In the
Suárez Rosero Case,
the Inter-American
Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”),
composed of the following judges*:
Antônio A. Cançado Trindade, President
Hernán Salgado Pesantes, Judge
Máximo Pacheco Gómez, Judge
Oliver Jackman, Judge
Alirio Abreu Burelli, Judge
Sergio García Ramírez, Judge
Carlos Vicente de Roux Rengifo, Judge;
also present,
Manuel
E. Ventura Robles, Secretary and
Renzo
Pomi, Deputy Secretary, and
pursuant
to Article 67 of the American Convention on Human Rights (hereinafter “the
Convention” or “the American Convention”) and articles 29.2 and 58 of the
Court’s Rules of Procedure (hereinafter “the Rules of Procedure”), decides
the following request filed by the State of Ecuador (hereinafter “Ecuador”
or “the State”) on April 16, 1999, seeking an interpretation of the judgment
on reparations delivered by the Court on January 20, 1999 in the Suárez Rosero
Case (hereinafter “the judgment on reparations”).
1. Under Article 67 of the Convention, the
Court is competent to interpret its own judgments. When considering a request for interpretation, the Court shall be
composed, whenever possible, of the same judges who delivered the judgment
of which interpretation is being sought (Article 58.3 of the Rules of Procedure).
II
2. On April 16, 1999, Mr. Ramón Jiménez Carbo, State’s Attorney
General, presented a request for interpretation of the judgment on reparations,
pursuant to Article 67 of the American Convention and in keeping with Article
58 of the Rules of Procedure. In that
submission, Mr. Jiménez Carbo stated that he was the “only judicial representative
of the Ecuadorian State” to submit that request.
3. By note of April 22, 1999, the Secretariat of the Court (hereinafter
“the Secretariat”), acting upon instructions from the President of the Court
(hereinafter “the President”), asked Mrs. Laura Donoso de León, the accredited
Agent in the instant case, to clarify whether, in light of the statement made
by Ecuador’s Attorney General, the latter should be regarded thenceforth as
Ecuador’s Agent in the proceedings for an interpretation of judgment.
4. On May 3, 1999, the Agent for the State advised the Court that
“notwithstanding the fact that the Attorney General of Ecuador sent [the request]
directly,” the authority invested in her was still valid.
5. By note of May 4, 1999, the Secretariat forwarded copies of
the request for interpretation to Mr. Rafael Iván Suárez Rosero, victim in
the instant case, and to the Inter-American Commission on Human Rights (hereinafter
“the Commission” or “the Inter-American Commission”). As instructed by the President, the Secretariat invited them to
submit whatever written comments they deemed relevant by no later than May
14 and 18 of that year, respectively.
6. On May 18, 1999, the Commission submitted its written comments
on the request for interpretation. Mr.
Rafael Iván Suárez Rosero submitted his comments on May 21, 1999, stating
that he had not received the Secretariat’s invitation until May 13, 1999,
and had therefore not had the opportunity to reply within the time limit established
by the President. He therefore asked
that the original time limit given be reconsidered.
III
7. In its request for interpretation, the State petitioned the
Court to “shed light on the real meaning and scope” of operative paragraphs
“two, three and four, subparagraph b” of the judgment on reparations.
8. In those operative paragraphs the Court had unanimously resolved:
[...] that the State of Ecuador
[must pay], in the manner and under the conditions stipulated in paragraphs
101 to 112 of the judgment, a total of US$ 86,621.77 (eighty-six thousand
six hundred twenty-one United States dollars and seventy-seven cents) or its
equivalent in Ecuador’s national currency, distributed as follows:
a. US$ 53,104.77 (fifty-three thousand one hundred four United
States dollars and seventy-seven cents) or its equivalent in Ecuador’s national
currency, to Mr. Rafael Iván Suárez Rosero;
b. US$ 23,517.00 (twenty-three thousand five hundred seventeen
United States dollars) or its equivalent in Ecuador’s national currency, to
Mrs. Margarita Ramadán Burbano; and
c. US$ 10,000.00 (ten thousand United States dollars) or its equivalent
in Ecuador’s national currency, to the minor Micaela Suárez Ramadán.
[...;]
that for costs and expenses
the State of Ecuador [must pay], in the manner and under the conditions stipulated
in paragraphs 101 to 112 of the judgment, the sum of US$ 6,520.00 (six thousand
five hundred twenty United States dollars) or its equivalent in Ecuador’s
national currency to Mr. Alejandro Ponce Villacís, and the sum of US$ 6,010.45
(six thousand ten United States dollars and forty-five cents) or its equivalent
in Ecuadorian currency to Mr. Richard Wilson.
and that the payments ordered shall be exempt from
any existing or future taxes or levies (operative paragraph four, subparagraph
b.).
