33
besides the price determined either conventionally or judicially, the owner will be paid a five
per cent as the affectation price.
96.
On the other hand, it is also important to mention that the Ecuadorian Civil Code in
force, approved on July 12, 2005, in Articles 1573 and 1575150 establishes rules on the
compensation for damages due to default and, if the obligation consists in paying an amount of
money, it provides guidelines for the charging of interests. The aforementioned indicates that,
according to Ecuador’s domestic legislation, it is possible to determine interests based on the
non-compliance of obligations.
97.
In the present case, the State should have, as stated in Article 21 of the Convention,
paid the just compensation, and it should have done so promptly, as indicated in the Judgment
on the Merits. However, this did not happen, and it resulted in the violation of Articles 21(2),
8(1), and 25(1) of the Convention. It is the State’s duty to respect and guarantee the
protection of the right to private property, which in the case sub judice has been examined by
the Court from the perspective of a human right, in light of the object and purpose of the
American Convention, and not in consideration of commercial or investment interests which
are characteristic of courts of another nature.
98.
The representatives argued the Libor rate for the estimation of the interests and the
State did not specifically object the use of this rate as a reference. In seeking to satisfy the
purpose of complying with a just compensation and the payment of the corresponding
interests, it is necessary to determine the latter, in order to avoid having to submit
determination to another domestic process that would delay payment. Given the
aforementioned and since there is no controversy between the parties in the application of said
rate, as well as because of the fact that it is considered reasonable for the specific case, this
Court considers it appropriate to apply to the present case the Libor rate for the estimation of
the respective interests. Additionally, this Tribunal determines that a compound interest is
inapplicable, due to the nature of the present case.
99.
As a consequence, the Court establishes that the interest that must be covered due to
the lack of a timely payment by the State must be estimated based on a simple interest rate,
applying the Libor rate as a reference and on the amount of the just compensation set by this
Tribunal (supra para. 84).
100. Now, in what refers to the date as of which the interests should be computed, the
representatives and the State disagree in this matter (supra paras. 87 and 90). In this regard,
this Tribunal observes that in the present case, even though the declaration of public interest
is dated May 13, 1991, the dispossession of said property did not occur until the year 1997.
Likewise, the Court established in its Judgment on Merits that the occupation of Mrs. Salvador
Chiriboga’s property by the Municipality of Quito occurred between the 7th and 10th days of July
1997.151 Since it was as of that date that the victim actually lost the right to enjoy possession
intervals shall not exceed five years. The fees payable in installments compound legal interest. The price paid will be
exempt from all duties, taxes or other tax levies, municipal or any other.”
150
Corresponds to Articles 1600 and 1602 of the prior Civil Code, which was codified on November 20, 1970.
Article 1600 literally notes that “damages should be compensated since the debtor defaulted, or, if the obligation is to
not, from the time of the contravention.” Article 1602 states that “if the obligation is to pay an amount of money, the
compensation for damages for default is subject to the following norms: 1) the conventional interests are still owed, if
an interest superior to the legal interest is operational, or the legal interests are owed, in the contrary; keeping,
nevertheless, in force the special provisions that authorize the cost of current interests, in some cases; 2.) The
creditor does not need to justify when only interests are collected. In such cases, the delay suffices, 3.) the interest in
arrears do not generate interests, and 4.) This rule applies to all kinds of rents, royalties, and periodic pensions.”
151
Cf. Case of Salvador Chiriboga V. Ecuador, supra note 24, para. 72.