45
Non-pecuniary damage
164. Non-pecuniary damage can include the suffering and hardship, the harm of objects
of value that are very significant to the individual, and also changes, of a non-pecuniary
nature, in the living conditions of the victim. Since it is not possible to allocate a precise
monetary equivalent to make integral reparation to the victims, it can only be compensated
in two ways: first, by the payment of a sum of money or the delivery of goods or services
with a monetary value, which the Court determines by the reasonable exercise of judicial
discretion and based on the principle of equity; and, second, by carrying out acts or projects
with public recognition or repercussion, which the Court will refer to below, that have the
effect, among others, of acknowledging the dignity of the victims, and avoiding the
repetition of the violations,150 bearing in mind, also, that international case law has
established repeatedly that the judgment constitutes per se a form of reparation.151
165. The Commission stated that Mr. Bayarri “endured and continues to endure physical
effects and profound psychological suffering as a result of the torture he underwent while he
was in the State’s custody.” It indicated, also, that “[t]he suffering and anguish arose from
the torture and are aggravated owing to the impunity that persists, [which] affects the lives
of the victim and his family.”
166. The representatives alleged that “[t]he different social communications media
repeated […] libelous and harmful […] references to Juan Carlos Bayarri [as a dangerous
kidnapper and murderer] as if this was the truth and, as a result, he was kept […] interned
in maximum security prisons.” Consequently, they requested that the State compensate Mr.
Bayarri “for the libel of which he was a victim, and for the fact that he was kept in
preventive detention for almost 13 years.” In this regard, they asked for a reparation of
US$5,000,000.00 (five million United States dollars) for the non-pecuniary damage owing to
the libel and defamation of which Mr. Bayarri was the victim, together with the sum of
US$1,500,000.00 (one million five hundred thousand United States dollars) for each year of
prison. The total amount requested was US$19,500,000.00 (nineteen million five hundred
thousand United States dollars).
167. The State indicated that the victim “did not identify who was responsible for the
alleged libel and injuries or explain the reasons why the State and not the alleged authors
thereof should be responsible for the alleged damage.” It also indicated that “[i]f [the
Court] decides to order payment of compensation for the non-pecuniary damage
presumably suffered by Mr. Bayarri, its scope should be determined in accordance with the
‘reasonable exercise’ of judicial discretion and ‘based on the principle of equity.’”
168. The Court takes into account, inter alia, that Mr. Bayarri: (i) was subjected to torture
so that he would plead guilty to committing several offenses (supra para. 87); (ii) remained
in preventive detention for almost thirteen years, in violation of his right to personal liberty
(supra para. 75), and during this time he was separated from his family; and (iii) suffered
as a result of the delay in clarifying the facts he was accused of and continues suffering
150
Cf. The “Street Children” (Villagrán Morales et al.) v. Guatemala. Reparations and costs. Judgment of May
26, 2001. Series C No. 77, para. 84; Cantoral Huamaní and García Santa Cruz v. Peru. Preliminary objection,
merits, reparations and costs. Judgment of July 10, 2007. Series C No. 167, para. 175; and case of Apitz Barbera
et al. (“First Administrative Court”), supra note 9, para. 237.
151
Cf. Neira Alegría et al. v. Peru. Reparations and costs. Judgment of September 19, 1996. Series C No. 29,
para. 56; case of Yvon Neptune, supra note 14, para. 166; and case of Castañeda Gutman, supra note 35, para.
239.