and damage to family assets. Although, through its case law, the Court has used diverse
criteria to calculate loss of earnings, it has also made it clear that, in order to establish the
compensation, “international courts usually use the principle of fairness, according to the
circumstances of the specific case, and thus order reasonable compensation for the damage
caused; in general, they do not base this on invariable, rigid formulas.” 19 In Velásquez
Rodríguez v. Honduras it even indicated that, if the compensation for loss of income was
received by the victim’s next of kin “[i]t is not correct […] to adhere to rigid criteria, […],
but rather to arrive at a prudent estimate of the damage, given the circumstances of each
case.” 20 It should be noted that in order to establish the compensation corresponding to loss
of income, although the Court takes into account certain criteria and the evidence provided,
on repeated occasions it has been establishing the amounts, “in fairness” 21; in other words,
without using a rigid criteria applicable to all cases and, in certain cases, it has even decided
to distribute the amounts established in keeping with the inheritance law in force in the
country where the facts occurred. 22
III.
Verification that domestic compensation conforms to the international
obligation to make reparation
23.
At times, such as in the instant case, when establishing reparations in the
international sphere, the Court may face the situation in which the domestic jurisdiction has
ordered compensatory damages for the harm derived from the State’s responsibility. In the
instant case, the administrative proceedings established the responsibility of the State and,
based on the criteria established in the domestic jurisdiction, “Olga Navia Soto was awarded
the sum of 910,308,742.00 Colombian 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
19
Juan Humberto Sánchez v. Honduras. Interpretation of the judgment on preliminary objection, merits and
reparations. Judgment of November 26, 2003. Series C No. 102, para. 56. In this case, the State had argued that the
Court’s judgment that ordered the reparations was not clear as regards the procedure used to determine the amounts of
the compensation for pecuniary and non-pecuniary damage, because “it has not established a formula for this” (para.
50.b).
20
Velásquez Rodríguez v. Honduras. Reparations and costs. Judgment of July 21, 1989. Series C No. 7, para. 48.
21
Cf., inter alia, Radilla Pacheco v. Mexico. Preliminary objections, merits, reparations and costs. Judgment of
November 23, 2009. Series C No. 209, para. 365; Usón Ramírez v. Venezuela. Preliminary objection, merits, reparations
and costs. Judgment of November 20, 2009. Series C No. 207, para. 180; González et al. (“Campo Algodonero”) v. Mexico.
Preliminary objection, merits, reparations and costs. Judgment of November 16, 2009. Series C No. 205, para. 577, and
Anzualdo Castro v. Peru. Preliminary objection, merits, reparations and costs. Judgment of September 22, 2009. Series C
No. 202, para. 214.
22
González et al. (“Campo Algodonero”) v. Mexico. Preliminary objection, merits, reparations and costs. Judgment
of November 16, 2009. Series C No. 205, para. 578.
6
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