88
instead of receiving support in face of what happened, they were isolated and
mistreated by many, forcing them to leave their village.
Pleadings of the Commission
170.
With respect to non-pecuniary damage the Commission pointed out that:
a)
the loss of a next of kin causes emotional suffering and grief to all
members of the immediate family;
b)
both Humberto Sánchez and the members of his immediate family
have undergone moral suffering, feelings of insecurity, frustration and
powerlessness as a consequence of the facts of the case, a situation that
must be compensated for by the State; and
c)
elimination and “cutting short” of the life options of Juan Humberto
Sánchez is an item neither of pecuniary nor of non-pecuniary damage. The
determination of damages must be based on a comprehensive, and not only
patrimonial perspective, and in this regard, the State must pay an amount in
fairness for its responsibility in depriving the victim of his life project.
Pleadings of the State
171. As stated above (supra 160), the State argued that “it is not under the
obligation to redress the ‘alleged violation’ to the next of kin of the ‘alleged victim,’
as it is not responsible” for the facts alleged.
Considerations of the Court
172. International case law has repeatedly pointed out that a condemnatory
judgment is per se a form of reparation.175 However, due to the grave circumstances
of the instant case, the intensity of the suffering caused to the victim, Juan
Humberto Sánchez, by the respective facts, and that they also caused suffering to
his next of kin, alterations of the conditions of existence of his next of kin and the
other non-pecuniary consequences caused to the latter, the Court deems that it
must order a compensation for non-pecuniary damage, in fairness.176
173. In the sub judice case, the representatives of the victim and the Commission
referred to various types of non-pecuniary damage caused to Juan Humberto
175
Cf. Trujillo Oroza Case, Reparations, supra note 22, para. 83; Bámaca Velásquez Case,
Reparations, supra note 153, para. 60; Cantoral Benavides Case, Reparations, supra note 125, para. 57;
Case of the Mayagna (Sumo) Awas Tingni Community, supra note 3, para. 166; Caso Cesti Hurtado.
Reparations (Art. 63(1) American Convention on Human Rights). Judgment of May 31, 2001. Series C No.
78, para. 51; “Street Children” Case (Villagrán Morales et al.), Reparations, supra note 125, para. 88; and
Case of the “White Van” (Paniagua Morales et al.), Reparations, supra note 125, para. 105. Likewise, cf.
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., Mc Callum judgment of
30 August 1990, Series A no. 183, para. 37.
176
Cf. El Caracazo Case, Reparations, supra note 4, para. 99; Trujillo Oroza Case, Reparations, supra
note 22, para. 83; and Bámaca Velásquez Case. Reparations, supra note 153, para. 60.
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