88
Furthermore, the Court notes that both Mrs. Fernández Ortega and Mr. Prisciliano
Sierra stopped working on their land to seek justice in this case. Consequently, it
can be supposed that the effects of the rape resulted in their inactivity at similar
moments and for similar times. Notwithstanding the foregoing, the Court
underscores that it awarded an amount, in equity, for the loss of earnings of Mrs.
Fernández Ortega and Mr. Prisciliano Sierra (supra para. 286), based on the annual
value of the harvest produced from their plot of land, which corresponds to the
production of both spouses. Therefore, it does not find it pertinent to award another
sum for the same reason.
ii) Non-pecuniary damage
289. The Court has developed in its jurisprudence the concept of non-pecuniary
damage and the assumptions under which it must be compensated. The Court has
established that the non-pecuniary damage consists of “the suffering and harm
caused to the victim, directly, as well as to said victim’s relatives, the erosion of
meaningful values to persons, as well as the alteration, of a non-pecuniary nature,
to the living conditions of the victim and next of kin.”266
290. The Commission asked the Court to establish in equity the amount of the
compensation for non-pecuniary damage, based on the nature of the case and the
gravity of the damage suffered by the victims.
291. The representatives indicated that the rape of Mrs. Fernández Ortega by the
soldiers resulted in numerous repercussions on her life and her personal integrity
that must be repaired. In this regard, they mentioned that Mrs. Fernandez Ortega:
i) lives in a constant state of terror, as a consequence of the rape, with feelings of
sadness, guilt, and shame; ii) feels defenseless and desperate because of the lack
of justice, feelings which have been aggravated by the handling of the case in the
military forum, and because she was exposed to the insensibility, indifference, and
disrespect by the justice officials, and iii) has suffered the stigmatization and
rejection by her community which have caused her feelings of defenselessness and
frustration, among others. Accordingly, they asked that the Court orders the State
to repair the damage caused to Mrs. Fernández Ortega owing to the distress
resulting from her rape and the impunity, and that it establishes, in equity, a sum
in this regard. Furthermore, they stated that Mrs. Fernández Ortega’s family has
also been subjected to serious harm as a result of what happened to the victim and
of the lack of justice, particularly her daughter Noemí Prisciliano Fernández.
Therefore, they asked that the Mexican State be ordered to repair the damage
caused to Mrs. Fernández Ortega’s family and that the Court decide, in equity, a
financial reparation in this regard.
292. International jurisprudence has repeatedly established that the Judgment
may constitute per se a form of reparation.267 However, considering the
circumstances of the case sub judice, the suffering that the violations committed
caused the victims, as well as the alterations in their living conditions, and the
other consequences of a non-pecuniary nature that they experienced, the Court
finds it pertinent to establish a sum, in equity, as compensation for non-pecuniary
damage.268
266
The “Street Children” (Villagrán Morales et al.) v. Guatemala. Reparations and costs. Judgment
of May 26, 2001. Series C No. 77, para. 84; Case of Chitay Nech et al., supra note 18, para. 273, and
Case of Manuel Cepeda Vargas, supra note 18, para. 242.
267
Cf. Case of Neira Alegría et al. v. Perú. Reparations and Costs. Judgment of September 19,
1996. Series C No. 29, para. 56; Case of Chitay Nech et al., supra note 18, para. 275, and Case of
Manuel Cepeda Vargas, supra note 18, Operative Paragraph 7.
268
Cf. Case of Neira Alegría et al., supra note 267, para. 56; Case of Radilla, supra note 33, para.
374, and Case of Chitay Nech et al., supra note 18, para. 275.
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