35
standard of non-pecuniary damage as a violation to private property and due process, as this
would delegitimize international justice and would seriously damage the credibility of the InterAmerican system.”
108. The Commission considered that the non-pecuniary damage is evident, since the victim
has been appealing to the State for more than “sixteen” years without obtaining a final
resolution until now.
109. The Court observes that Mrs. Salvador Chiriboga stated at the public hearing that the
facts of the case have had a very strong impact on her, which has affected her health.154
Likewise, Susana Salvador Chiriboga, in her statement rendered before a public notary, stated
that “[her] mother has preferred to continue with the claims, despite her health, so that justice
can be served.”155 On her part, the witness Guadalupe Jessica Salvador Chiriboga emphasized
the fact that her mother has had to overcome heavy emotional pressure, which has affected
her health.156
110. Regarding the aforementioned, the State indicated that Mrs. Guadalupe Jessica
Salvador Chiriboga “mentioned emotional aspects that deserve respect, but that are not
relevant for the effects of this case, and the same thing has occurred with the other family
members that have offered their statements as if it were a family of limited resources and
whose health has deteriorated as a consequence of the municipal action, which is very far from
the truth.”
111. The Court reintroduces that stated in the Judgment on the Merits,157 in the sense that
Mrs. Salvador Chiriboga is in a state of juridical uncertainty as a result of the delay in the
proceedings, since she has not been able to effectively exercise her right to property, since it
has been occupied by the Municipality of Quito for more than a decade, without a decision
being reached regarding who is the rightful owner of the property. A denial of justice has
occurred since a final judgment determining the amount of the just compensation for the
property has not been reached, which has resulted in an ineffective and arbitrary expropriation
proceeding. Said situation persists today and has caused a disproportionate burden in
detriment of the victim and in detriment of the just balance.158
112. This Tribunal’s jurisprudence has repeatedly stated that a judgment constitutes per se a
form of reparation.159 However, in consideration of that stated, the circumstances of the case
sub judice, and of the violation declared in the Judgment on the Merits of Articles 21(2), 8(1),
and 25(1) of the Convention in detriment of the victim, this Court considers it appropriate to
154
Cf. Statement of María Salvador Chiriboga rendered in the public hearing held on October 19, 2007 in the
city of Bogota, Colombia.
155
Cf. Statement of Susana Salvador Chiriboga rendered before a public notary on October 1, 2007 (case file of
Preliminary Objection and Merits, tome IV, f. 494).
156
Cf. Statement of Guadalupe Jessica Salvador Chiriboga rendered before a public notary on October 1, 2007
(case file of Merits, tome IV, folio 479).
157
158
Cf. Case of Salvador Chiriboga V. Ecuador, supra note 24, paras. 111 to 113.
As was indicated in paragraph 76 of the present Judgment, by limiting the right to private property, the State
shall fulfill with the objective of achieving a just equilibrium in between the public interest and the owners interest, so
that in the present case the State should have used the least burdensome means to reduce the detriment of the right
to private property of the victim.
159
Cf. Case of Suárez Rosero V. Ecuador. Reparations and Costs. Judgment of January 20, 1999. Series C No.
44, para. 72; Case of Gomes Lund et al. (“Guerrilha do Araguaia”) V. Brazil, supra note 8, para. 310, and Case of
Cabrera García and Montiel Flores V. México, supra note 8, para. 260.