that “the permanent quest to obtain rehabilitation for his son Sebastián, his insistent
recourse to the organs of justice and administrative mechanisms to further the different
proceedings and accompany his son […] show the difficulties he faced in maintaining his
income at the level [it was] prior to Sebastián’s accident.” Given “the need to devote
himself exclusively to caring for his son and to the latter’s recovery, [which] necessarily
involved neglecting his work activities,” the representatives requested compensation for loss
of earnings of US$ 70,000 (seventy thousand United States dollars).
311.
The State requested that the Court “take into account international parameters and
standards set by [the Court’s] consistent case law and reject these excessive pecuniary
claims.” Regarding the claims for reparation in favor of Sebastián, it argued that “[this] item
was taken into account in the domestic Judgment” and that “future reparations should not
be base on consequences of the accident that have already been considered by the national
judicial system.” As regards Danilo Furlan, the State argued that “the amount claimed […]
exceeds the amounts established by this Court’s case law” and that “not even the minimal
supporting documentary or arithmetical evidence was provided to arrive at the figures
indicated.”
Considerations of the Court
312.
As the Court has previously indicated (supra paras. 197 to 203), given the delay in
the payment of compensation due to procedural delays, the Furlan family was unable to
afford the necessary medical treatment that could have provided Sebastián Furlan with an
improved quality of life. Expert witness Rodríguez indicated that, “if the suggested
treatment had been implemented, together with sustained neuro-cognitive therapy, it is
certain that, today, his functioning and quality of life would have been better.” 477
Consequently, the alleged harm in relation to loss of earnings suffered by Sebastián Furlan,
stemming from his inability to hold down a stable job owing to his mental disability which
was not treated adequately, bears a causal relationship to the violation of Articles 5, 8 and
25 of the Convention, given the delays in the administrative judicial proceedings, in the
execution of the judgment and the effects on his psychological well-being.
313.
The equity principle has been used in this Court’s case law to quantify nonpecuniary damage,478 and pecuniary damage,479 and to establish loss of earnings. 480
However, the use of this principle does not mean that the Court can act in a discretionary
manner when establishing the compensatory amounts. 481 It is up to the parties to clearly
prove the harm suffered as well as the specific relationship of the pecuniary claim to the
facts of the case and the alleged violations.
314.
Therefore, given the causal relationship between the violations found and the
damage alleged, and the fact that the case involves a person with disability, the Court,
having regard to the circumstances of this case, establishes in equity, the sum of US$
477
Cf. Affidavit rendered by Dr. Estela del Carmen Rodríguez on February 10, 2012 (Merits file, volume II,
page 763).
478
Cf. Case of Velásquez Rodríguez v. Honduras. Reparations and Costs, para. 27 and Case of the Indigenous
People of Sarayaku v. Ecuador, para. 314.
479
Cf. Case of Neira Alegría et al. v. Peru. Reparations and Costs, Judgment of September 19, 1996. Series C
No, para. 50 and Case of the Indigenous People of Sarayaku v. Ecuador, para. 314.
480
Cf. Case of Neira Alegría et al. v. Peru. Reparations and Costs, para. 50 and Case of the Indigenous People
of Sarayaku v. Ecuador, para. 314.
481
Cf. Case of Aloeboetoe et al. v. Suriname. Reparations and Costs, para. 87, and Case of the Indigenous
People of Sarayaku v. Ecuador, para. 314.
98
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