9. After examining Ecuador’s submissions, the Court has concluded
that despite the rather general terms in which the State’s request is formulated,
the latter is seeking an interpretation of two specific and different points.
10. The first concerns the compensation ordered for the victim and
his next of kin. The State obviously
understands that the amounts in question are not subject to taxation at time
of payment. Its doubt is whether the
“interest earned and the use made” of the proceeds from the compensatory damages
subsequent to payment would also be tax exempt.
11. The second question that the request for interpretation poses
concerns the payment ordered for the victim’s attorneys which, according to
the State, “is taxable.”
12. Having established the two points raised in the request for interpretation,
the Court will now proceed to examine its admissibility.
IV
13. Under Article 67 of the Convention, the request for interpretation
must be filed “within ninety days from the date of notification of the judgment.”
The Court has established that the State was given notice of the judgment
on reparations in the instant case on January 25, 1999.
The request for interpretation was, therefore, presented within the
required time limit (supra 2).
14. The Commission’s
comments were also submitted within the established time limit and will therefore
be considered.
15. Mr. Suárez Rosero’s comments, on the other
hand, were submitted after the time limit had passed because, according to
him, the notice soliciting his comments was sent to him only one day before
the deadline fell due, the Court has reviewed the date-of-receipt printed
by his facsimile machine, which shows that the Secretariat’s note of May 4,
1999, reference number CDH-11,273/252, was sent via fax to Mr. Richard Wilson,
one of Mr. Suárez Rosero’s attorneys, on May 5, 1999.
Therefore, the Court cannot accept the explanations that Mr. Suárez
Rosero offers. However, the comments
were submitted within a reasonable period after the prescribed time limit
had expired, and the proceedings in the case were in no way delayed pending
their receipt. Finally, interpretation
proceedings are such that it is useful for the Court to hear the views of
all interested parties. For these
reasons, the Court has decided to consider Mr. Suárez Rosero’s comments.
16. The Court must now turn its attention to
the question of whether the substance of the request for interpretation satisfies
with the applicable rules. Article
58 of the Rules of Procedure provides that
[t]he
request for interpretation, referred to in Article 67 of the Convention, may
be made in connection with judgments on the merits or on reparations and shall
be filed with the Secretariat. It
shall state with precision the issues relating to the meaning or scope of
the judgment of which the interpretation is requested.
In that article of the Convention,
the Court is given the authority to interpret its judgments in the event of
questions as to their meaning and scope.
17. The first issue the State raises (supra 10) is the obvious product of doubt as to whether tax exemptions
applied to any proceeds from the “use and administration” of the amounts that
the Court ordered for Mr. Suárez Rosero, his wife and daughter.
Although the State did not specify which terms of the judgment on reparations
it believed to be obscure or ambiguous, the Court considers that one of its
earlier findings applies with equal force in this situation:
[t]he
transparency of this Tribunal’s proceedings is enhanced by clarification,
when it so deems appropriate, of the content and scope of its Judgments, thereby
dissipating any doubts about them, and that they may not be challenged by
merely formal considerations (El Amparo
Case, Order of the Court of April 16, 1997, Annual Report 1997, p. 123,
first Consideranda).
Accordingly,
because the Court considers that effective fulfillment of its judgment on
reparations will be thus enhanced, the Court will interpret this first issue
raised in the request.
18. The second point for which the State seeks interpretation (supra 11) is a different one. Ecuador expressed disagreement with the tax
exemption the Court ordered for the expenses and costs, arguing that in its
view said costs and expenses were the amounts earned by the victim’s attorneys
in the practice of their profession and therefore could not be exempted from
the “general taxes that every other attorney [in Ecuador] pays.”
19. The Commission and Mr. Suárez Rosero argued that with this request
for interpretation, the State was seeking nullification of part of the judgment
on reparations.
