42
reparation33. However, the Court considers that it is insufficient, bearing in mind the
physical and mental suffering caused to the victim and her next of kin in a case such
as this, and that reparation for this suffering must be made in an alternative form,
by pecuniary compensation, which must be established in fairness, since nonpecuniary damage cannot be calculated precisely34.
106. In the case sub judice, the non-pecuniary damage inflicted on the victim is
evident, because it is only human nature that any person subjected to the
aggression and abuse that she endured (unlawful detention, torture and death)
experiences profound physical and mental suffering, which extends to the closest
members of the family, particularly those who had a close affective relationship with
the victim.
The Court considers that no evidence is required to reach this
conclusion35.
107. The representatives of the victim’s next of kin and the Commission requested
the Court to establish compensatory amounts for the non-pecuniary damage in favor
of the victim’s next of kin. The statements made before this Court by the next of
kin: Blanca Lidia Zamora (sister-in-law), Alberto Antonio Paniagua Morales (brother)
and María Ildefonsa Morales de Paniagua (mother) on the merits of the case and by
the latter together with the report of Graciela Marisa Guilis at this stage (supra
66.a), reveal the different forms of suffering that the abduction, torture and death of
Anna Elizabeth Paniagua Morales caused the family. These statements emphasize
the grief caused by the loss of a member of their family, the transfer of the siblings
to Canada and the United States and the disintegration of the family.
108. In the case of the victim’s parents, it is not necessary to demonstrate the
non-pecuniary damage, because this is presumed36. Similarly, the physical and
mental suffering of the victim’s daughter can be presumed.
109. With regard to her siblings, it is necessary to take into account the degree of
relationship and affection that existed between them. In the case sub judice, it can
be seen that there were close ties between the victim and her brother, Alberto
Antonio Paniagua Morales, and her sister-in-law, Blanca Lidia Zamora de Paniagua,
who lived in the same house. Moreover, with regard to the latter, the Court has
33
Cf. Eur Court HR, Ruiz Torrija v. Spain judgment of 9 December 1994, Series A no. 303-A, para.
33; Eur Court HR, Boner v. the United Kingdom judgment of 28 October 1994, Series A no. 300-B, para.
46; Eur Court HR, Kroon and Others v. the Netherlands, judgment of 27 October 1994, Series A no. 297C, para. 45; Eur Court H.R., Darby, judgment of 23 October 1990, Series A no. 187, para. 40; Eur Court
H.R., Koendjbiharie, judgment of 25 October 1990, Series A no. 185-B, para. 34; Eur Court H.R., Wassink,
judgment of 27 September 1990, Series A no. 185-A, para. 41; and Eur Court H.R., McCallum judgment
of 30 August 1990, Series A no. 183, para. 37.
34
Castillo Páez case, Reparations, supra note 2, para. 84. and likewise, Eur. Court H.R., Wiesinger
judgment of 30 October 1991, series A no. 213, para. 85; Eur. Court H.R., Kenmmache v. France (Article
50) judgment of 2 November 1993, Series A no. 270-B, para. 11; Eur. Court H.R., Mats Jacobsson
judgment of 28 June 1990, Series A no. 180-A, para. 44; and Eur. Court H.R., Ferraro judgment of 19
February 1991, Series A no. 197-A, para. 21.
35
Cf. Castillo Páez case, Reparations, supra note 2, para. 86; Loayza Tamayo case, Reparations,
supra note 2, para. 138; Neira Alegría et al. case, Reparations, supra note 19, para. 57; El Amparo case,
Reparations, supra note 19, para. 36; and Aloeboetoe et al. case, Reparations, supra note 19, para. 52.
36
Cf. Castillo Páez case, Reparations, supra note 2, para. 88; Loayza Tamayo case, Reparations,
supra note 2, para. 142; Garrido and Baigorria case, Reparations, supra note 22, para. 62; and
Aloeboetoe et al. case, Reparations, supra note 19, para. 76.
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