37
Community has not been considered victim in the Commission's application in accordance
with Article 44 of the Convention, "and that it was neither mentioned, along the procedure."
131. As pointed out by the Court in the previous paragraphs, the members of the
Indigenous Community were not identified as victims in the Commission’s application, as a
result of which they have not been victims in the present Judgment and, consequently, will
not be considered “injured party” under the terms of Article 63(1) of the Convention.
However, the Court emphasizes that several of the measures for reparations which also
constitute guarantees for non-repetition are general in nature and thus, will influence in the
Community’s members.
B)
Compensation
132. The Court’s case law has developed the concept of pecuniary damage and the cases
in which compensation therefore is due.118
133. In the instant case, the Commission stated that the victims “were forced to make
substantial economic efforts to search for justice at the domestic level and to overcome the
physical, mental and moral trauma provoked by the acts of the Colombian State."
134. Moreover, the representative requested the Court to order the State to compensate
the victim’s next of kin on account of the expenses incurred, which would include “the
funerary rites, transportation, costs for the removal of the body from the place of the
execution up to the Community” as well as the additional expenses related to all the nonjudicial proceedings carried out "with the purpose of filing a complaint for the events" and
those expenses necessary to request justice from the authorities. The representatives also
requested compensation for “the loss of the communal store of the Escué Zapatas.” At the
same time, they requested financial reparations for the family on account of the “travel
expenses, food, photocopies, faxes, telephone calls and all type of documentation" related
to the "search for the truth in the procedures, in the investigative activities and expediting
of the proceedings”, on which they were assessed by the Collective Lawyers' Association
"José Alvear Restrepo." Lastly, they alleged that the family has incurred in financial
expenses as a result of the suffering, anguish and insecurity, both mentally and
emotionally, for the loss of the victim. They specifically mentioned that the family, specially
the parents, “had to receive medical treatment […] for the impact occasioned by the facts
and in particularly, for the way the victim was torture[d] and murdere[d]." They requested
that the State pay a total sum of US$ 50.000 (fifty thousand United States dollars) for the
benefit of the victim's parents and siblings and the same amount of money for the benefit of
the victim's permanent companion and daughter.
135. The State suggested a domestic method of negotiation between the parties in order
to reach an agreement over the compensation “based on the verification of the damages
suffered by the dead victim and his relatives” and in the case they do not come to an extrajudicial agreement, the State requested that the expenses alleged by the representatives be
properly proven. Said agreement was not entered into or has not been informed to the
Tribunal. Consequently, the Court will proceed to determine the corresponding
compensation.
136. In the first place, the Court observes that they incurred the expenses related to the
investigative activities and the expediting of the proceedings as referred to by the
representatives in order to have access to justice. Thus, the Court will analyze them in the
118
Cf. Case of Bámaca-Velásquez v. Guatemala. Reparations, supra note 11, para. 43; Case of La Cantuta v.
Peru, supra note 8, para. 213; and Case of Miguel Castro-Castro Prison v. Peru, supra note 17, para. 423.