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Lawyers and other representatives

    Decision

    1.
    On June 11, 1990, the United States of America and the Republic of Chile entered into the following agreement:

    1. The Governments of the United States of America and the Republic of Chile agree that a dispute exists between their States concerning responsibility for the deaths of Orlando Letelier and Ronni Moffittt in Washington, D.C. on September 21, 1976.

    2. On January 12, 1989 the United States invoked the Treaty for the Settlement of Disputes that May Occur Between the United States and Chile, which entered into force on January 19, 1916, to investigate and report upon the facts surrounding the deaths of Orlando Letelier and Ronni Moffitt in Washington, D.C. on September 21, 1976.

    3. The United States has sought compensation from Chile on behalf of the families of Letelier and Moffitt, on the ground that the United States considers the State of Chile is legally responsible under international law for the deaths of Orlando Letelier and Ronni Moffitt and the personal injuries to Michael Moffitt. Without admitting liability, the Government of Chile, in order to facilitate the normalization of relations, is willing to make an ex gratia payment, subject to the provisions of Paragraph 5, to the Government of the United States of America, to be received on behalf of the families of the victims.

    4. The Governments of the United States and Chile agree that the amount of the ex gratia payment should be equal to that which would be due if liability were established, and should be determined by the Commission established by the 1914 Treaty, in accordance with the Compromis which constitutes the annex to this Agreement. The Governments agree that, notwithstanding the invocation of the 1914 Treaty by the United States on January 12, 1989, in light of the understanding set forth herein, the amount of the compensation to be paid shall be the sole question to be determined by the Commission.

    5. The Government of Chile agrees to pay to the Government of the United States, as its ex gratia payment in this matter, the amount of compensation as determined by the Commission. The Government of Chile undertakes to make the aforesaid payment as soon as possible and after the necessary legal requirements have been fulfilled following the determination by the Commission.

    6. Upon receipt of the ex gratia payment referred to in Paragraph 5 above, the Government of the United States will regard as satisfied the claim espoused in its Diplomatic Note to the Government of Chile of April 18, 1988, and any other possible civil claim of the United States Government in regard to this matter.

    7. This Agreement shall enter into force upon notification to the Government of the United States by the Government of Chile that it has completed the proceedings necessary under Chilean law to bring this Agreement into force.

    IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.

    DONE at Santiago, this eleventh day of June, 1990, in duplicate, in the English and Spanish languages, both texts being equally authentic.

    2.
    The Compromis appended to the Agreement transcribed above reads verbatim as follows:

    1. The United States and Chile agree to convene the Commission established by the 1914 Treaty for the Settlement of Disputes that May Occur Between the United States and Chile, which entered force January 19, 1916.

    2. The Commission shall be composed as follows:

    Hon. William Mulligan

    Sir John Freeland

    Sr. Francisco Orrego Vicuna

    Sr. Julio Maria Sanguinetti Coirolo

    Sr. Andrés Aguilar Mawdsley, as President

    Any vacancies on the Commission shall be filled in accordance with Article II of the Treaty.

    3. The Commission is requested to determine the amount of compensation to be paid, ex gratia, by the Government of Chile to the Government of the United States, on behalf of the members of the families who were victims of the assassination and deaths of Orlando Letelier and Ronni Moffitt in Washington, D.C. on September 21, 1976, and for personal injuries sustained by Michael Moffitt.

    4. The Commission shall determine the amount of the payment to be made by the Government of Chile in accordance with applicable principles of international law, as though liability were established.

    5. The Commission shall determine its own procedures, except to the extent determined by the Parties in this Compromis.

    6. Presentations by the Parties to the Commission, including all claims and supporting evidence, shall be in writing only, and shall remain confidential. Personal appearances are deemed unnecessary.

