72
D.2
Non-pecuniary damage
273. The Court has developed in its jurisprudence, the concept of non-pecuniary damage
and the situations in which it shall be compensated.275
274. The Commission requested the Tribunal to “adequately repair the next of kin of the
victim, and to include the moral as well as the material aspect.” The representatives
requested the Court to order the State to pay US$80,000.00 (eighty thousand Dollars of
the United States of America) exempt from any encumbrance or tax in favor of Florencio
Chitay Nech and payable in equal parts among his children, in virtue of the non-pecuniary
damage that he suffered due to the forced disappearance to which he was submitted.
They also requested the payment of US$50,000.00 (fifty thousand Dollars of the United
States of America) for each one of the next of kin276 for the suffering that the forced
disappearance of their father generated and its consequences. Also, in the final arguments
they asked that the State grant an additional quantity of US$50,000.00 (fifty thousand
dollars of the United States of America) to Encarnación Chitay because “during all these
years he has felt guilty for not accompanying Mr. Chitay Nech on the day of his
disappearance.” Furthermore, they requested the additional sum of US$50,000.00 (fifty
thousand dollars of the United States of America) in favor of Estermerio Chitay, because
“he was with [Mr. Chitay Nech] on the day that he was kidnapped[, and also] of the
anguish that he felt when he saw that [his father] was captured, and physically assaulted.”
For its part, the State made illusion to its economic situation as well as to PNR in the
manner that it was referred to previously. (supra para. 15).
275. The international jurisprudence has established repeatedly that a judgment can
constitute a per se form of reparation.277 Notwithstanding, considering the circumstances of
the case sub judice, the suffering caused by the violations committed to the victims, as
well as the change to their lifestyle conditions and the rest of the pecuniary or nonpecuniary damages that they suffered as a consequence of the violations declared to the
detriment of the Chitay Rodriguez siblings of Articles 5(1), 17, 22, 8(1) and 25(1) of the
Convention, as well as the effects derived from Article 19 of the same, the Court finds it
pertinent to fix a quantity, in equity, as compensation for non-pecuniary damages.278
276. In that regard, the Tribunal considers, as has been signaled in other cases,279 that
the non-pecuniary damages inflicted on Florencio Chitay Nech are evident, and it is human
275
The Court has established that nonpecuniary harm “can be composed of the suffering and harm caused to
the victim directly and those allegad, the impairment of significative value to persons, such as alterations, of a
nonpecuniary nature, to their living conditions of the victim or family.” Case of the “Children of the Street”
(Villagrán Morales et. al. ) V. Guatemala. Reparations and Costs, supra note 243, para. 84; Case Radilla Pacheco V.
México, supra note 12, para. 271, and Case Dos Erres Massacre V. Guatemala, supra note 12, para. 255.
276
The representatives pointed out as next of kin Encarnación, Pedro, Eliseo, Estermerio and Maria Rosaura,
all with the last of Chitay Nech, as well as Marta Rodríguez Quex. Likewise, they requested the awarded amount to
be distributed equally, among all their offspring.
277
Cf. Case Neira Alegría et. al. V. Perú. Reparations and Costs, supra note 252, para. 56; Case Radilla
Pacheco V. México, supra note 12, para. 374, and Case Dos Erres Massacre V. Guatemala, supra note 12, para.
290.
278
Cf. Case Neira Alegría et. al. V. Perú. Reparations and Costs, supra note 252, para. 56; Case Garibaldi V.
Brasil, supra note 18, para. 193, and Case Radilla Pacheco V. México, supra note 12, para. 374.
279
Cf. Case Neira Alegría et. al. V. Perú. Reparations and Costs, supra note 252, para. 56; Case Garibaldi V.
Brasil, supra note 18, para. 193, and Case Radilla Pacheco V. México, supra note 12, para. 374.
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