Inter-american court of human rights
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- D.1.1. Pecuniary damages
- D.1.2. Non-pecuniary damages
- D.2. Considerations of the Court
CompensationD.1. Arguments of the Commission and of the partiesThe Commission asked the Court to “adopt the necessary measures to guarantee to the displaced fair compensation for the violations of which the Afro-descendant communities of the Cacarica associated in CAVIDA and the women heads of household who live in Turbo were victim” and “to make reparation to the next of kin of Marino López for the pecuniary and non-pecuniary harm suffered owing to the violations of the American Convention established in th[e] report.”734 The State considered that the large-scale administrative program of integral reparation established in the Victims Law was the only way to satisfy the right to adequate, prompt and effective reparation of the victims of displacement in Colombia, including, if any, those that the Court recognizes as victims in this case, given the situation that the country faces. In this regard, the Commission considered that the reparations could not be channeled through and satisfied by this law, because: (a) it is a new law that is being implemented and adjusted,735 and (b) it distorts the nature of the inter-American system736 and its scope.737 For their part, the representatives maintained that the said law was insufficient, given the magnitude of the harm caused, as well as the nature and amount of the reparations that it included. They argued that it is a law of a general character,738 and the compensation that it provides for displaced persons is unclear and includes items that are not applicable in this specific case;739 also, that it confuses the provision of services for the displaced population with reparations.740 They concluded that, if this law were to be applied to this case, the right of access to justice and equality of the victims would be violated. Based on the principle of subsidiarity, the State asked the Court to abstain from ordering any reparation because the presumed victims had not requested reparations before the contentious-administrative jurisdiction, which was the competent jurisdiction, and that, in the case of Colombia, this is seated in the Council of State, an entity that has been characterized by its rulings on the issue and for ordering measures of integral reparation. Nevertheless, it asked that, if the Court should order compensation, it take into account the payments made to the presumed victims under the provisions at the domestic level for providing attention and reparation to the displaced populations. D.1.1. Pecuniary damagesRegarding pecuniary damage, the representatives requested: (a) payment to each family of US$1,244,633 (one million two hundred and forty-four thousand six hundred and thirty three United States dollars), which includes the concepts of consequential damage741 and loss of earnings;742 (b) payment to the family of Marino López of US$4,680,296 (four million six hundred and eighty thousand two hundred and ninety-six United States dollars),743 and (c) that the Court take into account “the expenses incurred by the members of the communities of the Cacarica River basin in the steps they took in order to return to their territory, such as travel to various State agencies.” In order to authenticate the pecuniary damage, the representatives attached some estimates for materials and a power plant, among other items, as well as “fact sheets with an average calculated on the census of the damage drawn up by the Comisión Intereclesial de Justicia y Paz in 2011,” which “was obtained from the families who were victims on oath.” The Commission and the State did not present specific arguments with regard to these requests of the representatives. D.1.2. Non-pecuniary damagesThe representatives asked that, based on a series of consideration,744 the Court grant, as non-pecuniary damages, to the family of Marino López the sum of US$100,000.00 (one hundred thousand United States dollars); to those displaced to Turbo, Bocas del Atrato and Bahía Cupica US$80,000 (eighty thousand United States dollars), and to the women displaced to Turbo US$90,000 (ninety thousand United States dollars). Added to this, they asked as a gender-differentiated measure, for financial subsidies to be granted to the women heads of household in recognition of the loss of their husbands or companions in Operation Genesis or, if they were already heads of household, owing to the difficulties suffered.745 D.2. Considerations of the CourtRegarding the measure of compensation, the Court notes that information was presented concerning domestic administrative mechanisms of reparation that exist in Colombia, and that have been adopted recently, which benefit “those persons who individually or collectively have suffered harm owing to events that took place after January 1, 1985, as a result of violations of international humanitarian law or gross and manifest violations of international human rights law that occurred as a result of the internal armed conflict,”746 and specifically for human rights violations relating to murder, forced disappearance, kidnapping, injuries that have caused temporary or permanent disability, torture or inhuman and degrading treatment, crimes against sexual liberty and integrity, forced