    7. Following the Commission's organization, the Parties shall proceed as follows:

    a. Within thirty days of the entry into force of the Agreement in accordance with Paragraph 7 thereof, the United States shall file its presentation with the Commission.

    b. Within thirty days thereafter, the Government of Chile shall file with the Commission its observations on the presentation made by the United States, if any.

    c. Within ten days thereafter, the United States shall have the opportunity to comment on the observations offered by the Government of Chile.

    d. Within ten days thereafter, the Government of Chile shall have the opportunity to respond to the comments of the United States, if any.

    e. Within thirty days of the last filing of either Party with the Commission, the Commission shall convey to the Parties its determination on the amounts due from Chile in the ex gratia payment it has agreed to make.

    8. The Commission shall present its decision to the Parties at a meeting to be convened by the Commission in Washington, D.C. or Santiago.

    9. The Parties shall seek the good offices of the Inter-American Commission on Human Rights to provide the facilities for the work of the Commission.

    3.
    Mr. William Mulligan, originally designated by the Government of the United States as United States member of the Commission, resigned for reasons of health and, in accordance with the pertinent provisions of the Bryan-Suarez Mujica Treaty and of the Agreement entered into on June 11, 1990, was replaced by Mr. Malcolm Wilkey.
    4.
    The Commission, with only this change in its composition, convened formally on October 4, 1991, at the headquarters building of the Organization of American States in Washington, D. C., in a ceremony attended by the Secretary General of the Organization of American States, Ambassador Joao Clemente Baena Soares and by the Assistant Secretary General, Ambassador Christopher Thomas.
    5.
    In view of the fact that the Inter-American Commission on Human Rights was, at the request of the parties, making available its facilities for the Commission's work, it was unanimously decided to designate Ambassador Edith Marquez as Secretary of the Commission.
    6.
    At the first working session, after hearing the representatives of the parties, and in the interest of facilitating and expediting the proceedings, it was agreed, among other things, that Sundays as well as December 25, 1991, and January 1, 1992, were not to be counted in computing the time periods set in the Compromis.
    7.
    At the same session, the Agent for the United States of America, Mr. Edwin Williamson, formally delivered his country's presentation within the period prescribed in the Compromis.
    8.
    On November 7, 1991, the Government of Chile, through the Secretariat, delivered the text of its observations on the United States Presentation, also within the period prescribed in the Compromis.
    9.
    On November 19, 1991, the document containing the comments of the United States on the observations of the Government of Chile was received by the Secretariat.
    10.
    Finally, on November 30, 1991, the Government of Chile delivered to the Secretariat the document containing its observations on the comments of the United States.
    11.
    All of these documents, which were presented within the period prescribed in the Compromis, were sent by the Secretariat to all the members of the Commission.
    12.
    As had been agreed by its members, the Commission reconvened in Washington, D.C., on the afternoon of January 6, 1992, at the offices of the Inter-American Commission on Human Rights.
    13.
    The length of the documents submitted by the parties — 433 pages in all, without counting the annexes — together with the complexity of the matter and the fact that the time period of thirty (30) days set in paragraph 7(e) for announcement of the Commission's decision coincided with the period of the Christmas and New Year festivities, made it impossible for the Commission to present its decision within the period prescribed in the Compromis.
    14.
    By letter of January 7, 1992, the Commission informed the States Parties of this situation and of its intention of discharging its mandate in full in the course of the week. It also expressed its hope that neither State would have objections.
    15.
    By note dated January 9, 1992, the agent of the Government of Chile, Mr. Guillermo Piedrabuena, acknowledged receipt of the Commission's letter and communicated to the Commission that his Government had no objections to this extension.
    16.
    For his part, by note of January 10, 1992, Mr. Edwin D. Williamson, agent of the Government of the United States, reported that his Government had no objections to this extension.
    17.
    At its meeting on the afternoon of January 6, at morning and afternoon meetings held on January 7, 8, 9 and 10, and at a morning meeting held on January 11, 1992, the Commission carefully considered the documentation that had been submitted by the Parties.
    18.
