D.
Claims for pecuniary reparation made by the representative of the presumed
victims
D.1.
Arguments of the Commission and pleadings of the parties
46.
The State indicated that “none of the presumed victims (the young men sentenced
and their next of kin) submitted pecuniary claims before the local justice system of the
Argentine Republic,” and “neither did they, at any time before the international jurisdiction,
cite grounds that would have prevented them from having access to the jurisdictional
instance based on those claims.” It indicated that, based on the principle of good faith that
should govern the interpretation and application of treaties, and in light of the reservation
made by the State when ratifying the American Convention with regard to the limitation of
the Court’s competence to review the compensation awarded by the local courts, the
admissibility of the claim being originated before the inter-American system infringes that
reservation.
47.
The Commission observed that the State’s claim sought to extend the scope of the
reservation in order to prevent the possibility of a victim of human rights violations
requesting pecuniary reparations. This interpretation would run contrary to the object and
purpose of the American Convention, especially the basic principle that all human rights
violations generate the obligation to make reparation, pursuant to Article 63(1) of this
instrument. It also indicated that the argument regarding a possible failure to exhaust
domestic remedies is time-barred, as it was not presented at the proper moment before the
Inter-American Commission.
48.
The representative stated that neither the text of the American Convention nor the
case law of the Court suggest that the victim is required to have filed pecuniary claims at
the domestic level for the Court to be able to rule on pecuniary reparations in a particular
case. The representative also found that the State’s argument was not admissible as a
supposed objection based on failure to exhaust domestic remedies, because this is not the
appropriate procedural moment to submit that argument. In addition, the representative
indicated that the term “fair compensation” included in the State’s reservation to Article 21
of the Convention does not refer to any type of compensation in the abstract granted by any
court but rather to compensation in the context of a restriction of the right to property.
D.2. Considerations of the Court
49.
The Court observes that during the proceedings before the Commission, the State
did not argue the presumed failure to exhaust domestic remedies with regard to claims for
compensation for the presumed victims in this case. In this regard, pursuant to this Court’s
case law, the State’s argument is therefore time-barred. Consequently, the Court concludes
that the State tacitly waived the right to submit this defense at the proper procedural
moment. 17 Nevertheless, on ratifying the American Convention, the State made a
reservation to Article 21. 18 However, in this case, the violation of the right to private
property, recognized in Article 21 of the American Convention, was not alleged; nor was the
17
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary objections. Judgment of June 26, 1987. Series C
No. 1, para. 88, and Case of the Massacre of Santo Domingo v. Colombia. Preliminary objections, merits and
reparations. Judgment of November 30, 2012, para. 34.
18
The text of the reservation is as follows: “The Argentine Government establishes that questions relating to
the Government's economic policy shall not be subject to review by an international Court. Neither shall anything
the domestic courts may determine to be matters of 'public purpose’ and 'social interest,' nor anything they may
understand by 'fair compensation’ be subject to review.”
19