6
financial instrument such as a check, any financial institution in the system would
deduct 1% of its face value at the time the check is cashed. If, on the other hand,
payment were in cash, the 1% would still be deducted when the beneficiaries
credited it to an account or deposited it in an account with a financial institution.
26.
When the Court figured the compensatory damages in the instant case, it
factored in the material damages sustained by the victim and his next of kin. It
added a sum for moral damages as well, determined on the basis of equity. In the
case of Mr. Suárez Rosero, it added a sum for reimbursement of the costs resulting
from proceedings in domestic courts. The resulting amount constitutes the “fair
compensation” to which Article 63(1) of the Convention refers and must, therefore,
be delivered promptly and in full to the beneficiaries named by the Court.
27.
According to Mr. Suárez Rosero’s comments, financial institutions in Ecuador
automatically apply the deduction required by law to all monetary transactions,
which would be 1% of their total value.
Both Mr. Suárez Rosero and the
Commission proposed mechanisms to avoid application of the deduction to the
payments ordered. The former suggested that the State should order the financial
institutions in the system not to withhold that 1% of the payments. For its part,
the Commission proposed that any surcharge be paid by the State or its agents.
28.
The Court considers that no comment on the suggestions made by Mr.
Suárez Rosero and the Commission is in order. It must, however, underscore the
fact that the wording of the judgment makes it clear that the State has an
obligation to pay the amounts ordered and to do so in full. For this reason, it is
also incumbent upon the State to avail itself of whatever mechanisms will ensure
full, prompt and efficient compliance with its obligations, under the conditions and
within the time frame established in the judgment on reparations. Specifically, it
means taking the necessary measures to ensure that the legal deduction that
Ecuadorian financial institutions make on monetary transactions does not affect the
beneficiaries’ right to receive the full amount ordered for them.
29.
Once the beneficiaries have received full and effective payment of the fair
compensation they are due, that compensation will become part of their respective
assets. The use or administration of the compensation thereafter may be subject
to all applicable Ecuadorian tax laws.
30.
Therefore, the tax exemption on the payments the Court ordered for Mr.
Rafael Iván Suárez Rosero and Mrs. Margarita Ramadán de Suárez applies up to the
time they receive the full amount they are owed in the form of the compensatory
damages ordered in the second operative paragraph of the judgment on
reparations, under the conditions and within the time period established in
paragraphs 104, 105 and 108 to 111 of the judgment.
31.
Further clarification is needed in the case of Micaela Suárez Ramadán since,
being a minor, her interests are a matter of particular concern. In paragraph 107
of the judgment on reparations, the Court held that
[i]n the case of the indemnization ordered for the minor Suárez Ramadán, within six
months of the date of notification of [the] judgment, the State shall establish a trust
fund in a solvent and sound Ecuadorian financial institution, under the most favorable
terms allowed by law and in keeping with banking practices. The interest earned shall
be added to the principal, which will be turned over to Micaela Suárez Ramadán in full
when she achieves her majority.