25
101. As regards Mr. Kimel’s next of kin, the Court notes that in its Report on the Merits
(supra para. 1), the Commission did not declare them victims of any violation of the
Convention; that in its application the Commission identified Mr. Kimel as the sole
beneficiary of the reparations and did not identify his next of kin as victims; that the
representatives did not assert a violation to the detriment of Mr. Kimel’s next of kin either;
and that, in its written closing arguments, the Commission stated that the damage resulting
from the facts of the instant case consists, inter alia, of the “moral damage inflicted on the
persons close” to Mr. Kimel, without requesting a declaration that a violation of a
conventional provision had been committed to their detriment.
102. In this regard, the Court reiterates that an injured party is a person who has been
declared a victim of the violation of a right enshrined in the Convention. According to the
Court’s case law, the alleged victims must be identified in the application and in the
Commission’s report as adopted pursuant to Article 50 of the Convention. Furthermore,
pursuant to Article 33(1) of the Court’s Rules of Procedure, it is incumbent upon the
Commission and not upon the Court, to accurately identify the alleged victims at the proper
procedural stage.78
103. The foregoing was not accomplished in the instant case and, accordingly, the Court
has not declared that a violation has been committed to the detriment of Mr. Kimel’s next of
kin.
B)
COMPENSATION
104. The representatives and the Commission requested the Court to set compensation
for both the pecuniary and the non-pecuniary damage caused to Mr. Kimel as a result of the
facts under discussion in the instant case. The Court will now examine the relevant
pleadings and evidence.
a)
Pecuniary damage
105. The Court has developed the concept of pecuniary damage and the circumstances in
which compensation therefor is in order.79
106. The Commission argued that Mr. Kimel “made significant pecuniary efforts with a
view to securing justice at the domestic level and overcoming the moral consequences of
the actions of the State of Argentina.”
107. The representatives noted that the State must compensate the victim for the “actual
damage” and “loss of profits” he sustained. As regards actual damage, they requested that,
the Court set on equitable grounds the sum of US$ 10,000.00 (ten thousand United States
dollars) for the “16 years of litigation,” expenses incurred on account of “photocopies,
stamps, transportation for court appearance purposes,” and the expenses incurred to
publicize “his court case to make it known to the public.” As regards loss of profits, they
argued that the facts of the instant case caused “Mr. Kimel to be held back as to new work
proposals and projects, a change of direction in his professional career, his loss of chance,
78
Cf. Case of the Ituango Massacres v. Colombia. Preliminary Objection, Merits, Reparations and Costs.
Judgment of July 1, 2006, Series C No. 148, para. 98, Case of Goiburú et al. v. Paraguay. Merits, Reparations and
Costs. Judgment of September 22, 2006. Series C No. 153, para. 29, and Case of Chaparro Alvarez y Lapo Iñíguez,
supra note 17, para. 224.
79
Cf. Case of Bámaca-Velásquez v. Guatemala. Reparations and Costs. Judgment of February 22, 2002.
Series C No. 91, para. 43; Case of La Cantuta, supra note 13, para. 213, and Case of Cantoral-Huamaní and
García-Santa Cruz, supra note 15, para. 166.