-82mechanisms to look for the children;
b)
“Even though the family nucleus of the Serrano Cruz family can be
considered extensive, including the siblings of the children, Erlinda and
Ernestina, for the effects of the judgment […] the following siblings should not
be considered next of kin affected by the disputed facts: Fernando Serrano
Cruz, Enrique Serrano Cruz (deceased), Martha Serrano Cruz, Arnulfo Serrano
Cruz, Oscar Serrano Cruz and Rosa Serrano Cruz, because it has not been
proved that they were affected by the alleged disappearance of their sisters[;
because] this cannot be presumed as they did not testify and neither was
their alleged suffering confirmed”; and
c)
“With regard to the non-pecuniary damage, [it] considers that the
Court should establish this, if it has jurisdiction to do so.”
Considerations of the Court
156. Non-pecuniary damage can include the suffering and hardship caused to the
direct victims and to their next of kin, the harm of objects of value that are very
significant to the individual, and also changes, of a non-pecuniary nature, in the
living conditions of the victims. Since it is not possible to allocate a precise monetary
equivalent to non-pecuniary damage, it can only be compensated in two ways in
order to make integral reparation to the victims. First, by the payment of a sum of
money that the Court decides by the reasonable exercise of judicial discretion and in
terms of fairness. Second, by performing acts or implementing projects with public
recognition or repercussion, such as broadcasting a message that officially condemns
the human rights violations in question and makes a commitment to efforts designed
to ensure that it does not happen again. Such acts have the effect of restoring the
memory of the victims, acknowledging their dignity, and consoling their next of kin.45
The first aspect of reparation for non-pecuniary damage will be considered in this
section and the second in section (D) of this chapter
157. International case law has established repeatedly that the judgment
constitutes, per se, a form of reparation.46 However, owing to the circumstances of
the case sub judice, the sufferings that the facts caused to the persons who have
been declared victims in this case and their next of kin, the change in the living
conditions of all of them, and the other consequences of a non-pecuniary nature that
they suffered, the Court considers it pertinent that compensation should be paid, in
fairness, for non-pecuniary damage.
158. The non-pecuniary damage to the Serrano Cruz sisters and their next of kin is
evident, because the absence of a serious and diligent investigation by the State
authorities to determine what happened to them and, if appropriate, identify and
punish those responsible, and the failure to adopt adequate measures that would
help determine their whereabouts, prevented the emotional recovery of the next of
kin and caused all of them non-pecuniary damage.
45
Cf. Case of the Plan de Sánchez Massacre. Reparations, supra note 3, para. 80; Case of Tibi,
supra note 20, para. 242; and Case of the “Juvenile Reeducation Institute”, supra note 9, para. 295.
46
Cf. Case of Lori Berenson Mejía, supra note 3, para. 235; Case of Carpio Nicolle et al., supra note
3, para. 117; and Case of the Plan de Sánchez Massacre. Reparations, supra note 3, para. 81.