A/HRC/22/45
whereabouts of the disappeared person and, in the event of decease, that person‘s body
must be returned to the family as soon as it has been identified, regardless of whether the
perpetrators have been identified or prosecuted.24
1.
Restitution
55.
Restitution is the act of restoring the victim, to the extent possible, to the original
situation before the violation was committed. In the case of enforced disappearance, these
measures include recovery of identity, 25 restoration of liberty or return to one‘s place of
residence. The Working Group underlines that, as full restitution is normally not possible in
the case of enforced disappearance owing to the irreversible nature of the harm suffered,
other forms of reparation, such as compensation and rehabilitation, should complement
restitution. Furthermore, it is important to emphasize that, even when restitution is possible,
reparation measures to return the victim to the status quo ante may need to remedy and
address prior situations of discrimination and/or vulnerability.
2.
Compensation
56.
The Working Group emphasizes that financial compensation is not sufficient in
itself and should be normally associated with other forms of reparation. 26 The Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law provide that compensation should be
provided for any economically assessable damage, as appropriate and proportional to the
gravity of the violation and the circumstances of each case, resulting from gross violations
of international human rights law and serious violations of international humanitarian law.
Principle 20 also provides a list of what may be considered economically assessable
damage: (a) physical or mental harm; (b) lost opportunities, including employment,
education and social benefits; (c) material damages and loss of earnings, including loss of
earning potential; (d) moral damage; or (e) costs required for legal or expert assistance,
medicine and medical services, and psychological and social services.
57.
Compensation is an important element of the right to an effective remedy,
particularly when restoring the victim to the situation ex ante is not possible, as is
frequently the case in many international crimes, including enforced disappearance. The
Working Group emphasizes that compensation should be full and ―adequate‖, namely,
proportionate to the gravity of the human rights violation (such as the period of
disappearance or the conditions of detention) and to the suffering of the victim and the
family.27
58.
The Working Group also emphasizes that monetary compensation should be applied
in a broad sense and must be given for any damage resulting from an enforced
disappearance, such as physical or mental harm,28 lost opportunities,29 material damages
24
25
26
27
28
See E/CN.4/2005/102/Add.1, principle 34.
See Inter-American Court of Human Rights , Case of Contreras et al. v. El Salvador, judgement of 31
August 2011 (available from www.corteidh.or.cr/docs/casos/articulos/seriec_232_ing.pdf), para. 193.
See A/HRC/19/58/Add.3, para. 54. The Working Group previously examined the issue of
compensation for victims of enforced disappearances in its annual report for 1997 (E/CN.4/1998/43).
In preparing that report, the Working Group wrote to countries with more than 20 outstanding cases
to seek information on each country‘s practice in this regard.
A/HRC/16/48/Add.1, para. 45.
The concept of non-pecuniary damages was developed by the Inter-American Court of Human Rights
to include ―both the suffering and distress caused to the direct victims and their next of kin, and the
impairment of values that are highly significant to the individual, as well as other changes of a nonpecuniary nature in the living conditions of the victims or their next of kin‖. See Contreras et al. v. El
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