27
Cour eur. D. H., arrêt Mats Jacobsson du 28 juin 1990, série A no. 180-A, p. 16, para. 44 y
Cour eur. D.H., arrêt Ferraro du 19 février 1991, série A no. 197-A, p. 10, para. 21).
85.
The Court has held that in the case of moral damages, “indemnity may be
awarded under international law and, in particular, in the case of human rights
violations” (Velásquez Rodríguez Case, Compensatory Damages, supra 75, para. 27
and Godínez Cruz Case, Compensatory Damages, supra 75, para. 24).
86.
In the instant case, the moral damage inflicted upon the victim is obvious, for
it is characteristic of human nature that anyone subjected to aggression and abuse
of the kind committed against him (unlawful detention, cruel and inhuman
treatment, disappearance and death) will experience terrible moral suffering (cf.
Traité de Neuilly, article 179, annexe, paragraphe 4 (interpretation) arrêt No. 3,
1924, C. P. J. I, série A No. 3, p. 9, the Arbitrary Tribunals, Maal case, 1 June 1903,
Reports of International Arbitral Awards, vol. X, pp. 732 and 733, and the Campbell
Case, 10 June 1931, Reports of International Arbitral Awards, vol. II, p. 1158; cf.
supra 69. The Court is of the opinion that no evidence or proof is needed to arrive at
this conclusion (Aloeboetoe et al. Case, Reparations, supra 50, para. 52). As it is
impossible to award compensation for moral damages to the victim himself, the
principles of succession rights must be applied. As the Court has held, in some
circumstances the immediate family members can be presumed to be successors for
purposes of the corresponding compensation (cf. Aloeboetoe et al. Case, Reparatons,
supra 50, para. 76 and Garrido and Baigorria Case, supra 42, para. 50).
87.
The Court is of the opinion, moreover, that the anguish and uncertainty that
the disappearance and lack of information about the victim caused to his next of kin
constitute moral damages for them.
88.
In the case of the victim’s parents, the moral damages need not be shown, as
they can be presumed. As the Court has held, “it can be presumed that the parents
have suffered morally as a result of the cruel death of their offspring, for it is
essentially human for all persons to feel pain at the torment of their child”
(Aloeboetoe et al. Case, Reparations, supra 50, para. 76; Garrido and Baigorria
Case, Reparations, supra 42, para. 62). This position was reinforced by the Court’s
recent case law, wherein it held that the circumstances of the forced disappearance
“generate suffering and anguish, in addition to a sense of insecurity, frustration and
impotence in the face of the public authorities’ failure to investigate” (Blake Case,
Judgment of January 24, 1998. Series C No. 36, para. 114).
89.
As for the sister of Ernesto Rafael Castillo-Páez, the Court is of the view that
it has been established that she suffered painful psychological consequences as a
result of her brother’s disappearance and death, because he was her only brother
and they lived under the same roof, and because she experienced, together with her
parents, the uncertainty of the victim’s whereabouts and was forced to move to
Europe, where she has lived as a refugee in the Netherlands. All of this is grounds
for direct compensation for moral damages (cf. European Court of Human Rights,
Mori Judgment, 19 February 1991, Series A No. 197-C, p.38, para. 20; similarly,
European Court of Human Rights cases, Tusa v. Italy, February 1992. Series A No.
231-D, p. 42, para. 21; European Court of Human Rights, Beldjoudi v. France, 26
March 1992, Series A No. 234-A, p.30, para. 86; and European Court of Human
Rights, Kemmache v. France (Article 50), 2 November 1993, Series A No. 270-B, p.
16, para. 11).