39
c)
with regard to the life plan, the precarious situation of the victims
makes it highly probable that they did not have a life plan to put into practice
and it asks the Court to reject the Commission’s request to establish separate
financial reparations for this concept, and also the amount requested; and
d)
it accepts its responsibility in this case as regards the general failure to
adopt effective policies to avoid having a street children problem, but the
victims’ next of kin also bear responsibility in this respect, because they did
not fulfill their basic functions.
The considerations of the Court
88.
This Court, as other international tribunals, has repeatedly indicated that a
judgment of condemnation may be, per se, a form of compensation for nonpecuniary damage80. However, owing to the grave circumstances of the instant
case, the intensity of the suffering that the respective facts caused to the direct
victims and their next of kin, and also the other consequences of a non-pecuniary
nature that they caused the latter, the Court considers that, in fairness, it must
order the payment of compensation for non-pecuniary damage81.
89.
The victims’ next of kin and the Commission have referred to various types of
non-pecuniary damage: the physical and mental suffering experienced by the direct
victims and their families; the loss of life, considering life to be a value in itself, or an
autonomous value; the destruction of the life plan of the youths who were
assassinated and that of their next of kin, and the damage suffered by three of the
direct victims, owing to their status as minors, by having been deprived of the
special measures of protection that the State should have provided to them.
90.
Taking into consideration the different aspects of the above-mentioned
damage that has been submitted as evidence by the victims’ representatives and the
Commission, insofar as they are pertinent and respond to the particularities of each
individual case, the Court, in fairness, establishes the value of the compensation for
non-pecuniary damage that must be made to each of the direct victims and their
immediate next of kin, as indicated in the table that appears below (infra para. 93).
The Court explains that, when making this calculation for non-pecuniary damage, it
has also borne in mind the overall adverse conditions of abandonment endured by
the five street children, who were in a high-risk situation and without any protection
as regards their future82.
80
cf. Ivcher Bronstein case, supra note 2, para. 183; “The Last Temptation of Christ” case (Olmedo
Bustos et al), supra note 2, para. 99; Baena Ricardo et al. case, supra note 2, para. 206; The
Constitutional Court case, supra note 15, para. 122; Blake case. Reparations, supra note 13, para. 55.
The European Court has established the same criterion, see, inter alia, Eur Court HR, Ruiz Torrija 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., Koendjbiharie, judgment of 25 October
1990, Series A no. 185-B, para. 34; Eur Court H.R., Wassink, judgment of 27 September 1990, Series A
no. 185-A, para. 41; and Eur Court H.R., McCallum judgment of 30 August 1990, Series A no. 183, para.
37.
81
cf. Ivcher Bronstein case, supra note 2, para. 183; Baena Ricardo et al. case, supra note 2, para.
206; and The Constitutional Court case, supra note 15, para. 122.
82
cf. Villagrán Morales et al. case (The “Street Children” case). Judgment of November 19, 1999.
Series C No. 63, paras. 188 to 191.
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