84
94.
The Court will now consider the injurious effects of the facts of the case which
are not economic or patrimonial. Non-pecuniary damage may include suffering and
affliction caused to the direct victims and their relatives, detriment to very significant
values of persons, as well as non-pecuniary alterations in the conditions of existence
of a victim or his or her family. Since it is not possible to assign a precise monetary
equivalent to non-pecuniary damage, for purposes of comprehensive reparation to
the victims, it can only be compensated for, and this in two ways. First, by means of
payment of an amount of money or delivery of goods or services that can be
estimated in monetary terms, which the Court will establish through reasonable
application of judicial discretion and in terms of fairness. And secondly, by means of
acts or works which are public in their scope or repercussion and that have effects
such as remembrance of the victims, recognition of their dignity, consolation to their
relatives, or transmittal of a message of official reproval of the human rights
violations involved and of commitment to efforts seeking to avoid their repetition.189
The first aspect of reparation for non-pecuniary damage will be analyzed in this
section, and the second aspect in the following one.
Arguments of the representatives of the victims and of the next of kin
95.
The representatives of the victims and of the next of kin argued, with respect
to non-pecuniary damage, as follows:
a)
said damage has been sufficiently proven by the sworn testimony
rendered by the next of kin of the victims;
b)
as the Court has stated in other cases, it is inherent to human nature
for any person subject to aggression and abuse to experience moral suffering,
and it must be considered that it causes moral suffering of the next of kin
who are directly affected by the abuse suffered by the victim. Given these
circumstances, they requested that the respective compensation be set in
fairness and based on a judicious estimate of the moral prejudice ;
c)
reparation of the damage caused by the death and forced
disappearance of the victims should not be limited to reimbursement of
expenses incurred by the next of kin as a consequence of the facts that
occurred, the income the victims would have generated, and the moral
prejudice suffered by the next of kin due to their deaths. There is a value
attributable to the life of each individual which transcends those items, and
from which a different right than the rights of the next of kin derives, and its
violation generates an independent obligation to make reparations.
Protection of the right to life in the Convention requires that it be granted an
autonomous value. Therefore, the representatives of the victims and of the
next of kin request that the Court establish that value and the measures that
in its opinion constitute equitable reparation for it in the instant case; and
d)
denial of justice as an autonomous violation of Articles 8 ad 25 of the
Convention
also generates a specific obligation of the State to make
reparations.
189
Cf. Trujillo Oroza Case. Reparations, supra note 2, para. 77; Bámaca Velásquez Case.
Reparations, supra note 2, para. 56; and Cantoral Benavides Case. Reparations, supra note 27, para. 53.