CONCURRENT OPINION OF JUDGE MONTIEL ARGÜELLO
01.
I gave my affirmative vote to the resolutions of the previous Judgment on the
Interpretation of Judgment of March 1, of this year, in the Case of the
Serrano Cruz Sisters vs. El Salvador. The request for interpretation lodged by
El Salvador refers to three issues:
a)
b)
c)
The awarding of compensation for non pecuniary damages in favor of
Mrs. María Victoria Franco who was deceased;
The assignment of the compensation amount to her children; and
The relation between the compensation amounts and the damage
caused.
2.
With respect to the first two issues, the State agent pointed out that in
paragraph 13 of my Dissenting Opinion in the previously mentioned Judgment
I had stated, “I deem that the right to claim compensation for non pecuniary
damages is not assignable to the heirs...”. That opinion is based on the fact,
that to my judgment, the referred right is very personal in such a way that it
cannot be assigned or seized by a creditor.
3.
The thesis of the Court opposed that of the State, and awarded the
compensation to Mrs. María Victoria Franco and, consequently the request of
the agent of El Salvador is not for an interpretation of the Judgment but
rather to appeal the same, which is inadmissible.
4.
With regard to the awarding of the aforementioned compensation on behalf of
the children of the deceased mother, the Judgment refers to all of them,
including Ernestina and Erlinda; therefore it is deemed fit to precise the scope
of this provision.
5.
Finally, concerning the third issue, about the request for interpretation, the
petitioner points out that the Court recognizes that since it does not have
competence on the alleged forced disappearance of the Serrano Cruz sisters it
cannot presume, as in other cases, that a violation to the right to life was
committed, and the request also quotes paragraph 13 of my Dissenting
Opinion, which states that in the instant case there has not been a violation of
any right under the jurisdiction of the Court.
6.
The Court did not endorse my thesis and decided that there had been a
violation to the rights enshrined in articles 5, 8(1) and 25 of the American
Convention on Human Rights. The decision of the Court regarding the
existence of the violation and the amount of the compensation as reparation
may not be considered a matter for interpretation inasmuch as it is clear, and
consequently, the request is inadmissible.