exercise of those rights, and prevent the annulment or amendment of laws that protect
them. 251
222.
In this case, the central issue - and this is what the Court has focused on– was the
examination of alleged human rights violations stemming from the decision taken by the
National Congress on December 8, 2004. The Court did not examine the compatibility of a
specific provision with the American Convention, since that was not the subject of this case.
Moreover, the representatives did not provide sufficient elements to demonstrate that the
violations arose from a problem stemming directly from the text of the laws, and
consequently it is not possible to order an amendment of provisions that are not directly
related to the violations declared in this case. Therefore, in the circumstances of this case, it
is not pertinent to order the adoption, amendment or adaptation of specific provisions of
domestic law.
C.
Compensation for pecuniary and non-pecuniary damages
1.
Pecuniary damage
Arguments of the Commission and the parties
223. The Commission asked the Court to order the State to “[p]ay the victims the
professional wages and/or social benefits they failed to receive from the time of their
dismissal up until the moment when they are reinstated or else until the alternative
indemnification described in the previous recommendation is paid.”
224. The representatives requested that the State be ordered to pay “monetary
compensation for damages based on the amount of the salaries that the judges did not
receive and the time elapsed since the violation was committed until effective compliance
with the Judgment. In the case of the judges, this implies the salary (salary plus social
benefits) that they did not receive due to their dismissal.” The calculation of this
compensation would be “based on the judges’ salary history, on the number of years that
have elapsed since their dismissal and up until the issuance of the Judgment.”
225. The representatives indicated that the calculation of back wages should take into
account the salaries that the victims did not receive until the effective implementation of the
Judgment. They considered that calculating the amount up until the issuance of the 2008
Constitution, was a proposal that limited the victims’ rights, since the State had offered
friendly settlements on three occasions, which were never made effective, suggesting that
this was a strategy to delay the process. Furthermore, the representatives pointed out that,
if the State had acknowledged its violation in a timely manner, the period for calculating the
compensation might have been shorter and the former judges might even have been
reinstated in time. The representatives argued that, even assuming that after the issuance
of the 2008 Constitution the victims in this case had become Judges of the National Court of
Justice of transition, and had been in office until 2012, their rights would not have
disappeared under the 2008 Constitution, as the State affirmed.
226. The representatives also argued that the State cannot change its adopted position for
its own benefit, and should therefore accept that it had already acknowledged the amounts
owed by issuing certificates of settlement to the victims as an offer of payment and that the
amount due was calculated up to 2011, the date on which said document was issued. The
victims’ representatives consider that these documents have major significance in terms of
251
Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, Reparations and Costs. Judgment of May 30, 1999. Series
C No. 52, para. 207, and Case of Mendoza et al. v. Argentina, para. 323.
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