25
39.
This Court has established, in its case law,35 that it is a principle of
International Law that any violation of an international obligation that has caused
damage generates a new obligation: that of providing adequate reparation for the
damage caused. To this end, the Court has based its position on Article 63(1) of the
American Convention, according to which,
[i]f the Court finds that there has been a violation of a right or freedom protected by this
Convention, the Court shall rule that the injured party be ensured the enjoyment of his
right or freedom that was violated. It shall also rule, if appropriate, that the
consequences of the measure or situation that constituted the breach of such right or
freedom be remedied and that fair compensation be paid to the injured party.
40.
Article 63(1) of the American Convention contains a rule of customary law
that is one of the main principles of contemporary International Law regarding
responsibility of the States. When there is an unlawful act attributable to a State,
this gives rise to the latter’s international responsibility for abridgment of the
international provision, with the entailing duty to make the consequences of the
violation cease and to provide reparation for damage caused.36
41.
In the instant case, the State’s responsibility for breaching the
aforementioned Articles (supra paras. 15 and 38)), is compounded because what
happened to the child Marco Antonio Molina Theissen was part of a practice of forced
disappearance of persons, carried out by the State during the domestic armed
conflict and carried out primarily by agents of its security forces, and children were
also victims of this practice, as a means of torturing and frightening their families.
42.
Reparation of the damage caused by infringement of an international
obligation requires restitutio in integrum, whenever possible, which consists of
reestablishing the prior situation. If this is not possible, as in the instant case, this
international Court must order that measures be adopted so that, in addition to
ensuring respect for the rights that were abridged, the consequences of the
violations are remedied and compensation is paid for damage caused.37 It is also
necessary to add the positive measures that the State must adopt to ensure that
injurious acts such as those of the instant case do not happen again.38 The State that
is under this obligation cannot invoke domestic legal provisions to modify or avoid
complying with its obligations to make reparations, which are regulated in all aspects
(scope, nature, modes, and establishment of the beneficiaries) by international law.39
35
See Case of Maritza Urrutia, supra note 2, para. 141; Case of Myrna Mack Chang, supra note 2,
para. 234; and Case of Bulacio, supra note 2, para. 70.
36
See Case of Maritza Urrutia, supra note 2, para. 143; Case of Myrna Mack Chang, supra note 2,
para. 236; and Case of Bulacio, supra note 2, para. 71.
37
See Case of Maritza Urrutia, supra note 2, para. 142; Case of Myrna Mack Chang, supra note 2,
para. 235; and Case of Bulacio, supra note 2, para. 72.
38
See Case of Maritza Urrutia, supra note 2, para. 144; Case of Juan Humberto Sánchez, supra
note 14, para. 150; and Case of Bulacio, supra note 2, para. 73.
39
See Case of Maritza Urrutia, supra note 2, para. 143; Case of Myrna Mack Chang, supra note 2,
para. 236; and Case of Bulacio, supra note 2, para. 73.
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