35
established by the Court through reasonable judicial discretion and in fairness.43
Secondly, through acts or works that are public in terms of their scope or
repercussion, such as transmitting a message of official condemnation of the human
rights violations involved and of commitment with efforts to ensure that they never
happen again, that have the effect of honoring the memory of the victims,
recognizing their dignity and providing consolation to their next of kin. We will
analyze the first aspect of non-pecuniary damages in this section, and the latter one
in section D) of this chapter.
66.
International jurisprudence has repeatedly established that the judgment is
per se a form of reparation.44 However, taking into account the grave circumstances
of the instant case, the intensity of suffering caused by the respective facts to the
victim and to his next of kin, how their conditions of existence were altered, and the
other non-material or non-pecuniary consequences to the latter, the Court deems
that it must order payment of compensation for non-pecuniary damages, in
fairness.45
67.
In the sub judice case, in setting compensation for non-pecuniary damages, it
is necessary to consider that with respect to children, the State has a special
obligation of providing protection,46 which it should have fulfilled with respect to the
victim because he was a child. The Court deems that the child Marco Antonio Molina
Theissen must have suffered deeply when he was detained and kidnapped by agents
of the State on October 6, 1981 and subsequently made to disappear. Therefore,
the Court deems that Marco Antonio Molina Theissen must receive compensation for
non-pecuniary damages and it orders payment, in fairness, of US $100,000.00 (one
hundred thousand United States dollars) for this item. Said compensation must be
delivered to his next of kin, pursuant to the terms of paragraphs 50 and 51 of the
instant Judgment.
68.
In the case of the next of kin of the victim it is reasonable to reach the
conclusion that the distress suffered by the victim extend to the closest members of
the family, especially to those who were in close emotional contact with him. No
evidence is required to reach this conclusion.47 Marco Antonio Molina Theissen’s
parents and sisters are also the victims of violations of various articles of the
American Convention (supra para. 15). In the instant case we must underline that,
with respect to violation of Article 5 of the Convention, in the context of the special
gravity of forced disappearance of persons, the Court has pointed out that the latter
causes “suffering and anguish, in addition to a sense of insecurity, frustration and
43
See Case of Maritza Urrutia, supra note 2, para. 161; Case of Myrna Mack Chang, supra note 2,
para. 255; and Case of Bulacio, supra note 2, para. 90.
44
See Case of Maritza Urrutia, supra note 2, para. 166; Case of Myrna Mack Chang, supra note 2,
para. 260; and Case of Bulacio, supra note 2, para. 96.
45
See Case of Maritza Urrutia, supra note 2, para. 166; Case of Myrna Mack Chang, supra note 2,
para. 260; and Case of Bulacio, supra note 2, para. 96.
46
See Case of Bulacio, supra note 2, paras. 98, 133 and 134; “Street Children” Case (Villagrán
Morales et al.). Reparations (Art. 63(1) American Convention on Human Rights). May 26, 2001 Judgment.
Series C No. 77, para. 91(b); and Legal Status and Human Rights of the Child. Advisory Opinion OC-17/02
of August 28, 2002. Series A No. 17, paras. 56 and 57.
47
See Case of Maritza Urrutia, supra note 2, para. 169; Case of Myrna Mack Chang, supra note 2,
para. 264; and Case of Bulacio, supra note 2, para. 98.
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