136
(b)
Regarding the amounts of the compensation to which the victims and
their next of kin have a right for non-pecuniary damage, their representatives
are in a better position to quantify their claims; and
(c)
The damage arising from the Ituango massacres had diverse
consequences, including: physical and mental damage inflicted on the direct
victims; moral damage inflicted on their close family; a detrimental effect on
the material conditions of the next of kin of the victims who were executed,
and the fear of the inhabitants.
The representatives’ arguments
381. In the case of non-pecuniary damage, the representatives requested the
Court to order the payment of compensation for non-pecuniary damage in favor of
the victims and their next of kin, calculated on grounds of equity, to provide integral
reparation for the humiliation and cruelty to which the victims were subjected, such
as forced displacement, theft, forced labor, torture and violation of the right to life.
The State’s arguments
382. Regarding non-pecuniary damage, the State indicated that the reparations
agreed to by the State during the conciliation hearings in the administrative
jurisdiction should be considered equitable and sufficient, in relation to the rights to
life and property.
The Court’s findings
383. Non-pecuniary damage can include the suffering and hardship caused to the
direct victims, 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 for non-pecuniary
damage, it can only be compensated in two ways in order to provide comprehensive
reparation to the victims. First, by the payment of a sum of money determined by
the Court by the reasonable exercise of judicial discretion and based on the principle
of equity. And, second, by acts or 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 it does not
happen again, and have the effect of recovering the memory of the victims,
acknowledging their dignity and consoling their next of kin.271 The first aspect of the
reparation of non-pecuniary damage is examined in this section and the second in
the section on other forms of reparation in this chapter.
384. As the Court has indicated in other cases,272 the non-pecuniary damage
inflicted on the victims is evident, because it is inherent in human nature that all
those subjected to brutal acts in the context of this case experienced intense
suffering, anguish, terror and insecurity, so that this damage does not have to be
proved.
271
Cf. Case of Baldeón García, supra note 5, para. 188; Case of the Sawhoyamaxa Indigenous
Community, supra note 9, para. 219; and Case of Acevedo Jaramillo et al., supra note 12, para. 308.
272
Cf. Case of the Pueblo Bello Massacre, supra note 9, para. 255; Case of the “Mapiripán
Massacre”, supra note 8, para. 283; and Case of Tibi, supra note 176, para. 244.
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