34
116. The Court has developed the concept of non-pecuniary damages in its
jurisprudence, along with the circumstances under which it should be indemnified.108
117. The Commission did not request a specific amount of non-pecuniary damages for
the victims. It only indicated that “in keeping with standard practice, it is up to the Court
to establish the corresponding amounts based on the available information and in
equity.” For his part, the representative indicated that the victims had been subject to
“psychological and/or emotional suffering and claimed a compensation of US$70,000
(seventy thousand American dollars) per [...] victim, that being a total of
US$16,310,000 (sixteen million, three hundred and ten thousand American dollars). In
response, the State “indicat[ed] its profound disagreement with the high [amount
requested]” and asked the Court to “grant the amount of one thousand dollars each,”
indicating that “these kinds of demands look to turn the [...] Court into an economic
court, which is not consistent with the purpose of its operation.” The State continued
that, “these kinds of reparations must be just and in line with the object of the dispute.
In no way should they imply economic hardship for the State or unjustified enrichment
for the alleged victims.”
118. Based on the claims of the representative, the Tribunal will move to determine
the possible generation of non-pecuniary damages through a) the alleged effects of the
excessive duration of the proceedings on the victims; b) the alleged retaliation against
some of the victims; c) the alleged “reckless conduct” of the State on not reaching an
agreement in the friendly settlement process and for questioning the reparatory amounts
proposed by the representative; d) the alleged effects on victims’ life plans, and e) final
considerations of the Tribunal on non-pecuniary damages in this case.
c.2.1 The alleged effects of the excessive duration of the proceedings on the
victims
119. The representative indicated that to determine non-pecuniary damages, it has
taken into consideration the fact that the workers have been subject to psychological
and/or emotional suffering that include [...] anguish, uncertainty, expectations, and
frustration over “a judicial process of extraordinary duration - more than seventeen (17)
years - in order to get recognition of their rights and payment of the reparations that
they are legitimately owed.”
120. With respect to this, the Court finds that based on the duration of the domestic
and international proceedings corresponding to this case, the 233 victims have been
affected in a variety of ways. However, the Tribunal observes that the merits of this case
have focused on a violation of the rights to judicial protection and to property (supra
para. 76 and 85) A violation related to an unreasonable duration of judicial proceedings
has not been declared in this case. Separately, following the acknowledgment of
responsibility made by the State in 2002, the delay has been over an agreement
between the parties on the amount regarding the reparations due. However, this is not
necessarily a factor for which the State is responsible and which could be relevant for the
determination of non-pecuniary damages.
c.2.2
The alleged retaliation against some of the victims
121. The representative also indicated that it must be taken into consideration that the
225 workers who were plaintiffs in the initial proceeding - 185 of whom are victims in
108
The Tribunal has established that non-pecuniary damages “may include distress and suffering caused
directly to the victims or their relatives, tampering with individual core values, and changes of a non pecuniary
nature in the living conditions of the victims or their families.” Case of the “Street Children” (Villagrán-Morales
et al.) v. Guatemala. Reparations and Costs, supra note 243, para. 84; Case of Gomes Lund et al (Guerrilha do
Araguaia), supra note 17, para. 305, and Case of Cabrera García and Montiel Flores, supra note 17, para. 255.