85
C)
NON-PECUNIARY DAMAGE
227. Non-pecuniary damage may comprise pain and suffering, the detriment of
values highly significant for the individuals and non-monetary alterations in the
victims’ living conditions. Since it is impossible to ascertain the accurate monetary
value of non-monetary damage, there are only two alternatives for the integral
compensation of victims. Firstly, through the payment of a sum of money or the
delivery of goods or services that may be measurable in monetary terms, which the
Court shall determine through the reasonable exercise of its judicial discretion and
on equitable grounds. Secondly, through public works or acts intended, inter alia, to
commemorate and dignify the victims as well as to avoid the repetition of human
rights violations. 153153
228. In the instant case, this Court has declared that the State is responsible for
violating the rights enshrined in Articles 4(1) and 5(1) and 5(2) of the American
Convention, to the detriment of Mr. Damião Ximenes-Lopes; in Article 5 of the
Convention, against Albertina Viana-Lopes, Irene Ximenes-Lopes and Francisco
Leopoldino Lopes and Cosme Ximenes-Lopes; and Articles 8(1) and 25(1) of the
Convention, against Albertina Viana-Lopes and Irene Ximenes-Lopes, all in relation
to Article 1(1) of said Convention. Therefore, the State must compensate Mr.
Ximenes-Lopes and his next of kin for the damage caused.
229. Before determining the reparations applicable in the instant case, this Court
deems it appropriate to address the civil action for damages filed by Albertina VianaLopes with the domestic courts, and the life pension established by the state of
Ceará through Law No. 13,491 and granted to Albertina Viana-Lopes (supra para.
112(69)).
230. In relation to the civil action for damages, the State argued that the Court
must prevent bis in idem from happening, which would occur if the civil action for
damages were allowed by a domestic court and the Court decided to order the State
to pay compensation for non-pecuniary damages to Albertina Viana-Lopes.
Therefore, according to the State, the same loss would thus be twice compensated
for. In addition, it pointed out that the action for damages was filed against private
individuals rather than the State.
231. In that regard, the Court considers that the victims or their next of kin retain
the right to claim compensation from the private individuals who may be responsible
for the loss. In the instant case, Albertina Viana-Lopes exercised such rights in filing
the civil action for damages, which is still pending resolution.
232. Due to the international liability incurred by the State, the latter has a new
legal duty: the obligation to make reparations, 154 which is different from the
153
Cf. Case of Baldeón-García, supra note 4, para. 188; Case of Sawhoyamaxa Indigenous
Community, supra nota 4 para. 219; and Case of Acevedo Jaramillo et al., supra note 4, para. 308.
154
Cf. Case of Baldeón-García, supra note 4, para. 175; Case of Sawhoyamaxa Indigenous
Community, supra note 4 para. 196; and Case of Baena Ricardo et al. Competence. Judgment of
November 28, 2003. Series C No 104, para. 65.