    As a result of those deliberations, the Commission reached the following unanimous agreement.
    19.
    Before proceeding to a precise determination of the payments to be made to the members of the Letelier and Moffit families individually mentioned below, the Commission believes it advisable to indicate the general criteria that it has taken into consideration in setting the amount of those payments.
    20.
    It is necessary to remember, first of all, that according to paragraph 4 of the Compromis, the Commission is to determine the amount of the ex gratia payment to be made by the Government of Chile in conformity with the applicable principles of international law, as though liability were established.
    21.
    In this regard, the judgment handed down by the Permanent Court of International Justice in the Chorzow Factory case (Chorzow Factory, P.C.I.J. (ser. A) No. 17) cited by the United States and Chile in their respective written presentations, may be taken as enunciating a general rule. The pertinent portion of this judgment reads verbatim as follows: "(R)eparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed."
    22.
    The Commission has also kept in mind the need to apply the same rules to the members of the families of Orlando Letelier and of Ronni Moffitt, with no differentiation whatever by reason of their nationality.
    23.
    It should be pointed out that the Commission has followed the same criteria in examining the situation of each of the beneficiaries of these payments. In each of these cases, the Commission has examined the loss of financial support and services and the material and moral damages suffered by each of the claimant family members. The Commission has also examined the appropriateness of the expenses claimed in each case.
    24.
    In respect of interest the Commission has considered that since compensation for the above elements has been expressed at present value it is unnecessary to provide for the payment of interest.
    25.
    These general considerations having been presented, it is now appropriate to proceed to a precise determination of the amounts that in the judgment of the Commission should be paid by the Government of Chile to the various claimants.
    26.
    We will start with the Letelier family by first of all examining the amount of the compensation to be paid for the loss of financial support suffered by Mr. Letelier's widow and children.
    27.
    In order to calculate the amount due under this item, the Commission has taken into account what it considers to be the most likely assumption about the remainder of Mr. Letelier's working life had it not been cut short by the assassination to which he fell victim.
    28.
    The Commission examined various hypotheses. These included the possibility that Mr. Letelier would have continued at the Institute for Policy Studies (hereinafter referred to as "the IPS") for the remainder of his working life; that he would at some point, in view of his previous experience, have switched to a career as an international banker; and that he would have returned to Chile in 1990, on the restoration of democratic government there, and from then onwards have undertaken a career in Chilean public service in some such capacity as that of Minister of State, Ambassador or Senator.
    29.
    In reaching conclusions on this aspect the Commission took into account the salary and fringe benefits which Mr. Letelier would have received from 1976 until at least 1990 from the IPS and the sums which he would have received in that period for continuing to teach courses at the American University. It also took into account the amounts which would have been paid to him as salary and retirement pension for the remainder of his expectation of life (until 2007) had he returned to Chile in 1990 and worked in public service in one of the capacities referred to above. It did not include income from other sources such as conferences, lectures or publications because it considered that there were insufficient bases on which to establish such income in this case. Nor did the Commission include an award for the provision by Mr. Letelier of household services, such as carpentry, because it considered such activities on his part to be more in the nature of an occasional pastime to which it was not in a position to attribute a pecuniary value.
    30.
    Allowing for the uncertainties which must surround any attempt to predict the course which Mr. Letelier's life would have taken, the Commission decided in all the circumstances to award a sum of one million two hundred thousand dollars (US$1,200,000) as compensation for loss of financial support suffered by Mrs. Isabel Morel de Letelier and her sons as the result of the murder of Orlando Letelier.
    31.
    The Commission agreed on the payment of one hundred and sixty thousand dollars (US$160,000) in moral damages to Mrs. Isabel Morel de Letelier and eighty thousand dollars (US$80,000) to each of the couple's four children: Christian, Francisco, Jose, and Juan Pablo. In setting this figure, the Commission took into account, by way of comparison, the amounts granted for moral damages by jurisdictional organs of the inter-American system and those ordered, also in recent years, by arbitration or judicial tribunals. Needless to say, in making these comparisons, the factual differences between the cases that served as a guide in setting these amounts were borne in mind.
