University of Montpellier European Master's Degree in Human Rights and Democratisation A.Y. 2018/2019

UNIVERSITY OF MONTPELLIER
European Master’s Degree in Human Rights and Democratisation

A.Y. 2018/2019
COMPENSATING HUMAN DIGNITY:

“JUST SATISFACTION” AND INTEGRAL REPARATION
APPROACHES.
A Comparative analysis between the Jurisprudence of the European Court of

Human Rights and the Inter-American Court Human Rights.
Author: Bárbara María Ayala Zamora.

Supervisor: PhD. Katarzyna Blay-Grabarczyk.
1
Abstract
Reparations are intimately related to the effectiveness of the Regional Human
Rights Protection System. For the adequate protection of human dignity, it is
crucial that every system provides the right to reparation within its conventions. In
response to the lack of an integral system for reparation, the United Nations
created the “Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law” as a standard guide to the
international human rights law on reparations. However, the jurisprudence’s
practices and developments in the Inter-American Court of Human Rights and the
European Court of Human Rights, have made notable differences in recognition of
the right to reparations. The Inter-American System has opted to establish and
grant an integral reparation, providing a broader catalogue of measures and
remedies that states must adopt in specific cases for proper redress. While the
European System has differed substantially, and the right to reparation has been
based on the principle of subsidiarity, limiting its action, letting the states decide the
means and the form in which they will compensate the victim. Nevertheless, the
essential objective of reparation is to restore human dignity, which is recognized as
the guiding principle of human rights by international law and the regional systems.
Therefore, a theoretical and practical comparison between both systems is made
to visualize the most effective way to protect and human dignity.
2
TABLE OF CONTENTS
ABSTRACT .................................................................................................................................................. 2
LIST OF ABBREVIATIONS ............................................................................................................................. 5
INTRODUCTION .......................................................................................................................................... 6
I. THEORETICAL CONCEPTUALIZATION.................................................................................................. 8
A. CONCEPT OF DIGNITY ................................................................................................................................. 8
B. CONCEPT OF GROSS VIOLATION .................................................................................................................. 11
C. CONCEPT OF VICTIM ................................................................................................................................. 13
a. Direct victim ................................................................................................................................... 15
b. Indirect victim ................................................................................................................................ 16
D. CONCEPT OF REPARATIONS ........................................................................................................................ 17
E. A GENERAL IDEA OF THE EVOLUTION OF THE RIGHT TO REPARATION IN THE INTERNATIONAL PUBLIC LAW. ................ 20
a. Pecuniary ....................................................................................................................................... 22
i. Compensation ........................................................................................................................................... 23
b. Not Pecuniary ................................................................................................................................ 23
i. Restitution ................................................................................................................................................. 23
ii. Satisfaction ................................................................................................................................................ 24
iii. Rehabilitation ............................................................................................................................................ 25
iv. Assurances and guarantees of non-repetition .......................................................................................... 25
II. THE SYSTEM OF REPARATION IN THE JURISPRUDENCE OF THE INTER-AMERICAN COURT OF HUMAN
RIGHTS ..................................................................................................................................................... 26
A. INTEGRAL REPARATIONS MEASURES ............................................................................................................. 35
a. Restitution ..................................................................................................................................... 37
b. Rehabilitation ................................................................................................................................ 38
c. Economic compensation ................................................................................................................ 39
d. Satisfaction .................................................................................................................................... 40
e. Guarantees of non-Repetition ....................................................................................................... 42
f. Obligation to investigate, prosecute and, punishment. ................................................................. 44
g. Costs and Expenses ........................................................................................................................ 46
B. FACTORS INFLUENCING THE DEVELOPMENT OF CERTAIN REPARATIONS IN THE JURISPRUDENCE. .............................. 49
a. Criminal Factors ............................................................................................................................. 50
b. Inefficient national judicial system ................................................................................................ 51
c. Impunity ......................................................................................................................................... 52
C. THE CONCEPT OF DIGNITY IN THE JURISPRUDENCE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS ................... 53
III. THE SYSTEM OF REPARATION IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS
55
A. SPECIFIC MEASURES OF REPARATION ........................................................................................................... 61
B. FACTORS INFLUENCING THE DEVELOPMENT OF CERTAIN REPARATIONS IN THE JURISPRUDENCE. .............................. 67
a. Criminal Factors ............................................................................................................................. 67
b. Political Factors.............................................................................................................................. 69
c. Judicial Factors............................................................................................................................... 69
i. Complexity in the processes ...................................................................................................................... 69
ii. Natural Delays ........................................................................................................................................... 70
3
C. THE CONCEPT OF DIGNITY IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS............................ 70
IV. CASE ANALYSIS ................................................................................................................................ 73
A. ANALYSIS OF THE CASES. ........................................................................................................................... 76
CONCLUSION ............................................................................................................................................ 79
BIBLIOGRAPHY ......................................................................................................................................... 83
4
List of abbreviations
ACHR- American Convention on Human Rights

