109
Bámaca Velásquez, this amount to be distributed among Jennifer Harbury, José León
Bámaca Hernández, Egidia Gebia and Josefina, both Bámaca Velásquez. They
further requested US$80,000.00 (eighty thousand United States dollars) for moral
damages to Jennifer Harbury, US$50,000.00 (fifty thousand United States dollars)
for those to José León Bámaca Hernández, and US$30,000.00 (thirty thousand
United States dollars) to each of the sisters of the victim.
Arguments of the Commission
58.
The Commission agrees with the essence of the arguments of the representatives of
the victims, as well as with the amounts requested.
Arguments of the State
59.
The State expressed that it shared the view of the Commission that it is
difficult to calculate the moral detriment to the victims; nevertheless, it argued that,
as there was no strong emotional tie between Mr. Bámaca Velásquez and his next of
kin, compensation should be set at Q50,000.00 (fifty thousand quetzales) for “the
direct victims” and Q25,000.00 (twenty-five thousand quetzales) for the father and
sisters of the victims, for a total sum of Q125,000.00 (one hundred and twenty-five
thousand quetzales).
Considerations of the Court
60.
International case law has repeatedly stated that conviction is per se a form
of reparation.61 However, due to the grave circumstances of the instant case, the
intensity of the suffering that the respective facts caused to the victim, Efraín
Bámaca Velásquez, and also to his next of kin, alterations of the conditions of
existence of the victim and his next of kin, and other non pecuniary or non monetary
consequences caused to the latter, the Court deems that it must order payment of
compensation for non-pecuniary damages, in accordance with equity.62
61.
In the sub judice case, the representatives of the victims and the Commission
referred to various types of non pecuniary damages caused by the facts in the
instant case to Mr. Bámaca Velásquez and his next of kin: the physical and
psychological suffering of the deceased victim; the phenomenon of forced
disappearance and its aftermath of detention, torture, denial of justice, lack of
investigation of the facts and of punishment of those responsible, and not knowing
the whereabouts of the mortal remains of Mr. Bámaca Velásquez, have caused
61
See Cantoral Benavides Case, Reparations, supra note 5, para. 57; Mayagna (Sumo) Awas Tingni
Community Case, supra note 7, para. 166; Cesti Hurtado Case, Reparations, supra note 5, para. 51;
Villagrán Morales et al. Case, Reparations, supra note 5, para. 88; and Paniagua Morales et al. Case,
Reparations, supra note 5, para. 105. In this same sense, see Eur. Court HR, Ruiz Torija v. Spain
judgment of 9 December 1994, Series A no. 303-A, para. 33; Eur. Court HR, Boner v. the United Kingdom
judgment of 28 October 1994, Series A no. 300-B, para. 46; Eur. Court HR, Kroon and Others v. the
Netherlands judgment of 27 October 1994, Series A no. 297-C, para. 45; Eur Court H.R., Darby judgment
of 23 October 1990, Series A no. 187, para. 40; Eur. Court H.R., Wassink judgment of 27 September
1990, Series A no. 185-A, para. 41; Eur. Court H.R., Koendjbiharie, judgment of 25 October 1990, Series
A no. 185-B, para. 34; and Eur. Court H.R., McCallum judgment of 30 August 1990, Series A no. 183,
para. 37.
62
See Cantoral Benavides Case, Reparations, supra note 5, para. 57; Mayagna (Sumo) Awas Tingni
Community Case, supra note 7, para. 167; and Cesti Hurtado Case, Reparations, supra note 5, para. 51.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents