(thirty-eight thousand, seven hundred and fifty-two dollars of the United States of
America); and
iii)
with respect to loss of future earnings, the representatives argued that Ms.
Atala could not adequately dispose of her property, located in the town of Villarrica,
due to the time she spent making regular visits. The representatives argued that the
victim was unable to rent her property or obtain any income from it, and considered
that the calculation of damages should be performed equitably. They proposed the
sum of $96,600 USD (ninety-six thousand, six hundred dollars of the United States
of America), basing the claim on the amount of the last payment Ms. Atala made on
her home and a document from the Central Bank of Chile stating the daily values of
the UF (Chilean readjustment unit), and considering that the payment is in most
cases equal to the income from the rental. The representatives also argued that “this
legitimate income [...] would have been produced had it not been for the arbitrary
decision of the Supreme Court which decided on the separation of her daughters.”
288. The State considered that, since no discriminatory act occurred, “the requested
indemnities are not appropriate.” The State also argued, based on Silva Mouta v. Portugal,
that “the European Court did not grant any compensation [since…] having declared the
existence of a violation [...] this constitute[d] in itself a just [reparation] for the damages
allege[d].”
Finally, the State noted that its officials attempted to reach an amicable
agreement “which did not materialize because of the large [...] amounts requested by the
alleged victim [that] did not correspond to the scale of the alleged damage.”
289.
In its case law, the Court has developed the concept of pecuniary compensation and
has held that this contemplates “the loss or decrease of the victims’ income, the expenses
incurred […] and the pecuniary consequences that are connected with the facts of the case”
296
.
290. Concerning the alleged loss of income caused to Ms. Atala due to her being unable to
rent out her home in Villarrica or obtain some other economic gain from it, given the need
to use it while visiting her daughters, the representatives based their claims on a chart from
June 2004 to December 2010, and from January 2011 to October 2017, when Ms. Atala’s
youngest daughter would no longer be a minor. The representatives estimated the lost
profits at $47,400 USD (equivalent to $23,700,000 Chilean pesos) for the first period and
$49,000 USD (equivalent to $24,600,000 Chilean pesos) for the second, for a total of US
$96,600. They indicated that the Court should use this chart as a guide for the fair
estimation of lost earnings.
291. The principle of equity has been used in the jurisprudence of this Court to quantify
non-pecuniary damages297, pecuniary damages298 and lost earnings299. However, the use of
this criterion does not mean that the Court may act discretionally in setting the amounts of
296
Cf. Case Bámaca Velásquez, supra note ¡Error! Marcador no definido., para. 43 and Case Fontevecchia
and D`Amico, supra note 28, para. 114.
297
Cf. Case Velásquez Rodríguez, supra note ¡Error! Marcador no definido., para. 27 and Case Family
Barrios, supra note 31, para. 378.
298
Cf. Case Neira Alegría et al. supra note ¡Error! Marcador no definido., para. 50 and Case Family
Barrios, supra note 31, para. 373.
299
Cf. Case Neira Alegría et al.
Barrios, supra note 31, para. 373.
supra note ¡Error! Marcador no definido., para. 50 and Case Family
82