108
f)
regarding litigation of this case before the Court, they reserved their right
to subsequently submit the amount of expenses incurred in the future.
231. Arguments of the State
a)
Based on the arguments submitted and the merits of the case, measures
of reparation are to be ruled out;
b)
should the Court consider that the State should provide measures of
reparation, due regard should be had to the fact that the final use of the books
was not commercial, but that Mr. Iribarne intended to donate a copy of the
book to “each member of the intelligence department of the Office of the
Commander in Chief of the Third Naval Zone. [This] unmistakably shows the
intellectual, not commercial, motive of the book’s author, which would hardly
provide justification for material monetary loss;”
c)
the forfeiture of the copies of the book and other materials does not
amount to the consequential damages claimed by the representatives of the
alleged victim. The forfeiture of ownership rights to the items and instruments
of the crime (books and other materials) was the result of the application of a
legal provision that is enforced in most legal systems and which the judge
hearing the case cannot possibly disregard;
d)
the representatives’ claim that the value of the books and other seized
materials cannot possibly be assessed is not convincing. On the contrary, there
is sufficient background information to accurately assess the commercial value
of the books. The documentary evidence submitted by the Commission shows
that Mr. Palamara-Iribarne invested seven hundred thousand Chilean pesos to
have the books printed and published (consequential damages), that the
commercial price of one book was $ 3,800 (three thousand eight hundred
Chilean pesos) and that the commercial value of all the seized copies of the
book totaled 3,439,000 (three million four hundred and thirty-nine thousand
Chilean pesos). The actual cost of the books should be deducted off such
commercial value;
e)
an award of non pecuniary damages on account of court proceedings that
were legally instituted and carried out is not in order. There are no precedents
in the Court’s case-law to assess such damage; and
f)
the alleged victim imprudently placed himself in a situation of economic
risk by publishing a book without first obtaining the prior authorization required
under legal provisions that apply to every civilian contract employee of the
Chilean Navy.
(Santiago de Chile-Asunción-Santiago de Chile) to attend a hearing before the Court: US$ 1,233; 4) air
fare, traveling expenses and accommodation for two attorneys (Buenos Aires-Asunción-Buenos Aires and
Río de Janeiro-Asunción-Buenos Aires): US$ 2,316.67; 5) air fare, traveling expenses and accommodation
in Asunción for expert Christian Riego, for the hearing of May 9,2005: US$ 718.
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