23
domestic courts. All it is empowered to do in this Case is call attention to the procedural
violations of the rights enshrined in the Convention which have injured Mr. Raymond GeniePeñalba, the interested party in the matter; however, it lacks jurisdiction to remedy those
violations in the domestic arena, a task, as has been pointed out before, that falls to the
Supreme Court of Justice of Nicaragua when it disposes of the application for judicial review
which is yet to be resolved.
95.
In view of the nature of the violation which the Court has found attributable to the
Government in this Case -the authorities' obstruction of the judicial investigation and
unwarranted delay in the process- which it will mention in the operative part of this
Judgment, any attempt to determine compensation for damages would be based on mere
speculation as to the outcome if this type of violation had not occurred (Eur. Court HR, Case
of Schmautzer v. Austria, judgment of 23 October, 1995, Series A no. 328-A; Eur. Court
H.R., Hauschildt judgment of 24 May 1989, Series A no. 154; Eur. Court H. R., Saïdi v.
France judgment of 20 September 1933, Series A no. 261-C and Eur. Court HR, Fischer v.
Austria judgment of 26 April 1995, Series A no. 312) and therefore refrains from so doing.
On the other hand, it considers that, in fairness, it must order the Government to pay
pecuniary compensation to the father of young Jean-Paul Genie-Lacayo, which it fixes at
US$ 20,000.00 (twenty thousand dollars of the United States of America) or its equivalent
in the local currency of Nicaragua, to be paid, without deduction for taxes, within six
months of the date of notification of this Judgment. The amount to be paid shall be
calculated on the basis of the exchange rate between the United States dollar and the
Nicaraguan currency on the New York stock exchange on the day before the payment is
made.
96.
Since the Court has found that human rights protected by the Convention have been
violated, it finds that Nicaragua must use every means at its disposal to ensure by law the
free and full exercise of human rights; as a consequence of that obligation, it must secure
the restitution of the violated right and, where appropriate, remedy the delay that is the
subject of the violation indicated.
IX
97.
Now, therefore:
THE COURT,
unanimously
1.
Dismisses the preliminary objection of non-exhaustion of domestic remedies
interposed by the State of Nicaragua.
unanimously
2.
Decides that the State of Nicaragua has violated Article 8(1) of the Convention, in
connection with Article 1(1), to the detriment of Mr. Raymond Genie-Peñalba.
unanimously
3.
Decides that the State of Nicaragua has not violated Article 2, 25, 24 and 51(2) of
the Convention.