persons who had already obtained reparation or who had not obtained reparation appeared
to be based only on the reparations obtained at the domestic level due to the violation of
the rights to life and to personal integrity, the Commission indicated that, “[f]rom the
analysis of paragraphs 334 to 338, it was unclear whether the […] Court understood that
the pecuniary reparations granted at the domestic level were sufficient to make reparation
also for the pecuniary and non-pecuniary damage arising from other violations declared in
the Judgment to the detriment of some of these same persons, such as the violations of the
rights to property and to freedom of movement and residence.”
26.
The State indicated that “the request in reference seeks to contest the judgment that
has been handed down by the Inter-American Court. When the petitioners argue that no
compensation has been awarded for the violation of the right to property, they are not
referring to a problem of interpretation. And this is because they argue the existence of a
supposed error in the decision and seek to have it amended in accordance with their own
arguments.” In addition, the State reiterated that “the mechanism contemplated in
paragraph 337 of the Judgment was expressly established by the Court […] in relation to
the declared violations to the rights to life and integrity of the group of persons included in
the text” and that, therefore, “it cannot be extended to the declared violation of the right to
property.”
Considerations of the Court
27.
Regarding this point, the Court observes that paragraph 282 of the Judgment
indicates that:
“[S]ince it is evident that the damage produced by the launching of a cluster bomb in Santo
Domingo can be attributed to the Colombian Air Force, the Court finds that the State is responsible
for the violation of Article 21 of the Convention in relation to 1(1) of this instrument, to the
detriment of the owners of the stores and dwellings affected, namely: Mario Galvis, Víctor Palomino,
Margarita Tilano, María Cenobia Panqueva and Olimpo Cárdenas.”14
28.
Furthermore, with regard to paragraph 337 of the Judgment, the Court notes that
the victims of violations of the right to property – with the exception of María Cenobia
Panqueva who could have recourse in her capacity as injured victim – are not included in
any of the three groups of victims who meet requirements to access the domestic
mechanism established in this paragraph (supra para. 19).
29.
According to the evidence file, Mario Galvis, Víctor Palomino, María Cenobia
Panqueva and Margarita Tilano Yanez (wife of Olimpo Cárdenas Castañeda, also declared
victim of a violation of the right to property in the Judgment) had recourse to the
contentious-administrative jurisdiction and requested reparation for the violations of the
right to property they suffered as a result of the events of December 13, 1997. However,
they were not granted pecuniary reparation by this contentious-administrative
mechanism.15 In addition, the representatives did not file requests for compensation before
14
Case of the Massacre of Santo Domingo v. Colombia, para. 282.
15
In the case of Mario Galvis, it was decided that there was no evidence of the pre-existence of the
commercial establishment, Judgment of the Contentious-Administrative Court of Arauca, Judge Wilson Arcila
Arango. May 22, 2004 (evidence file, tome 20, folio 10240). In the case of Víctor Julio Palomino, it was indicated
that his ownership of the vehicle whose destruction was claimed had not been proved. Judgment of the
Contentious-Administrative Court of Arauca, Judge Wilson Arcila Arango. May 22, 2004 (evidence file, tome 20,
folio 10256). In the cases of María Cenovia Panqueva, and of Margarita Tilano Yañez and her husband Olimpo
Cárdenas Castañeda, there is no specific reference to motives. Cf. Judgment of the Contentious-Administrative
Court of Arauca, Judge Wilson Arcila Arango. May 22, 2004 (evidence file, tome 20, folio); Judgment of the
Contentious-Administrative Court of Arauca, Judge Wilson Arcila Arango. May 22, 2004 (evidence file, tome 20,
folios 10240, 10253, 10256 to 10260).
8