equivalent to
approximately US$388,500.00 at the exchange rate in force when the judgment was
delivered.” (para. 245). This sum was awarded to the deceased victim’s common-law
wife considering that she was the only persons who depended on the victim financially.
24.
The Inter-American Court cannot bypass or ignore the measures taken by the
State organs to comply with their obligation to make reparation. It is for the Court, in
the exercise of its jurisdiction, to ensure, at the international level, that the measures
taken by the State at the national level as regards reparation are in keeping with its
international obligations. This means that the Court must make assessments such as:
verifying whether the State compensated all aspects of the damage declared by the
Court (supra para. 22), so that, if any aspect was not included among those that the
State compensated, it would correspond to the Inter-American Court, as a subsidiary
organ, to establish compensation for this element; establishing whether the State
made its decision based on objective and reasonable criteria, and whether the said
reparation was effective to achieve the purpose sought by compensation, which is to
make financial reparation for the situation and the expenses arising from the violation,
and to re-establish for those affected the situation or status they would have enjoyed
in the absence of that damage or injury,23 and that would have allowed them to pursue
their projects and goals.
25.
Although Article 63(1) of the Convention does not condition the reparations
established by the Court to the instruments of reparation that exist under the domestic
laws of the State Party responsible for the violation, in application of the principle of
subsidiarity, it is advisable that, when deciding whether or not to establish
compensation to make reparation for a specific pecuniary damage, the Court assesses
whether the State has already made reparation for this damage, in light of the
American Convention and the principles of international law applicable to the matter.
26.
In addition to the above, when examining the reparation awarded at the
domestic level the Court must verify whether the State has complied with its obligation
under the Convention to establish in its domestic law an effective remedy to repair
human rights violations, to be implemented using proceedings that respect the rights
and guarantees established in Articles 8 and 25 of the American Convention. These
considerations are limited to examining the effectiveness of the remedy created to
make reparation for the pecuniary damage.
27.
In the instant case, the Colombian Council of State, the highest organ of the
administrative-law jurisdiction of that country made the final determination of the
compensation for loss of earnings based on explicit, clear, objective and reasonable
criteria that sought to compensate the damage suffered. The way in which the Council
of State calculated the loss of potential income differed from the way that the Court
usually calculates it; nevertheless, the criteria used by this State organ was not
contrary to the essential criteria intended to establish fair compensation for the
financial damage caused to those who would have benefited directly from the income
that the victim would have perceived. The decision adopted by the domestic courts was
not arbitrary, but was founded on objective standards, which were known previously at
the domestic level. Consequently, the Court cannot and must not disregard this
domestic decision.
23
SHELTON, Dinah, Remedies in International Human Rights Law, op. cit., p. 22.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents