reasonable criteria, and whether the said reparation was effective to achieve the purpose
sought by compensation, which is to make financial reparation for the situation and the
expenses arising from the violation, and to re-establish for those affected the situation or
status they would have enjoyed in the absence of that damage or injury, 23 and that would
have allowed them to pursue their projects and goals.
25.
Although Article 63(1) of the Convention does not condition the reparations
established by the Court to the instruments of reparation that exist under the domestic laws
of the State Party responsible for the violation, in application of the principle of subsidiarity,
it is advisable that, when deciding whether or not to establish compensation to make
reparation for a specific pecuniary damage, the Court assesses whether the State has
already made reparation for this damage, in light of the American Convention and the
principles of international law applicable to the matter.
26.
In addition to the above, when examining the reparation awarded at the domestic
level the Court must verify whether the State has complied with its obligation under the
Convention to establish in its domestic law an effective remedy to repair human rights
violations, to be implemented using proceedings that respect the rights and guarantees
established in Articles 8 and 25 of the American Convention. These considerations are
limited to examining the effectiveness of the remedy created to make reparation for the
pecuniary damage.
27.
In the instant case, the Colombian Council of State, the highest organ of the
administrative-law jurisdiction of that country made the final determination of the
compensation for loss of earnings based on explicit, clear, objective and reasonable criteria
that sought to compensate the damage suffered. The way in which the Council of State
calculated the loss of potential income differed from the way that the Court usually
calculates it; nevertheless, the criteria used by this State organ was not contrary to the
essential criteria intended to establish fair compensation for the financial damage caused to
those who would have benefited directly from the income that the victim would have
perceived. The decision adopted by the domestic courts was not arbitrary, but was founded
on objective standards, which were known previously at the domestic level. Consequently,
the Court cannot and must not disregard this domestic decision.
28.
Moreover, consequent with the foregoing criteria, the Court also verified that the
decision made during the administrative proceedings did not include another type of
damage that the Court has considered must be compensated; namely, indirect damage. it
therefore ordered compensatory damages to compensate that harm (para. 247), without
limiting itself to what had been established in the domestic sphere.
IV.
Interaction between the Inter-American Court and the domestic courts:
seeking to improve the protection of rights in the domestic sphere
29.
The effective respect and guarantee of human rights depends, above all, on the will
and action of the States; consequently, it is an obligation of the States to be the initial
mechanism for the protection of human rights. As founders and actors of the inter-American
system for the protection of human rights, the States have the obligation to ensure the
implementation at the domestic level of the international norms of protection. After all, the
daily effectiveness of the rights established under the system depends on this.
23
SHELTON, Dinah, Remedies in International Human Rights Law, op. cit., p. 22.
7
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