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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 immediatelyof 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 casethat 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 does- without the need to generate difficult issues
regarding generally observed tax rules.
Sergio García-Ramírez
Judge
Pablo Saavedra-Alessandri
Secretary
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