68
Therefore, the idea of loss of earnings, loss of military wages and dismissal of the applicants
from the Air Force could not be seen as arbitrary actions attributable to the State and
producing violations of the Convention, but instead, the whole matter was a response to the
applicants’ criminal activities. It also noted that the case file held no evidence whatsoever of
difficulty finding jobs as a result of the full disqualification.
284. Finally, the State questioned the item of nonpecuniary damage, arguing that no legal
basis or method of calculation had been held up as evidence that the amounts being claimed
were reasonable. It also stressed the lack of proof that the alleged victims had experienced
any type of suffering, affliction or change in their living conditions as a consequence of the
alleged violations being attributed to the State, as “there is no evidence, such as medical or
psychological certificates, lending credence to this assertion.”
285. The State therefore held that the applicants, even though they were held under strict
conditions of pretrial detention, had enjoyed certain benefits due to them as military
personnel; for example, “it is known that they were held in different Air Force facilities and
were able, on a voluntary basis, to perform certain tasks not incompatible with their
procedural status. [They were] also able to take part in sports and recreational activities and
had access to reading material, radio and television. They were given leave [free days] to
spend time with their families in their own homes for religious celebrations or particular family
events. Indeed, some of the applicants […] had children born during the time they were in
pretrial detention, which gives the lie to the alleged situation of pain and suffering for their
families.”
E.2 Considerations of the Court
286. The Court has developed the concept of pecuniary damage in its case law, holding that
it entails “loss or detriment to the victims’ income, the expenses incurred as a result of the
facts of the case and the monetary consequences that have a causal nexus with the facts.” 225
The Court’s case law has further developed the concept of non-pecuniary damage, holding
that it “may include both the suffering and distress caused by the violation and the impairment
of values that are highly significant to them, as well as any other nonpecuniary change in the
living conditions of the victims or family members.” 226 Given that it is not possible to assign
a specific monetary value to non-pecuniary damage for the purposes of providing
comprehensive reparation to the victim, it can only be compensated through payment of a
sum of money or the delivery of goods or services that can be quantified in monetary terms,
which the Court will determine by applying judicial discretion in a rational and equitable
manner.227 The Court also reiterates the compensatory nature of the indemnities; their nature
and amount depend on the damage caused, and therefore they are not supposed to enrich or
impoverish the victims or their heirs.228
287. This Court observes that the representatives’ requests for compensation are intended
essentially to obtain financial compensation as a consequence of the alleged violations that
225
Case of Bámaca Velásquez v. Guatemala. Reparations and Costs. Judgment of February 22, 2002. Series C
No. 91, par. 43, and Case of Human Rights Defender et al. v. Guatemala, par. 266.
226
Cfr. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Reparations and Costs. Judgment
of May 26, 2001. Series C No. 77, par. 84, and Case of Human Rights Defender et al. v. Guatemala, par. 266.
227
Cfr. Case of Cantoral Benavides v. Peru. Reparations and Costs. Judgment of December 3, 2001. Series C No.
88, par. 53, and Case of Human Rights Defender et al. v. Guatemala, par. 266.
228
Cfr. Case of the “White Van” (Paniagua Morales et al.) v. Guatemala. Reparations and Costs, par. 79, y Case
of Human Rights Defender et al. v. Guatemala, par. 266.