c)
the representatives of the next of kin of the victims confuse the
existence of a damage with its quantification, on the mistaken basis that for
this it is sufficient that the State has been found responsible for the fact. This
moral detriment is different from the finding by the Court that justice was
delayed. Said representatives should have proven the existence of the
damage and the causal link before requesting that the amount of the
detriment be appraised. Therefore, the request for compensation for moral
damage suffered by the next of kin of the victims, due to fear of imminence of
a danger over 11 years, is also unconducive, because the existence of this
damage has not been proven. The fear and anguish that the next of kin of
the victims say they suffer allegedly derive from their struggle against
impunity regarding the facts, which is not true because they have not
participated in the proceedings.
Considerations of the Court
53.
The December 6, 2001 judgment found that Colombia breached Articles 8(1)
and 25(1) of the Convention to the detriment of the next of kin of the persons listed
in operative paragraph four. Paragraphs 48 to 66 of that judgment analyze said
violations. Reading these texts it can be seen that the main types of damage
suffered can be classified in two groups, as follows:
a)
On the one hand, all the damage caused by deficiencies in processing
of the judicial proceedings, their delays and the obstacles placed to hinder
attainment of a prompt and adequate decision. In this regard, the references
to the disciplinary proceedings and to the ordinary criminal proceedings in the
judgment should be recalled.80 It should also be added that some members
of the police altered, hid, and destroyed evidence. All this led the Court to
state that there was a “situation of impunity.” The damage caused by this
situation consists of the impossibility of punishing those truly responsible,
which creates a feeling of defenselessness and anguish among the next of kin
of the victims.
b)
On the other hand, there is the conduct of numerous members of the
police force and other officials who distorted the truth of the facts, making it
all appear to have been an attack by an armed subversive group. This led to
the next of kin being deemed linked to the guerrilla forces. As a consequence
thereof, some of them lost their jobs, their social and commercial relations;
others were insulted, maltreated, and persecuted.
54.
The next of kin of the victims may have suffered the above stated damage in
one of the aforementioned categories or in both at the same time. All such damage
must be duly redressed. But the Court must specify that the indemnifications
granted are to repair the detriment caused. Therefore, those claiming reparation
must, in general, demonstrate the damage suffered. If the damage is caused by the
situation of impunity, they must certify the ties of the applicant with one of the
victims and that lack of punishment has caused detriment to him or her. Likewise,
those who have suffered insults or maltreatment, or who have lost their jobs due to
their ties with a victim, must also prove the damage suffered for the reparation to be
80
Cf. Las Palmeras Case, supra note 20, paras. 49-56.
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