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to the household budget and is perfectly adequate to compensate for the loss
suffered, thus avoiding unjust enrichment.
c)
In relation to non-pecuniary damage:
i.
Albertina Viana-Lopes filed a civil action for “moral damages” against
private individuals rather than the State. Such proceeding was stayed until
the criminal case would be adjudicated. There is a possibility of bis in idem
occurring in the instant case, provided that damages are awarded in the civil
action and the defendant pays compensation and the Court simultaneously
orders the State to pay compensation for “moral damages” to Mrs. VianaLopes. Therefore, the same loss would thus be twice compensated for;
ii.
Mr. Cosme Ximenes-Lopes has not learned of the death of his brother,
and there can be no moral damage caused by that which is unnoticed;
iii.
Irene Ximenes-Lopes-Miranda cannot be considered to be directly
affected, as she did not have a close relationship with Mr. Damião XimenesLopes.
iv.
Damião Ximenes-Lopes’ father had no father-to-son relationship with
the victim, so he is not entitled to any compensation for non-pecuniary
damage;
v.
Mr. Damião Ximenes-Lopes had nine siblings. In accordance with the
concept of “fair justice,” payment of compensation for moral damage to only
two siblings is inadmissible. There is no way to measure the grief suffered
when a next of kin dies, so in assessing the reparation of the pain and
suffering, a judge should use the same criteria for all the siblings, and
vi.
it has recognized the existence of “moral damages” and its duty to
provide monetary compensation for Mr. Damião Ximenes-Lopes’ mother, so
it has paid just compensation in the domestic system, through the payment of
a state death pension in addition to the federal government death pension for
the life of Albertina Viana-Lopes, both of which should be considered by the
Court. Mrs. Viana-Lopes has already been compensated for the moral and
pecuniary damage caused. The rest of the victim’s next of kin identified by
the Commission and the representatives are naturally eligible to be awarded
the remaining forms of reparation.
d)
In relation to other forms of reparation, the State argued that it had adopted
all steps expected from a constitutional democratic State in order to prevent
events such as those suffered by Mr. Damião Ximenes-Lopes from happening
again. It has adopted several measures in the Municipality of Sobral, among
which are the specialized units for the treatment of persons with a variety of
diseases. Likewise, it has adopted, inter alia, measures at the domestic level,
such as passing Law No. 10,216 in 2001, known as the “Law of Psychiatric
Reform;” it has held a seminar on the “Right to Mental Health — regulation
and application of Law No. 10,216,” and implemented several programs
concerning health services. Finally, the State pointed out that it has made
symbolic reparations by renaming the Sobral Psychosocial Care Center
(CAPS) after the victim, “Damião Ximenes-Lopes Psychosocial Care Center,”
holding the Third National Mental Health Conference at the now named
Damião Ximenes-Lopes Hall, and publicly stating at the hearing held before
the Court, the partial recognition of its international liability for the violation
of rights set forth in Articles 4 and 5 of the American Convention.
e)
In relation to the expenses and court costs, it argued that there are no
grounds for compensating the next of kin of Mr. Damião Ximenes-Lopes at