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Third, the Police captain who was accused by the direct perpetrators of being a
mastermind and the person responsible for ordering the execution of the Gómez
Paquiyauri brothers, has neither been trialed nor convicted to date, as he is at large,
and the proceeding has been suspended and the criminal action is at risk of being
barred by the statute of limitations. It is grave that, 13 years after the crimes were
committed, this fugitive has not been captured, and this questions the actual
willingness of the national authorities to search for and arrest him. All the more so,
as this fugitive has filed remedies in the proceeding, through his attorney.
This not only constitutes an obvious situation of impunity, but also raises legitimate
questions, pending investigation, regarding the possible involvement of other
masterminds or persons responsible for the order to execute the Gómez Paquiyauri
brothers, among the higher Police authorities or the political authorities. As the
Court has ordered in its judgment, the State must capture this fugitive, without
allowing the crimes to be barred by the statute of limitations, and it must conduct a
full investigation of the facts and convict and punish all those responsible.
3.Regarding the issue of reparations, I believe it would have been preferable
to establish as the prevailing criterion that of reparation for detriment to life
aspirations, caused by the execution of the two boys. I believe this is preferable to
and more appropriate than having considered lost earnings under pecuniary
damages, as this and other judgments of the Court have done. Detriment to life
aspirations, as pointed out by judges Cançado Trindade and Abreu Burelli in the joint
opinion in the Loayza Tamayo case, is a more appropriate concept in cases of
reparations for grave violations of human rights. It makes it possible to establish a
distance with respect to the criteria of Civil Law on Property, such as lost earnings,
damnum emergens, detriment to family assets, or lucrum cessans.
Detriment to life aspirations involves both pecuniary and non-pecuniary aspects of
the violation of this fundamental right of the person; it therefore requires not only a
compensatory reparation for the arbitrary deprivation of life, but also for abridgment
and cutting short of the free development of the personality, interruption of the
actions that both children might have carried out not only in terms of work (lost
earnings) but also regarding spiritual aspect, personal and family realization,
attainment of plans and goals. Assessing the pecuniary damage by estimating it as
lost earnings is unsatisfactory especially with respect to children or adolescents who
have not yet effectively entered the job market. Recognizing detriment to life
aspirations is therefore more comprehensive and consistent from the perspective of
protection of human rights, distancing itself from trends that focus essentially on
property rights.
It also includes the non-pecuniary dimension, which makes it
unnecessary to separately consider moral damages to the direct victims even if they
have died. I therefore believe that this Court might review the criteria to establish
reparations in future reparations, especially with respect to children or adolescents
deprived of the right to life.
4.While I do not fully share the use of the criterion of damnum emergens,
either, I find it positive that the Court has finally grouped under this item a set of
expenses incurred by the Gómez Paquiyauri family as a consequence of the death of
their children Rafael and Emilia, as well as the funerary expenses and medical
treatment for some next of kin. I also find it appropriate that the Court opted to
include under this item the funds for psychological treatment that the members of
this family required or may require in the future, as a consequence of their suffering
and of the acts of harassment and segregation to which they were unfairly subjected.
This avoids listing the expenses for psychological treatment as a specific item under
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