recruitment of minors, and forced displacement.747 In relation to the measures of reparation, the Court underlines that international law establishes the individual entitlement of the right to reparation. Despite this, the Court indicates that, in scenarios of transitional justice in which States must assume their obligations to make reparation on a massive scale to numerous victims, which significantly exceeds the capacities and possibilities of the domestic courts, administrative programs of reparation constitute one of the legitimate ways of satisfying the right to reparation. In these circumstances, such measures of reparation must be understood in conjunction with other measures of truth and justice, provided that they meet a series of related requirements, including their legitimacy – especially, based on the consultation with and participation of the victims; their adoption in good faith; the degree of social inclusion they allow; the reasonableness and proportionality of the pecuniary measures; the type of reasons given to provide reparations by family group and not individually; the distribution criteria among members of a family (succession order or percentages); parameters for a fair distribution that take into account the position of the women among the members of the family or other differentiated aspects, such as whether the land and other means of production are owned collectively.748 Furthermore, in the case of pecuniary reparations, a criterion of justice should include aspects that, in the specific context, do not become illusory or derisory, and make a real contribution to helping the victim deal with the negative consequences of the human rights violations on his life. In this case, the Court recognizes and appreciates the progress made by the State as regards making reparation to victims of the armed conflict, implemented with increased momentum since the promulgation of the Victims Law. In addition, it is clear that, as mentioned by the deponent for information purposes in his presentation during the hearing and in the document that he handed over at that time,749 the point that the State has arrived at is the result of an evolution in the conflict and of the measures taken by the Government not only to combat this, but also so that, regardless of what happens in the context of the conflict, the victims have the right to reparation. As indicated in the expert opinion of Juan Pablo Franco, proposed by the State, the Constitutional Court has recognized the progress that the Law on Victims and Land Restitution has represented in the area of reparations.750 The Court also received information on Decree 4635 of 2011, “establishing measures of assistance, attention, integral reparation and land restitution to the victims belonging to the Black, Afro-Colombian, Raizal and Palenquera communities,” which include, in the case of Afro-Colombian communities that have suffered collective harm, the possibility of providing them, in addition to the individual administrative compensation, with a collective compensation and a program of advisory services and support for the investment of the resources provided as collective and individual compensation. All this is executed through an Integral Collective Reparation Plan (PIRC), a procedure developed together with the communities that includes prior consultation and that is described in the Decree.751 Lastly, the principle of the complementarity of international law cannot be disregarded. This is recognized in the Preamble to the American Convention752 and has been taken into account by the Court in other cases753 to acknowledge the compensation granted at the domestic level and to abstain from ordering reparations in this regard, when this is pertinent. The Court decides that the Colombian State must guarantee that all the persons who have been recognized as victims in this Judgment (supra paras. 431) have priority access to the said administrative reparations, and that it proceed to pay them, as soon as possible, irrespective of the time frames that domestic law may have established for this, avoiding obstacles of any type. The foregoing must be implemented within no more than one year of notification of this Judgment. In addition, in the case of the next of kin of Marino López, the Court notes that they suffered different types of effects owing to his death, namely: (a) owing to the particularly cruel circumstances in which Marino López was executed (supra para. 435), and (b) owing to the fact that this act remained unpunished for 15 years, and that, even today, those responsible have not been tried or punished. Based on the criteria established in its consistent case law, the Court finds it pertinent to establish, in equity, for the pecuniary and non-pecuniary harm caused to Marino López Mena, the sum of US$70,000.00 (seventy thousand United States dollars) or the equivalent in Colombian pesos, which must be paid within the respective time frame (infra para. 482) to Mrs. Palacios, companion of Mr. López, as well as the sum of US$35,000.00 (thirty-five thousand United States dollars) or the equivalent in Colombian pesos, to each of Mr. López Mena’s children, and US$10,000.00 (ten thousand United States dollars) to each of his siblings, to be determined as indicated above (supra para. 435). 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