8
V
35.
In the operative part of the judgment of January 19, 1995, the Court decided that
“Peru is obliged to pay fair compensation to the next of kin of the victims on the occasion of
these proceedings and to reimburse the expenditures that they have incurred in their
petitions before the national authorities.” However, the parties disagree on the amount of
the compensation and expenditures. The Court will rule on that controversy in the present
judgment.
36.
The provision applicable to reparations is Article 63(1) of the American Convention,
which reads as follows:
1. If the Court finds that there has been a violation of a right or freedom protected by this
Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or
freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure
or situation that constituted the breach of such right or freedom be remedied and that fair
compensation be paid to the injured party.
The provisions of this article contain one of the fundamental principles of international law,
as has been recognized in case law (Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927,
P.C.I.J., Series A, No. 9, page 21, and Factory at Chorzów, Merits, Judgment No. 13, 1928,
P.C.I.J., Series A, No. 17, page 29; Reparation for Injuries Suffered in the Service of the
United Nations, Advisory Opinion, I.C.J. Reports 1949, page 184). It has been applied thus
by this Court (Velásquez Rodríguez Case, Compensatory Damages [Art. 63(1) of the
American Convention on Human Rights], Judgment of July 21, 1989. Series C No. 7, para.
25; Godínez Cruz Case, Compensatory Damages [Art. 63(1) of the American Convention on
Human Rights], Judgment of July 21, 1989, Series C No. 8, para. 23; Aloeboetoe et al.
Case, Reparations [Art. 63(1) of the American Convention on Human Rights], Judgment of
September 10, 1993, Series C No. 15, para. 43, and El Amparo Case. Reparations [Art.
63(1) of the American Convention on Human Rights], Judgment of September 14, 1996,
Series C No. 28, para. 14).
37.
By virtue of the above, the obligation to make reparation is governed by international
law in all of its aspects, such as its scope, characteristics, beneficiaries, etc., and may not be
subject to modification or suspension by the respondent State through invocation of
provisions of its own domestic law (Aloeboetoe et al. Case, Reparations, supra 9, para. 44,
and El Amparo Case, Reparations, supra 36, para. 15).
38.
Inasmuch as the rule of “restitutio in integrum” cannot be applied in a case in which
the right to life has been violated, alternative forms of reparation, such as pecuniary
compensation, must of necessity be sought for the victims' next of kin and dependents.
Such compensation primarily covers actual damages suffered and, as this Court has
declared on a previous occasion, comprises both material and moral damages (see
Aloeboetoe et al. Case, Reparations, supra 9, paras. 47 and 49, and El Amparo Case,
Reparations, supra 36, para. 15).
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