20. The Court has held that
[the]
request or petition for interpretation of a judgment may not be used as a
means of challenging it, but must be made for the sole purpose of working
out the meaning of the decision when one of the parties maintains that the
text of its operative paragraphs or its consideranda
is unclear or imprecise, provided those consideranda
affect that operative paragraph. Hence,
a request for interpretation may not be used to seek amendment or nullification
of the judgment in question. (Loayza Tamayo Case, Order of the Court of March
8, 1998, Annual Report 1998, p. 209, para. 16; in keeping with the Neira Alegría et al. Case, Order of the Court
of July 3, 1992, Annual Report 1992, p.79, para. 23)
The case
law of this Court is consistent with that of the European Court of Human Rights,
which held that interpretation of a judgment shall not alter it in respect
of any issue that the Court decided “with binding force” (Eur. Court HR, Allenet
de Ribemont v. France, Judgement of 7 August 1996 (interpretation) and
Eur. Court HR, Hentrich v. France, Judgement of 3 July 1997
(interpretation), Reports of Judgements and Decisions 1997-IV). In the instant case, the Court notes that the
State’s comments on the subject of the payment of costs and expenses make
no mention of issues whose meaning
or scope might be ambiguous or obscure.
Quite the contrary, what the State indicates in its petition is its
disagreement with that part of the judgment that stipulates that said payment
shall be tax exempt.
21. However, although the meaning and scope
of the judgment on reparations are clear from its language, given the position
taken in respect of the first point raised in the request for interpretation
(supra 17, in fine) the Court believes it would be useful to explore the point
raised by Ecuador concerning the reasons why tax exemption was ordered for
costs and expenses. It will, therefore,
explain this part of the judgment on reparations.
V
22. As stated
previously (supra 15), the Court
will examine whether the tax exemption ordered in subparagraph b of operative
paragraph four of the judgment on reparations applies to the “use and administration”
of the amounts owed to the victim, his spouse and his daughter in the form
of compensatory damages.
23. The State commented that “the amount that
this Court set […] is not subject to taxes of any kind at the time it is received,
nor is it subject to withholding tax.” However, it argued that the use and administration of said amount,
interest earned on it and the use of that interest are new revenue-generating
circumstances and are and must be taxed, because they are not the amount ordered
and paid but rather proceeds from the use to which the amount paid is put.”
24. For its part, the Commission stated the
following:
The Court
is not saying that the use to which the sum received as compensatory damages
is put –either now or in the future- should be tax exempt if such use is taxable
under local tax law. The Court has
not granted some undefined, lifetime tax exemption; it has confined itself
to the otherwise taxable compensatory damages and costs, as these are the
issues it is called upon to decide.
25. For his part, Mr. Suárez Rosero described
certain aspects of Ecuador’s tax system and the mechanisms that, in his view,
would be used to tax the compensatory damages.
In his comments he stated that Ecuadorian law prescribes a 1% tax surcharge
on any monetary transaction effected through institutions in the financial
system. These transactions include
check cashing at financial institutions, bank deposits and any other investment
or savings medium. For this reason,
Mr. Suárez Rosero’s interpretation is that if payment is made in the form
of some financial instrument such as a check, any financial institution in
the system would deduct 1% of its face value at the time the check is cashed.
If, on the other hand, payment were in cash, the 1% would still be
deducted when the beneficiaries credited it to an account or deposited it
in an account with a financial institution.
26. When the Court figured the compensatory damages
in the instant case, it factored in the material damages sustained by the
victim and his next of kin. It added
a sum for moral damages as well, determined on the basis of equity. In the case of Mr. Suárez Rosero, it added
a sum for reimbursement of the costs resulting from proceedings in domestic
courts. The resulting amount constitutes
the “fair compensation” to which Article 63(1) of the Convention refers and
must, therefore, be delivered promptly and in full to the beneficiaries named
by the Court.
27. According to Mr. Suárez Rosero’s comments,
financial institutions in Ecuador automatically apply the deduction required
by law to all monetary transactions, which would be 1% of their total value. Both Mr. Suárez Rosero and the Commission proposed
mechanisms to avoid application of the deduction to the payments ordered.
The former suggested that the State should order the financial institutions
in the system not to withhold that 1% of the payments.
For its part, the Commission proposed that any surcharge be paid by
the State or its agents.
28. The Court considers that no comment on the
suggestions made by Mr. Suárez Rosero
and the Commission is in order. It
must, however, underscore the fact that the wording of the judgment makes
it clear that the State has an obligation to pay the amounts ordered and to
do so in full. For this reason, it
is also incumbent upon the State to avail itself of whatever mechanisms will
ensure full, prompt and efficient compliance with its obligations, under the
conditions and within the time frame established in the judgment on reparations.
Specifically, it means taking the necessary measures to ensure that
the legal deduction that Ecuadorian financial institutions make on monetary
transactions does not affect the beneficiaries’ right to receive the full
amount ordered for them.
29. Once the beneficiaries have received full
and effective payment of the fair compensation they are due, that compensation
will become part of their respective assets.
The use or administration of the compensation thereafter may be subject
to all applicable Ecuadorian tax laws.
