impartiality should be respected by the judicial authorities ex officio. Therefore, any judge
whose impartiality could be legitimately and objectively called into question, should
disqualify himself from participating in adopting the decision261. Accordingly, Mr. Lillo should
not have participated in the decision of November 24, 2003, after having conducted the
extraordinary visit in the context of the disciplinary investigation. Nevertheless, the Court
finds that immediately after this ruling the Court of Appeals of Temuco endorsed the
considerations of the first instance judge and rendered without effect the injunction262.
VII
REPARATIONS
(APPLICATION OF ARTICLE 63.1 OF THE AMERICAN CONVENTION)
239. Based on the provisions of Article 63.1 of the American Convention263, the Court has
indicated that any violation of an international obligation that has caused damage entails
the duty to provide adequate reparation264, and that this provision reflects a customary
norm that constitutes one of the fundamental principles of contemporary International Law
on State responsibility265.
240. The State argued that this case “has not entailed a violation of the human rights of
Ms. Karen Atala’s or those of her three daughters.” However, taking into account the
violations of the American Convention declared in the preceding chapters, the Court will
now consider the requests for reparations made by the Commission and the
representatives, as well as the State’s observations thereof, in light of the criteria embodied
in the Court’s case law regarding the nature and scope of the obligation to make
reparations, in order to adopt the measures to required to redress the damage to the
victims.
241. The reparation of damage caused by a breach of an international obligation requires,
wherever possible, full restitution (restitutio in integrum), which consists of reinstating the
situation prior to the violation. Where this is not feasible, as happens in the majority of
cases involving human rights violations, the Court shall decide measures to guarantee the
infringed rights, repair the damage caused by the violations and establish an amount in
compensation to make good on the damage caused266. Therefore, the Court has considered
the need to order several measures of reparation in order to fully redress the damage
261
Cf. ECHR, Case of Micallef v. Malta, (No. 17056/06), G.C., Judgment of October 15, 2009, para. 98 (“What
is at stake is the confidence which the courts in a democratic society must inspire in the public. Thus, any judge in
respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw”); ECHR, Case Castillo
Algar v. Spain, (No. 28194/95 ), Judgment of October 8, 1998, para. 45.
262
Judgment of The Court of Appeals of Temuco of March 30, 2004 (record of appendices to the petition,
volume V, page 2643).
263
Article 63 provides: 1. If the Court finds that there has been a violation of a right or freedom protected by
this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that
was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted
the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.
264
Cf. Case of Velásquez Rodríguez v. Honduras. Reparations and Costs. Judgment of July 21, 1989. Series C
No. 7, para. 25; Case of Fontevecchia and D`Amico, supra note 28, para. 97.
265
Cf. Case of Castillo Páez v. Peru. Reparations and Costs. Judgment of November 27, 1998. Series C No.
43, para. 50 and Case of Fontevecchia and D`Amico, supra note 28, para. 97.
266
Cf. Case of Velásquez Rodríguez v. Honduras. supra nota ¡Error! Marcador no definido., para. 26 and
Case of Fontevecchia and D`Amico, supra note 28, para. 98.
72