5
21.
In view of the above, it is pertinent that the Court order reparation measures
that alleviate the harm suffered by the victims and their successors, avoid the
repetition of violations of this nature, and re-establish, insofar as possible, some of
the conditions that existed before the massacre occurred, producing its grave and
notorious consequences. These measures of reparation are of diverse types. They
include those that, based on the violation of Article 5 of the Pact of San José, relate
to the preservation of the culture of the communities affected and the provision of
certain goods and services that contribute to mitigating the suffering caused and
avoiding fresh violations of the same nature.
C.
INTEGRATION OF THE COMPENSAATION
22.
When exercising its jurisdiction to protect human rights, which occurs when a
fundamental right of a specific individual has been violated, the system to which this
jurisdiction belongs has several objectives: to re-establish the legal order that has
been breached, to restore social peace and tranquility based on freedom and justice,
to avoid self-defense, and to repair the damage caused to the victim. I will not try
and establish a ranking of these objectives in the sphere of the protection of human
rights. My interest is to underscore the need to provide effective legal protection to
the victim, or his successors if applicable, once the violation has been committed,
which translates into a specific reasonable reparation that lessens the consequences
of the violation and mitigates the damage caused. This reparation must be based on
justice and, particularly, on fairness.
23.
The judge cannot lose sight of this need, which is based on the consideration
due to those who have been directly affected by the violation. It is true that, based
on these often very moving and distressing cases, it is possible, and necessary, to
establish general concepts and legal doctrine that contribute to the development of
law, but it is also true that the judge cannot – or, in my opinion, should not – ignore
the “individual case” and focus his attention on the “general concept,” leaving the
victim in the distant background, reduced to a mere motive for reflection and
conclusions that transcend him and, finally, leave him abandoned.
24.
When taking a decision on compensation for the deprivation of juridical rights
that are not of a strictly patrimonial nature, the judge confronts problems that are
difficult to resolve. This happens when he wants to compensate the suffering caused
by the arbitrary deprivation of the life of a loved one, but also when he decides
compensation for other violations that lead to suffering. In this case, the arbitrary
deprivation of life, in itself, is outside the jurisdiction of the Inter-American Court,
because of the date on which the State accepted this jurisdiction. When considering
intense suffering, the damage caused can and must be compensated or alleviated
only by financial compensation. In the absence of a better solution, it has been
accepted that a violation entails the obligation to provide compensation.
25.
In these cases, it is obviously impossible to compensate the damage suffered
as to when the loss of a possession can be compensated by providing a new one of
identical nature and value to the one lost, an operation that approximates restitutio.
In such cases, a payment in cash or in kind, or both, is decided; this contributes, on
the one hand, to expressing reproach for the violation committed and, on the other
hand, to mitigating the suffering caused.
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