Inter-American Court of Human Rights



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XIII

Reparations

Application of Article 63(1) of the American Convention

Obligation to make reparations

256. As stated in the preceding chapters, the Court has found that the State is responsible for violation of Articles 4(1), 5(1), 5(2) and 5(6) of the American Convention, in relation to article 1(1) thereof, and Article 19 when the victims were children, to the detriment of all the inmates at the Center in the period from August 14, 1996 to July 25, 2001 (supra para. 176); violation of Article 4(1) of the American Convention in relation to Article 1(1) thereof and in relation to Article 19 when the victims were children, to the detriment of the 12 deceased inmates (supra paragraphs 179, 184 and 186); Articles 5(1) and 5(2) of the American Convention, in relation to Articles 1(1) and 19 thereof, to the detriment of the children injured as a result of the fires (supra paragraphs 188 and 190); Article 5(1) of the American Convention, in relation to Article 1(1) thereof, to the detriment of the identified next of kin of the deceased and injured (supra para. 193); Articles 2 and 8(1) of the American Convention, in relation to Articles 1(1) and 19 thereof, to the detriment of all the children interned at the Center between August 14, 1996 and July 25, 2001 (supra para. 213); and Article 25 of the American Convention, in relation to Article 1(1) thereof, to the detriment of the 239 inmates named in the writ of generic habeas corpus (supra para. 251).


257. It is the jurisprudence constante of this Court that it is a principle of international law that any violation of an international obligation that has caused damage creates a new obligation, which is to adequately redress the harm done.139 Article 63(1) of the American Convention provides that:
[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.
258. As this Court has previously stated, Article 63(1) of the American Convention reflects a customary rule that is one of the fundamental principles of contemporary international law regarding the responsibility of States. When a harmful act occurs that is imputable to a State, the latter incurs international responsibility for violation of an international rule and thus incurs a duty to make reparation and put an end to the consequences of the violation.140
259. Reparation of the harm caused by the violation of an international obligation requires, whenever possible, full restitution (restitutio in integrum), which is to restore the situation as it was prior to the violation. If this is not possible, as in the instant case, the international court must order the adoption of measures to ensure that, in addition to guaranteeing respect for the violated rights, the consequences of the violations are remedied and that compensation is paid for the harm done.141 The responsible State may not invoke provisions of domestic law to modify or fail to comply with its obligation to provide reparation, all aspects of which (scope, nature, methods and determination of the beneficiaries) are regulated by international law.142
260. In many cases of human rights violations, such as the present case, restitutio in integrum is not possible. Therefore, taking into account the nature of the right affected and in keeping with the practice of international case law, reparation is made in the form of, inter alia, fair pecuniary and non-pecuniary compensation. The State must also adopt whatever positive measures are necessary to ensure that harmful acts such as those involved in the instant case do not recur.143
261. As the term suggests, reparations are the measures that will cause the effect of the violations committed to disappear. Their nature and amount depend on the damage caused at both the pecuniary and non-pecuniary level. Reparations cannot involve enrichment or impoverishment of the victim or his heirs.144 In this regard, any reparations ordered must be consistent with the violations established.145
262. In determining reparations in the instant case, the Court must consider the fact that there were children involved who were very poor and whose human rights were grievously violated.
263. Another factor this Court must bear in mind is that in the area of new law, an accusatory criminal justice system has been created in Paraguay that replaced its former inquisitorial system; juveniles in conflict with the law are no longer treated as adults. On November 26, 1998, a new Penal Code entered into force; on June 18, 1998, the Code of Criminal Procedure was enacted, and on November 30, 2001, the Child and Adolescent Code took effect, which describes in detail a special juvenile justice system and juvenile courts (supra paragraphs 134.57 and 214).
264. In the administrative area, the Project on Holistic Treatment of High-Risk Juveniles was launched in February 1999; in August 2001, an Inter-institutional Task Force was created to visit the correctional facilities; then in October 2001, the National Service for the Treatment of Juvenile Offenders was established. In addition, changes were made to the Center’s physical infrastructure, mainly in 2001; on May 10, 2001, the Itauguá Comprehensive Education Center was certified. The La Salle Comprehensive Education Center was certified in December 2001, but was later closed.
265. The Court appreciates the State’s initiatives, evidenced by the above-mentioned reforms (supra paragraphs 134.57, 214, 263 and 264), as they are a positive contribution toward bringing the State into compliance with its obligations under Article 19 of the American Convention.
266. Based on the evidence compiled during the case and bearing the above considerations in mind, the Court will now analyze the claims submitted by the Commission and by the representatives in the matter of reparations. It will first determine who the beneficiaries of the reparations are, and then order the measures of reparation aimed at redressing pecuniary and non-pecuniary damages, other forms of reparation and, lastly, the matter of costs and expenses.
A) BeneficiariEs



267. The Court will now summarize the arguments of the Inter-American Commission, the representatives and the State on who should be regarded as the beneficiaries of any reparations the Court might order.
Pleadings of the Commission

268. The Commission asserted the following with regard to the beneficiaries:


a) all the victims deprived of their liberty at the ‘Panchito López’ Reeducation Institute in the period from August 14, 1996 to July 25, 2001, must be compensated both individually and collectively;
b) all the victims who perished or were injured in the three fires that the present case involves can be identified; the many children and adolescents deprived of their liberty at the Center at various times can also be identified, as can all the juveniles who were interned at the Center at the time of its permanent closing in July 2001 and later transferred; and
c) the victims are not unidentifiable, as there are a number of ways to identify them individually and personally. Therefore, the Commission reasoned, it is not seeking anonymous reparations, but rather reparations for each and every victim.


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