3
range of reparations that the Court can award is broadened, in accordance with the
circumstances of each case.
The purpose of publication and compensation is three-fold: a) on the one hand, the
moral satisfaction of the victims or their successors, the recovery of honor and
reputation that may have been sullied by erroneous or incorrect versions and
comments; b) on the other, the establishment and strengthening of a culture of
legality in favor, above all, of the coming generations; and c) lastly, serving truth, to
the advantage of those who were wronged and of society as a whole. The foregoing
is inserted in the broad regime of recognition and protection of rights and in the
corresponding preservation of the values of a democratic society. In brief, the
reparation of the harm in this case has compensatory and preventive effects; as
regards the latter, it considers the need to prevent the repetition of conduct such as
that which gave rise to the proceedings before the international instances.
I consider that the Court could have gone further in this aspect of the judgment, in
view of the particular conditions of the case and of its protagonists; that is to say, in
accordance with the circumstances that reflect the complete panorama of the case
and its social and legal consequences. There was public attention – with its different
consequence – not only in Guatemala, although this was its natural and principal
sphere. It should be recalled that Jennifer Harbury lives and works in the United
States of America, of which she is a citizen, and carried out various actions to try
and clarify the facts in that country.
If we consider all the circumstances and the purpose of the measure of satisfaction
that this type of reparation involves, the judgment should also be published in the
place where the person affected by public opinion lives. Indeed, it is a question of
the latter finding due social satisfaction precisely in the circles where she usually
lives and works. By disseminating certain chapters of the judgment, the intention is
not only to inform the public about a relevant event, but also to attract social
approval towards those who were involve in it and unjustly suffered the violation of
their rights.
4.
Calculation of damages and compensation
I agree with my colleagues that a criterion of fairness should be adopted to define
the amounts corresponding to the reparation of the pecuniary and non-pecuniary
damage resulting from the human rights violations in this case and I also share the
position set out in the judgment concerning the amount established under this
heading. In the matter before the Court, there were no elements of evidence that
would permit greater precision. In any case, I consider it reasonable that the rule
admitted in several of the Court’s judgments regarding the future income of the
victim, when the latter loses his life, and there is a need to provide certain amounts
to his successors, should have been rejected – even when it is only in the case being
examined. In this regard, a criterion that I consider inadequate has been used for
some time. On several occasions, it has been said that 25 per cent should be
deducted from the amount that results from evaluating the subject’s income and
average life expectancy under normal conditions – issues, which are always
debatable – for the victim’s personal expenses throughout his future life, and the
remaining amount, that is 75 per cent of the total, should be granted to his
successors.