21
were examined elsewhere in the judgment, and on this basis the Court reached the
conclusion that both Mrs. Baruet and the children mentioned in said ruling are,
themselves, victims of the facts in violation, and not merely entitled, for other
reasons, to property-related reparations.
XVIII. Restitutio in integrum
94.
It has been customary for the Court to reflect, in its judgments on reparations,
the well-known idea that “reparation of the damage requires, whenever possible, full
restitution (restitutio in integrum), which consists of reestablishment of the prior
situation.” And it has also been customary for it to immediately add: “When this is
not possible, as in the instant case...”. This is so in the Tibi judgment. I also sign
this statement because I agree that the best reparation would be “reestablishment of
the prior situation” before the violation. However, this is not possible, as I have
stated before (for example, in my Concurring opinion in the judgment on the Bámaca
Velásquez case, issued on November 25, 2000). It would be like turning the hands of
the clock back and returning the person whose right was abridged to the situation
before that event.
95.
Full restitutio is logically and materially unfeasible, except regarding formal,
virtual violations, with no impact on any life, which may be suppressed, like when the
erroneous or undesirable words are expelled from a computer.
It involves
disregarding the fateful nature of the consequences –even if they cannot be perceived
immediately- of the violation committed. That is why judgments on reparations
invariably state that “in the instant case” it is not possible to apply restitutio. If
restitutio is not possible in any case, it may be time to go directly to what is feasible.
This was graphically expressed in some early judgments of the Court, regarding the
impossibility of complete reparation of all the consequences of the violation
committed, as they open and expand like concentric circles on a pond when a stone is
thrown into it.
XIX.
Taxation
96.
In some of my previous Opinions I questioned the pertinence of ruling that
compensations, costs and expenses –all of them items of the same type: material
reparations- will be subject to no taxes. I said several times –most recently, in my
Opinion attached to the November 25, 2003 judgment in the Myrna Mack Chang
case- that this judicial provision entailed a modification of the tax system of a
country, insofar as it led to establishing a specific assumption of tax exemption. This
generally requires a concerted effort of the legislative and administrative authorities,
through general or specific provisions, which are difficult and unnecessary for the
purposes sought by the property-related reparations system for victims of violations.
What the judgment seeks is to avoid taxation being imposed that diminishes the
reparations ordered, making them illusory. Instead, it seeks to ensure that they
reach the beneficiaries in full, as ordered. If that is so, then it is sufficient to say so
in those or in similar terms –as the judgment to which I attach this Opinion doeswithout the need to generate difficult issues regarding generally observed tax rules.
Sergio García-Ramírez
Judge
Pablo Saavedra-Alessandri
Secretary
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