30. Therefore, the tax exemption on the payments
the Court ordered for Mr. Rafael Iván Suárez Rosero and Mrs. Margarita Ramadán
de Suárez applies up to the time they receive the full amount they are owed
in the form of the compensatory damages ordered in the second operative paragraph
of the judgment on reparations, under the conditions and within the time period
established in paragraphs 104, 105 and 108 to 111 of the judgment.
31. Further clarification is needed in the case
of Micaela Suárez Ramadán since, being a minor, her interests are a matter
of particular concern. In paragraph
107 of the judgment on reparations, the Court held that
[i]n the
case of the indemnization ordered for the minor Suárez Ramadán, within six
months of the date of notification of [the] judgment, the State shall establish
a trust fund in a solvent and sound Ecuadorian financial institution, under
the most favorable terms allowed by law and in keeping with banking practices. The interest earned shall be added to the principal,
which will be turned over to Micaela Suárez Ramadán in full when she achieves
her majority.
32. Under this order, the State is required
to take all the measures necessary to ensure that the full amount ordered
for the minor Macaela Suárez Ramadán is
deposited in said trust fund and that the amount shall not be subject to taxes
of any kind at the time the trust is set up or to any withholding tax. In this regard, the Court has already stated
that
The Court
interprets the expression under the
most favorable conditions as referring to the fact that any act or measure
by the trustee must ensure that the amount assigned maintains its purchasing
power and generates sufficient earnings or dividends to increase it; the phrase
permitted by […] banking practice indicates
that the trustee must faithfully perform his task as would a good head of
family and that he has the power and the obligation to select diverse types
of investment, whether through deposits in strong currencies, such as the
United States dollars or others, the purchase of mortgage bonds, real estate,
guaranteed securities or any other investment recommended by […] banking practice,
precisely as ordered by the Court (Velásquez Rodríguez Case, Interpretation of the Compensatory Damages Judgement
of August 17, 1990 (Art. 67 American Convention on Human Rights). Series C No.9, paragraph 31).
As for
the proceeds from the trust fund, the State is duty-bound to take the necessary
measures to protect the minor’s interests against inflation, insolvency, negligence
or the incompetence of the trustee.
VI
33. As previously
stated (supra 19), the Court will
also interpret operative paragraph three of the judgment on reparations, in
light of operative paragraph four thereof, wherein exemption from payment
of taxes on costs and expenses is ordered.
34. The State’s contention was that “the amount
fixed for the claimant’s attorneys, Dr. Alejandro Ponce Villacís and Dr. Richard
Wilson, is taxable” and made the following arguments to support its case:
a) The amounts for the
professionals who represent the claimants are for the practice of their profession.
b) By ordering that the
payments shall be exempt from any existing or future tax or surcharge, the
Court is establishing an exemption; under the domestic legal system, exemptions
may only be established by law and not by some foreign judgment.
c) A principle of tax law
reflected in Article 3 of the Ecuadorian Tax Code gives the State sole authority
to establish, modify or extinguish taxes: no law, no tax.
d) The sums for the attorneys’
fees cannot nor should they be taxed merely because they represented the claimants;
on the other hand, they cannot be exempt from the general taxes that other
professionals in Ecuador must always pay.
35. For its part, the Commission argued that
since the payment of fees was an element of the reparations, it should be
accorded the same tax treatment that the payment of compensatory damages receives
and that any tax upon them should be covered by the State.
36. Mr. Suárez Rosero’s argument was that the
State was mistaken; that what the Court had ordered was payment of costs and
expenses, not fees. He further argued
that had there been no violations on the State’s part, the time and effort
of his attorneys would never have been needed.
37. From the State’s comments it is evident
that the State’s understanding is that the amounts it must pay to Mr. Suárez
Rosero’s attorneys would be for fees. However,
from a reading of the judgment on reparations, particularly its paragraphs
20.g and 94, it is patently clear that a significant portion of the amounts
ordered is for reimbursement of expenses that the State had already agreed
to pay during the reparations phase.
38. The State, moreover, has not explained why
it believes that its tax laws apply to the costs awarded for Mr. Richard Wilson,
who worked as counsel for the victim from the American University’s Human
Rights Clinic in the United States, and a portion of the costs awarded for
the victim’s other attorney, Mr. Alejandro Ponce Villacís, who conducted some
of his business out of this office.
39. The Court believes it would be useful to
explain the considerations upon which it based its decision.
