85
96.
Pursuant to the above, the representatives submitted a specific quantitative
estimate of compensation for “moral prejudice ” with respect to each of the victims
and their next of kin, an estimate that has been taken into account by the Court, as
a reference point, as pointed out below.
Arguments of the Commission
97.
With respect to non-pecuniary damage, the Commission pointed out that
a)
in accordance with the criteria set forth by the Court in its case law,
injury to the rights of the direct victims has gravely affected them emotionally
and caused a psychological trauma to both the direct victims, if they survived,
and the next of kin of all victims. Said injury must be indemnified by the
State due to moral prejudice , and it is for the Court to set compensation
based on its judicious estimate;
b)
the Court has recognized damage to the life project in the Loayza
Tamayo case. Certain domestic legislation has resorted to that concept. The
State must be ordered, in the instant case, to indemnify for the damage
caused to the life project of the victims whose right to humane treatment was
breached, insofar as the wounds suffered became obstacles that prevented
them from attaining their vocation; and
c)
it has been proven that one of the sources of deep suffering of the
next of kin of executed victims and disappeared persons in the instant case
has been the circumstance that 13 years have gone by without the truth of
the facts being known, due among other factors to secrecy of the preliminary
investigative phase, which systematically hindered said next of kin’s access to
the case files under domestic jurisdiction. This aspect of the damage must
also be indemnified.
Arguments of the State
98.
For the reasons stated regarding application of the estoppel principle in the
chapter on assessment and use of the evidence, the Court will not refer, in this
section, to the arguments of the State regarding non-pecuniary damage.
Considerations of the Court
99.
Given the grave circumstances of the instant case, the intensity of suffering
caused by the respective facts to the victims and also to their next of kin,
disturbance of the conditions of existence of the victims and their next of kin, and
other non-pecuniary consequences brought upon the latter, the Court deems that it
must order payment of compensation for non-pecuniary damage, in fairness.190 The
Court will do so, in the following paragraphs, based on the evidence gathered and
specifically on the presumptions enunciated in the chapter on evidence, and taking
into account the arguments of the representatives of the victims and of the next of
kin and of the Commission.
190
Cf. Trujillo Oroza Case. Reparations, supra note 2, para. 83; Bámaca Velásquez Case.
Reparations, supra note 2, para. 60; and Cantoral Benavides Case. Reparations, supra note 27, para. 57.