30
which can be attributed to the State and constitute gross violations of international human
rights law or serious violations of international humanitarian law. 114
99.
Reparations are crucial in ensuring that justice is done in a given case. 115 The
interpretation and scope that the inter-American human rights system has attributed to this principle
is that reparation of harm brought about by the violation of an international obligation consists in full
restitution (restitutio in integrum), which includes “the restoration of the prior situation, the
reparation of the consequences of the violation, and indemnification for patrimonial and nonpatrimonial damages, including emotional harm.” 116
100. However, the injured party cannot always be afforded in integrum restitution of his
or her violated right, in which case it is proper that “reparation be made for the consequences of the
violation of the rights (…), including the payment of fair compensation.” 117 In a case involving
forced disappearance, the Court held that:
The desired aim is full restitution for the injury suffered. This is something that is
unfortunately often impossible to achieve, given the irreversible nature of the damages
suffered, which is demonstrated in the instance case. Under such circumstances, it is
appropriate to fix the payment of "fair compensation" in sufficiently broad terms in order to
compensate, to the extent possible, for the loss suffered. 118
101. In a case involving torture that the Commission recently submitted to the Court, it
argued that where restitution in integrum is not possible, it is for the international court to determine
a set of measures, “in addition to ensuring the rights abridged, to address the consequences of the
infractions, as well as ordering payment of a compensation for the damage caused.” 119
102. It is self-evident that in the instant case, restitutio in integrum is not possible as the
physical and psychological effects that Mr. García Lucero and his family have suffered as a
consequence of his torture and forced exile are irreversible. The question that needs to be
answered, therefore, is the following: what are the adequate and effective measures to be taken in
the instant case and, on that basis, measure Chile’s compliance with its obligation to make
comprehensive reparations, as an essential element of its obligation to ensure.
114
Annex 26. UN, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, General Assembly
Resolution 60/147, December 16, 2005, para. 15.
115
IACHR, Application with the I/A Court H.R. in the Case of Teodoro Cabrera García and Rodolfo Montiel Flores
(Case 12.449) v. Mexico, June 24, 2009, para. 175.
116
I/A Court H.R., Case of Velásquez Rodríguez v. Honduras. Reparations and Costs. Judgment of July 21, 1989.
Series C No. 7, para. 26; I/A Court H.R., Case of Godínez Cruz v. Honduras. Reparations and Costs. Judgment of July 21,
1989. Series C No. 8, para. 24.
117
para. 92.
I/A Court H.R., Case of Castillo Páez v. Peru. Merits. Judgment of November 3, 1997. Series C No. 34,
I/A Court H.R., Case of Velásquez Rodríguez v. Honduras. Interpretation of the Judgment of Reparations and
Costs. Judgment of August 17,1990. Series C No. 9, para. 27; I/A Court H.R., Case of Godínez Cruz Vs. Honduras.
Interpretation of the Judgment of Reparations and Costs. Judgment of August 17, 1990. Series C No. 10, para. 27.
118
119
IACHR, Application with the I/A Court H.R. in the Case of Teodoro Cabrera García and Rodolfo Montiel Flores
(Case 12.449) v. Mexico, June 24, 2009, para. 176, citing the case law of the Inter-American Court of Human Rights in the
follow cases: I/A Court H.R., Case of La Cantuta Vs. Peru. Merits, Reparations and Costs. Judgment of November 29, 2006.
Series C No. 162, para. 201; I/A Court H.R., Case of the Miguel Castro Castro Prison v. Peru. Merits, Reparations and Costs.
Judgment of November 25, 2006. Series C No. 160, para. 415; I/A Court H.R., Case of the Dismissed Congressional
Employees (Aguado Alfaro et al.) v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 24,
2006. Series C No. 158, para. 143.