54
the date and duration of his stay abroad. The Tribunal notes that the trip to Canada
might have been made for family reasons, among others.153
185. As regards the health problems suffered by the victim’s father, which would
have been caused by the facts of the instant case, the Court has no elements, apart
from what has been alleged, evidencing the existence of such situation or its causal
link with the facts of the instant case. Finally, regarding the disqualification from
being nominated as Supreme Court Justice due to the criminal conviction, it cannot
be concluded that such a situation is encompassed by the concept of lost earnings,
for it was an expectation Mr. Tristán Donoso could legitimately have but the loss of
which did not result in actual damage to his property as a consequence of the
violation declared herein. On the contrary, the Court notes that the facts of the
instant case did not prevent him from finding a position within the State
administration, as the victim informed during the public hearing.154 In view of the
foregoing, this Tribunal shall not set any compensation for pecuniary damages.
ii)
Non-pecuniary damages
186. The Court has developed in its case law the notion of non-pecuniary damages
and the cases in which compensation must be set on such account.155
187. The Inter-American Commission developed the general standards on
reparations and pointed out that Mr. Tristán Donoso “has been a victim of
psychological pain, distress, uncertainty and change of lifestyle as a result of his
being been subjected to an unjust criminal proceeding; the subsequent criminal
conviction for having exercised his right to freedom of expression; and the personal
and professional consequences of such conviction.”
188. The representatives pointed out that, in the instant case, the non-pecuniary
damages is evident, since apart from the suffering and distress undergone by Mr.
Tristán Donoso for having been involved in a criminal proceeding, his case was given
wide coverage, which deteriorated his reputation and significantly undermined his
emotional health. Furthermore, his forced emigration to Canada affected his way of
life and state of mind, and the claim by the former Attorney General to collect a large
sum of money in the action for defamation was a permanent source of concern for
him. Finally, the victim was very much disappointed by the failure to adequately
investigate the wiretapping, recording and disclosure of his conversation, since “even
though there was sufficient evidence [to prove] the involvement of the former
Attorney General […], at least in the disclosure of the conversation, he had to put up
with the indulgent attitude of the Courts of law and the resulting impunity in relation
to his case.” So, the representatives request that the victim be compensated for
non-pecuniary damages and that the Court set such reparation in the amount of
153
Cf. Testimony rendered by Ms. Aimée Urrutia-Delgado before a public official whose acts
command full faith and credit, supra note 16, folio 522.
154
Cf. Statement by Mr. Tristán-Donoso during the public hearing held August 12, 2008 before the
Inter-American Commission on Human Rights, supra note 21, and testimony rendered by Ms. Aimée
Urrutia-Delgado before a public official whose acts command full faith and credit, supra note 16, folio 523.
155
This Tribunal has established that non-pecuniary damage “can include the suffering and hardship
caused to the direct victim and his next of kin, and the impairment of values that are highly significant to
them, and also alterations, of a non pecuniary nature, in the living conditions of the victim or his family.”
Cf. Case of the “Street Children” (Villagrán-Morales et al.) v. Guatemala. Reparations and Costs. Judgment
of May 26, 2001. Series C No. 77, para. 84; Case of Ticona-Estrada et al., supra note 6, para. 126, and
Case of Valle-Jaramillo et al., supra note 6, para. 219.