39
a)
evidence of non-pecuniary damage by the party alleging it is as
needed as that of pecuniary damage. However, pursuant to the Court’s
precedents, these are presumed in view of the circumstances of the case;
and
b)
it requests its acknowledgement of liability be considered as
reparation of the non pecuniary damages inasmuch as it contributes to “the
dignification of Wilson Gutiérrez and [that] of his next of kin.”
Considerations of the Court
82.
Non pecuniary damage may include distress, suffering, tampering with the
victim’s core values, and changes of a non pecuniary nature in the person’s
everyday life. As it is impossible to assess the value of the non pecuniary damage
sustained in a precise equivalent in money, for the purposes of full reparation to the
victims it may be effected in one of two ways. On the one hand, by paying the
victim an amount of money or by delivering property or services the worth of which
may be established in money, as the Court may determine exercising reasonably its
judicial discretion and applying equitable standards; and on the other hand by public
actions or works the effect of which, among others, be to acknowledge the victim’s
dignity and to avoid new violations of human rights.35
83.
The judgment, according to repeated international precedents, constitutes, in
and of itself, a form of reparation.36 However, owing to the circumstances of the
instant case, the suffering the events have cause the victims, the changes in their
way of living and the other consequences of a non pecuniary nature they bore, the
Court considers that it is meet, on equitable grounds, to pay compensation for non
pecuniary damage.
84.
Bearing in mind the various aspects of the damage the Commission and the
representatives allege, the Court determines, on equitable grounds, the value of
compensation for the non pecuniary damage according to the following standars:
a)
in order to determine the compensation for the non pecuniary damage
suffered by Mr. Wilson Gutiérrez-Soler the Court takes into account, inter
alia, that: i) he was arbitrarily arrested, subjected to torture which caused
him injuries in very intimate parts of his body; ii) doubts were cast on his
character, and on the motives that led him to report the events, during the
eight years the proceedings against him for the crime of extortion lasted,
wherein he was acquitted in 2002; iii) he suffered a campaign including
harassment, aggressions and threats, as a result of which campaign he was
forced to flee the country and he has remained abroad to date; iv) as a
result of the aforementioned events his family broke apart and he almost lost
his relationship with his son Kevin; v) those responsible for torturing him and
for the ensuing persecutions are still unpunished; and vi) all the above has
produced physical and psychological sequels that have affected all the
aspects of his life;
35
Cf. Case of Acosta Calderón, supra note 3, para. 158; Case of YATAMA, supra note 3, para. 243;
and Case of Indigenous Community Yakye Axa, supra note 7, para. 199.
36
Cf. Case of Acosta Calderón, supra note 3, para. 159; Case of YATAMA, supra note 3, para. 260;
and Case of Fermín Ramírez, supra note 3, para. 130.
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