40. In its recent case law, and particularly
since the current Rules of Procedure entered into force, the Court has recognized
that costs
are one
element to be considered under the concept of reparations to which Article
63(1) of the Convention refers since they are a natural consequence of the
effort made by the victim, his or her beneficiaries, or representatives to
obtain a court settlement recognizing the violation committed and establishing
its legal consequences (Garrido and
Baigorria Case, Reparations (Art. 63(1) American Convention on Human Rights),
Judgment of September 3, 1998. Series
C No. 39, para. 79)
41. In this context, the amount of the payment
ordered for Mr. Suárez Rosero’s attorneys was considered, at the time, fair
and reasonable. The very essence of
the Court’s judgment on this point is that as part of the fair compensation
of which Article 63(1) of the Convention speaks, it is both “fair” and “reasonable”
that the victim’s attorneys should receive said amounts promptly and in full.
Were the State to deduct some percentage of those amounts for tax purposes,
the amount received by the attorneys would not be the amount that the Court
approved. This would constitute noncompliance with the
judgment on reparations.
42. The Court’s interpretation of this point
is consistent with its case law (see,
inter alia, Loayza Tamayo Case, Reparations (Art. 63(1) American Convention
on Human Rights), Judgment of November 27, 1998. Series C No. 42, operative paragraph nine; and Blake Case, Reparations (Art. 63(1) American
Convention on Human Rights), Judgment of January 22, 1999. Series C No. 48, operative paragraph four)
and with that of the European Court of Human Rights, which, when it orders
payment of costs, either orders the State to add on any taxes that may be
owed (see, inter alia, European Court
of Human Rights, Bulut v. Austria, judgment of 22 February 1996, Report of judgments and decisions 1996-II,
operative paragraph four) or makes the calculation itself and orders payment
of the resulting amount (see, inter
alia, European Court of Human Rights, Young, James and Webster, judgment of
18 October 1982 (Article 50), Series A No. 55, operative paragraph two).
43. Both the Commission and Mr. Suárez Rosero
suggested ways to avoid any adverse consequences to the attorneys by reason
of taxes. The Court considers that
any ruling on the manner of compliance is irrelevant. The Court has already stated that from the wording of the judgment,
it is patently clear that the State has the obligation to pay the amounts
ordered and to do so in full and that in order to fulfill this objective,
Ecuador must employ the proper means to ensure that this obligation is discharged
promptly and efficiently, under the terms and within the time limit ordered
by the Court.
44. The Court considers therefore that the payment
of the costs and expenses ordered for Mr. Suárez Rosero’s attorneys may not
be subject to any tax levied by the State.
VII
45. Now, therefore,
The Court
unanimously,
1. That
the request filed by the State of Ecuador for interpretation of the January
20, 1999 Judgment delivered in the Suárez Rosero Case is admissible.
2. That the sums that the Court ordered in
the judgment in question for Mr. Rafael Iván Suárez Rosero and Mrs. Margarita
Ramadán de Suárez shall be paid promptly and in full. It is incumbent upon the State to exhaust all measures to ensure
prompt and efficient fulfillment of this obligation, under the conditions
and within the time limits established in that judgment and, in particular,
to adopt suitable measures to ensure that the legal deductions that Ecuadorian
financial institutions charge on all monetary transactions shall not abridge
the beneficiaries’ right to receive the full amounts ordered for them.
3. That the payment that the Inter-American
Court of Human Rights ordered for the minor Micaela Suárez Ramadán in the
judgment in question, shall be deposited in full in the trust fund mentioned
in paragraph 107 of the judgment and that said amount shall not be subject
to any tax at the time the trust fund is set up or to any tax withholdings.
4. That the attorneys for Mr. Suárez Rosero
are to receive full and prompt payment of the costs and expenses that the
Inter-American Court of Human Rights ordered in the judgment in question and
that at time of payment, said amount shall not be subject to any deductions
or taxes.
Done in
Spanish and in English, the Spanish text being authentic, in San José, Costa
Rica, May 29, 1999.
Antônio
A. Cançado Trindade
President
|
Hernán Salgado Pesantes Oliver Jackman Sergio García Ramírez |
Máximo
Pacheco Gómez Alirio
Abreu Burelli Carlos
Vicente de Roux Rengifo |
Manuel
E. Ventura Robles
Secretary
So ordered,
Antônio
A. Cançado Trindade
President
Manuel
E. Ventura Robles
Secretary
*In keeping with Article 4.3 of the Rules of Procedure, because he was an Ecuadorian citizen, on September 16, 1997, Judge Hernán Salgado Pesantes, President of the Court, delegated the functions of the Presidency for this specific case to the Court’s Vice-President, Judge Antônio A. Cançado Trindade.