forms of reparation that satisfy the criteria of objectivity, reasonability and effectiveness to
properly repair the violations of rights declared, such procedures and their results can be
assessed. If those mechanisms do not meet such criteria, it is up to the Court, in exercise of
its subsidiary and complementary competence, to order the pertinent reparations, since the
victims or their families must have ample opportunities to obtain fair compensation. However,
such proceedings would be relevant and valuable only in cases where they have been
effectively attempted by the persons affected by violations of their rights or by their relatives
(supra para. 25).
300.
In the instant case, Mrs. Chinchilla’s next of kin did not attempt the remedy of an
ordinary lawsuit to claim damages, mentioned by the State, and therefore did not obtain any
appreciable result. Thus, the State’s argument has already been settled in relation to the
preliminary objection (supra paras. 25 to 27). Consequently, the Court will proceed to analyze
the requests for compensation for pecuniary and non-pecuniary damage and will rule
appropriately. Likewise, the Court reiterates the compensatory nature of the indemnities; their
nature and amount depend on the damage caused, and are not supposed to enrich or
impoverish the victim or her heirs.372
D.1 Pecuniary damage
301.
The representatives indicated that “to calculate pecuniary damage it is necessary
to take into account the situation of the person deprived of liberty and the income that she
earned in that condition, which in no case can be lower than the current minimum living wage
in Guatemala at that time, indexed to the current rate, for the years of life expectancy.”
Subsequently, based on the calculations contained in their final written arguments, 373 the
representatives estimated that it would be appropriate to order the State to pay the sum of
Q. 3,947,889.15 (Guatemalan quetzales) for pecuniary damage.
302.
The State argued that, on previous occasions, the Court “has refrained from
ordering measures of reparation for pecuniary damage when there is no legitimate reason on
the part of the petitioners to claim compensation [,] a situation that applies to this case, since
there was no criminal act to prosecute, and the petitioners have not claimed or presented any
Cf. Case of the “White Van” (Paniagua Morales et al.), supra, para. 79, and Case García Ibarra et al. v.
Ecuador, supra, para. 189.
372
The following items together, described in Annex 8 to the representatives’ brief of final arguments, make up
the total amount of Q.2,791,219.52 for pecuniary damage, as follows:
373
1.
Loss of profits: Q.2,093,212.21. The amount was calculated based on an estimated annual salary of
Q.$25,500.00 (including bonus 14 and Christmas bonus) over 26 years–Mrs. Chinchilla’s life expectancy, had she
been granted the benefit an alternative custodial measure from 2002 and until 2028–, plus the corresponding
inflation rate and the active bank interest rate.
2.
Loss of education: Q.7,669. 62 (refers to the fact that “during the time that she was serving her sentence
for the crimes committed, the victim was prevented from attending university and obtaining the relevant academic
diplomas. Also, to resume her life project, she should at least have continued her studies until graduating with a
diploma in business administration which, considering that she studied at the Universidad Galileo, implies the sum
of approximately [the amount indicated]”).
3.
Food expenses: Q.180, 354.67 (refers to expenses incurred for food during Mrs. Chinchilla’s incarceration).
4.
Expenses for moving into “protective” housing: Q.7, 986.91 (expenses incurred “to avoid having to live in
the precarious conditions offered in Guatemalan prisons”).
5.
Medical Expenses: Q.227, 374.01 (“Medical Expenses for treating the victim’s illness”).
6.
Psychological damage (Diagnosis of parents, children, mother and grandson): Q.62,400.00 (refers to
expenses for psychological diagnosis and treatment of Mrs. Chinchilla’s parents, children and grandchildren).
7.
Psychiatric and/or psychological effects (therapy for siblings): Q.35, 700.00 (indicated as expenses incurred
“for treatment with medicines”).
8.
Expenses related to “child support and education costs” of Mrs. Chinchilla’s daughter. Child support for Flor
de María Juárez Chinchilla (14 years – 18 years): Q. 81,480.75 and Luis Mariano Juárez Chinchilla (12 years – 18
years): Q. 102,710.97 (expenses related to “child support and education expenses” of Mrs. Chinchilla’s son).
92