DISSENTING OPINION OF
JUDGE ORIHUELA-IBERICO
I
…
II
1.
Regarding my dissenting opinion on the judgment of September 19, 1996 on
Reparations in the Neira Alegría et al. case, which concerns the first point of its operative
part, I must say that my opinion merely questions the amount of the indemnity of
US$154,040.74 to the next of kin of the victims in the instant case. The purpose of this
judgment must be to establish the amount of an indemnity already ordered by the judgment
on the merits of January 19, 1995.
2.
Paragraph 42 of the judgment on reparations states that “[a]lthough no proof of the
amount of the expenditures has been submitted, the Court deems it fair to award each of
the deceased victims' next of kin an indemnity in the amount of US$2,000.00 as
compensation for the expenditures incurred in their various petitions before the national
authorities.”
3.
As regards moral damages, although in paragraph 56 of this judgment, the Court
declares that “a condemnatory judgment constitutes per se adequate reparation for moral
damages, as amply demonstrated by the jurisprudence of, among others, the European
Court of Human Rights ...,” it adds, “However, it is the Court's opinion that although a
condemnatory judgment may in itself constitute a form of reparation and moral satisfaction,
whether or not there has been recognition on the part of the State, it would not suffice in
the instant case, owing to the particular seriousness of the violation of the right to life and
of the moral suffering inflicted on the victims and their families, which deserve to be paid
fair compensation.” Paragraph 58 of the judgment states that “[i]n the light of the
foregoing, the Court, taking all the special circumstances of the case into account, concludes
that it is fair and just to award an indemnity of US$20,000.00 to each of the families of the
deceased and to each of the survivors.”
4.
The reasons for my opinion with regard to paragraphs 2 and 3 above can be
expressed together, since both those paragraphs are founded on the Court's decisions for
reasons of equity. This is a subjective matter with which I am not in agreement, believing
as I do that those amounts could have been determined in the light of the actual economic
situation prevailing in the country. This situation is revealed in the evidence presented by
the Government of Peru, which attests to the acute inflation during the years in which the El
Frontón incidents took place and those that followed.