19
Arguments of the State
50.
With regard to the Court’s application of Article 63 of the American
Convention, the State alleged that:
a)
When determining compensation, the Court should have left the
proceeding open so that the parties could agree on the payment of
compensation, and only if they could not reach agreement, could the
Court establish the respective amounts; this procedure was used in
previous cases against Honduras. The determination of the amount of
the compensation can be negotiated by the parties and “they have
exclusive competence to establish this; only if they cannot reach
agreement, can the Court establish the amount.” However, the State
stressed that these observations were made “without detriment to [the
Court] ruling in the [judgment] on the measures of another nature
[non-pecuniary] (deriving from the obligation to respect and ensure
contained in [Article] 1 of the Convention, such as the investigation of
the facts relating to the disappearance of the victims, or to the
punishment of those responsible, which is closer to the broader
concept of ‘reparation’[)]. In this respect, the State indicated that
“the [...] Court appears to have failed to distinguish the difference
between ‘reparation’ and ‘compensation[’], and the Court’s function in
the determination of reparations and compensation in accordance with
the interpretation of Article 63(1) of the American Convention and “to
have deviated [...] from its own case law.” It also indicated that the
Court should abide by criteria of “a very objective nature, and
compensation should never be discretional or arbitrary as it appears to
be in the judgment” and the criteria must be based on damage
revealed by the proven facts and not “mere disperse elements that are
unconnected to the litigation or presumptions of responsibility induced
by exogenous factors”;
b)
The judgment is not clear as regard the procedure used to determine
the amounts of the compensation for pecuniary and non-pecuniary
damage, because “the formula used is not indicated”;
c)
The “judgment goes to far and exceeds the faculties or attributes
invested in the Court, because [...] the amount of the compensation
for pecuniary and non-pecuniary damage is unjustifiably inflated or
increased by granting this benefit, not only to the persons who are the
legal successors of the victim, but to all his relatives.” It added that
the Court had deviated from its own practice on determining the
successors, established in the Aloeboetoe et al. case;
d)
The judgment violated “legal writings on the law [of succession] and
the case law of the Court,” because “without any legal basis, it
establishes capriciously,” that the daughters and companions of Juan
Humberto Sánchez should be considered the beneficiaries of
compensation for his loss of earnings. The State added that Sánchez,
as the operator of Radio Venceremos, did not have a regular
employment and did not receive any salary, “therefore, it cannot be
adduced that all the persons mentioned in the judgment, with the
exception of his daughters and his mother, would have the right to
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