PARTIALLY DISSENTING OPINION OF JUDGE DIEGO GARCÍA-SAYÁN WITH RESPECT TO THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE CASE OF SALVADOR CHIRIBOGA V. ECUADOR MARCH 3, 2011 1. The Judgment on the Merits issued in this case by the Court on May 6, 2008, is clear regarding the standard for determining the amount of “just compensation,” as well as on how to make this determination. Thus, in this Judgment on reparations, the Court is not called to decide on how to reach that determination as it did so in the Judgment on the Merits by establishing that it would be done “by mutual agreement between the State and the representatives within a six month period after the notification of [the] Judgment.” 2.As is reported in this Judgment, the parties did not reach an agreement within the time limit which, in turn, had also been extended to February 15, 2009, at the request of the State. Upon reaching this deadline without having come to an agreement, the parties placed the matter in the hands of the Court to determine the reparations established in operative paragraph 5 of the Judgment on the Merits. That is what the Court has done in this Judgment on reparations. The just compensation 3.The essence of the matter in regard to the determination of reparations lies in setting the amount that must be paid by the State for the expropriation of the property referred to in this case. In reaching that determination, the Court had as it’s starting point at least two clear and explicit factors. One is contained in Article 21(2) of the American Convention on Human Rights 1 and the other is a standard established by the Court in its Judgment on the Merits of May 6, 2008. 4.In regard to the determination of “just compensation” in this case, in the Judgment on the Merits, 2 standards are established to guide the assessment: 98.The Court considers that, in expropriation cases, in order for the just compensation to be adequate, the trade value of the property prior to the declaration of public interest must be taken into account and also, the just balance between the general interest and the individual interest as referred to in this Judgment […]. 5.In essence, there are two standards determined by the Court: a) the market value of the property “before the declaration of public interest” and b) “the just balance between the public interest and the private interest.” Both standards could have led to the establishment of an amount less than U.S. $18,705,000.00 under paragraph 84 of this Judgment, and as a corollary, also below the U.S.9,435,757.80 in what regards interests established in the Judgment 3, wherein the total compensation for these comes to a total of $ 28,140,757.80. Market value of the property prior to the declaration of public interest 2.The first aspect is the market value of the property “prior to the declaration of public interest.” In the Judgment, it is stated that the market value should be the value it was before the declaration of public interest. The Judgment explains and develops quite clearly the factual and legal circumstances prior to that declaration. 1 Article 21(2) (Right to Private Property): 1.Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. 2.No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. [...] 2 Cf. Case of Salvador Chiriboga V. Ecuador, supra note 1, para. 98. 3 Paragraph 101 of the Judgment on reparations.