    32.
    Lastly, the Commission awarded Mrs. Isabel Morel de Letelier, as reimbursement of medical expenses for health problems resulting from the attack, the amount of sixteen thousand four hundred dollars (US$16,400).
    33.
    The Commission next considered the amount of compensation payable to Mr. Michael Moffitt and to Mr. Murray and his wife Hilda Karpen, widower and parents of Mrs. Ronni Moffitt, respectively.
    34.
    As compensation for loss of financial support resulting from the death of his wife, the Commission awarded Mr. Michael Moffitt the sum of two hundred and thirty-three thousand dollars (US$233,000). In arriving at this figure, the Commission considered that, given Mrs. Ronni's Moffitt's youth and brief working experience, it was difficult to make any fully reliable projections of her probable income. Obviously, in this case the speculative factor is much greater than in the preceding case. The Commission also took into account the fact that Mr. Moffitt had remarried and, accordingly, from the date of his remarriage onwards, he could not reasonably presume to have suffered loss from the share in common household expenses derived from the income of his first wife. Nevertheless, it did take into account, albeit for a limited period of time, the contribution that Mrs. Ronni Moffitt would very likely have made in the form of services in the home.
    35.
    In terms of moral damage, the Commission considered that, although a distinction may be drawn between the moral damage personally suffered by Mr. Michael Moffit as one of the victims of the attack in which he sustained personal injuries, and the damage caused by the loss of his wife, it was virtually impossible to assign a separate value to one or the other. Therefore, the Commission agreed on a total of two hundred and fifty thousand dollars (US$250,000) under this heading.
    36.
    The Commission also agreed to reimburse to Mr. Michael Moffitt the sum of twelve thousand dollars (US$12,000) in direct costs.
    37.
    Lastly, the Commission took up the claims for damage suffered by Mr. Murray Karpen and his wife Hilda Karpen, parents of Mrs. Ronni Moffitt.
    38.
    The Commission finds that, in its judgement, it had not been sufficiently shown that the direct cause of the health problems suffered by Mr. Murray Karpen is the attack in which his daughter died. Therefore, the Commission considers that the damage suffered by both parents was moral in character and that there were no grounds for differences to be drawn between one and the other in this respect. The Commission estimates the amount of indemnity payable under this heading to Murray and Hilda Karpen together at three hundred thousand dollars (US$300,000).
    39.
    The Commission also awards the amount of twenty thousand dollars (US$20,000) to Mr. and Mrs. Karpen for medical and other direct costs.
    40.
    The Commission has deemed it appropriate to grant compensation for special expenses which the families have jointly incurred as a consequence of the tragic events giving rise to this case in the amount of one hundred thousand four hundred ninety two dollars (US$100,492).
    41.
    In considering the compensation for moral damages the Commission has taken into account the significant steps undertaken by the Chilean Government and Congress to remedy human rights problems as well as the efforts undertaken towards financial reparation at the domestic level for families of victims.
    42.
    In making this award the Commission wishes to record its understanding that all outstanding claims against the State of Chile are considered, both by the United States Government in accordance with paragraph 6 of the Agreement of 11th June 1990 and by the families, to be satisfied and that therefore no other claims may be brought against Chile in this matter either before domestic courts or in international proceedings.
    43.
    All the figures mentioned above amount to a total of two million six hundred and eleven thousand eight hundred and ninety two dollars (US$2,611,892), which is the final amount of compensation to be paid by the State of Chile.
    44.
    At Washington, D.C., on January 11, 1992, eight identical copies of the present decision are hereby signed, one for each of the members of the Commission and the agents of the Governments of Chile and the United States of America and one which shall be placed on deposit with the Secretariat of the Commission. This document was signed in the respective English and Spanish versions, both of which shall be considered equally authentic.
    45.
    It is hereby noted that Professor Francisco Orrego Vicuna has issued an opinion, attached hereto, concurring with the ruling of this Commission.
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