35
had to endure. Therefore, the Court is requested to grant an equitable
amount to compensate such persons for their loss of income.
Argument by the State
73.
As regards the pecuniary damage, the State made the following submission,
to wit:
a)
in the instant case, the estate has not been evidenced by documents
under seal or any other means of evidence, and therefore, the Court may not
determine accurately the amount of the possible damages suffered.
Furthermore, some items of evidence are defective in that they contradict
others in many aspects;
b)
No documentary or testimonial evidence have been produced
regarding the change of residence, work, nor evidencing the specialized
medical attention received, the loss of property –including businesses,
vehicles and real estate- nor the expenses incurred to seek justice by the
Gutiérrez-Soler family; and
c)
It has not been proved that Messrs. Wilson and Ricardo GutiérrezSoler and their father, Mr. Álvaro Gutiérrez, suffered a substantial detriment
in their working capacity due to the constant harassment they endured.
However, the State in good faith accepts, in view of the weakness of the
evidence submitted by the party having the burden of proof, the existence of
a minimum damage that must be compensated as loss of profit. The
aforesaid, on the basis of the principle according to which every working
activity has a minimum vital and adjustable remuneration, which is
proportional to the amount and quality of the work performed. The
compensation has to be granted on the basis of the legal minimum salary in
force in Colombia and not on an equitable basis as claimed by the
Commission and the Representatives. On the basis of the legal minimum
salary in force in Colombia, and applying financial formulae recognized in the
Colombian precedents, the State figures out the total loss of profit sustained
by Mr. Wilson Gutiérrez-Soler amounts to 136,305,374.46 Colombian Pesos.
Considerations of the Court
74.
The Court shall herein address the pecuniary damage, which implies the loss
of, or detriment to, the income of the victim, the expenses incurred due to the
events and the pecuniary consequences that may have a cause-effect link with the
events in the instant case,33 for which, if applicable, the Court fixes a compensatory
amount seeking to redress the economic consequences of the violations that were
determined in this Judgment. In order to make a decision as to the pecuniary
damage, the Court shall take into account the body of evidence, its own precedents
and the arguments submitted by the parties.
a)
Loss of Income
33
Cf. Case of Acosta Calderón, supra note 3, para. 157; Case of YATAMA, supra note 3, para. 242;
and Case of Fermín Ramírez, supra note 3, para. 129.
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