CoE- Council of Europe
CoM- Committee of Ministers
ECHR- European Convention on Human Rights
ECOSOC- The United Nations Economic and Social Council
ECtHR- European Court of Human Rights
IACtHR- Inter-American Court of Human Rights
IAComHR- Inter-American Commission of Human Rights
ICC-International Criminal Court
IHL-International Humanitarian Law
IHRL-International Human Rights Law
ICJ- International Court of Justice
ICL-International Criminal Law
ILC-International Law Commission
OAS- Organization of American States
PCIJ-Permanent Court of International Justice
UDHR-Universal Declaration of Human Rights
UN- The United Nations
5
Introduction
Human dignity should not be measured by financial compensation. However, in the

European system of Human Rights and its corresponding Court, the non-pecuniary
reparations are highly uncommon in practice. Though, in theory, they should follow
the established by the universal system, where both are contemplating the
pecuniary and non-pecuniary remedies. On the other hand, in the Inter American
Human Rights System, damages to human dignity are addressed in a more
sophisticated way, involving the non-pecuniary measures as satisfaction.
The direct attack of human dignity, loss of trust in the State, the trauma, anxiety,
and others mental pain are the most common harms caused when a human rights
violation happen. However, it is striking that practice of ECtHR provides almost
always a monetary reparation as an appropriate redress. Nevertheless, the
principle limitation of this project is the Art. 41 ECHR stipulates the figure of just
satisfaction, but in a different meaning than the Inter-American Court of Human
Rights does. The interpretation regarding reparation measures is more restricted.
Thus, the main research question that will guide the thesis is: How can the ECtHR
repair the damages to human dignity more comprehensively? The focus will
be put on the equity principle and whether it is sufficient when treating these
serious violations. Furthermore, why are the symbolic reparations being rejected
most of the time in the European system, when they could be much more effective
than monetary compensation? To clear out the point, the European system will be
compared with Inter-American system, that seems to have different values and
approaches towards such violations. Moreover, the discussion on the potential of
integral reparations to the improvement of European system will be held in
relations to the more proper evaluation of human dignity.
6
Methodology
The comparative analysis is going to be the first methodology to be applied in this

project, comparing the way to repair the human dignity in the Inter-American
System by the integral reparation between the European Human Rights system by
monetary compensation. The theories to be used in this project are going to be the
theory of human rights reparations, where the international and regional system
could be compared. The sources to be used, are going to be law sources as Inter-
American jurisprudence and European jurisprudence, as well as legal codes and
international treaties as primary sources.
Limitation of the work
Since, there is no consensus, not even of the basic terminology like a gross
violation, harm, and dignity, the main limitation of this work is the ambiguous
meaning of each term. Therefore, the analyses of how to provide an adequate and
effective remedy become harder and muddle. Hence, if the aim is to offer redress
to dignity for the damage caused in a gross violation, and the concepts are
confusion, it could expect that the result will be confused as well.
Even when international jurisprudence is invoked for clarification and proper

interpretation of this fact; each human rights protection system has a different
comprehension and analysis of these principles. It is true that they have supported
each other in the development of their respective jurisprudence, but in the absence
of a consensus on the terminology, doubt persists, and there are more probabilities
that the remedy to apply will not be the more adequate.
7
I. Theoretical Conceptualization
A. Concept of Dignity
Dignity is a common word that finds in the universal language of human rights, it is
inserted in most of the laws and international treatments. However, what is the
exact meaning of human dignity? What is the clear and strict definition of this
concept? These are the unsolved questions that surround this precept.
Etymologically, the word dignity derives from the word Latin "Dignitas" which mean
worthiness, "from dignus" worth1. As well according to the Oxford English
dictionary, human dignity means "The State or quality of being worthy of honour or
respect".2 Nonetheless, since human dignity is the ruler principle of human rights,
this notion goes further than the etymological and literary meaning. Therefore, it
deserves an in-depth analysis.
Despite find a definition of dignity could represent a big challenge, as many authors
proposed who have been tried to settle through the years a concrete meaning of
this concept. Though, as they have argued tried to establish a precise definition
about it, is a job every time more complicated since the principles, rules and way to
live of the society are in constantly changing.3 Consequently, this conception gives
a subjective connotation to this idea.
Though it is undoubtful, and most of the academics coincide that human dignity is
the base of all societies and if it does not know its value, the treatment becoming a
simple thing or object. They agree that the value of dignity is an intrinsic value of
the human being, which means that it does not give by anyone, on the contrary,
1
Etymonline.com. (2019). dignity | Origin and meaning of dignity by Online Etymology Dictionary.
[online] Available at: https://www.etymonline.com/word/dignity [Accessed 7 April 2019].
2
Oxford Dictionaries | English. (2019). dignity | Definition of dignity in English by Oxford
Dictionaries. [online] Available at: https://en.oxforddictionaries.com/definition/dignity [Accessed 18
May 2019].
3
Karla I Quintana Osuna, ¿Superposición de Las Reparaciones Otorgadas Por Comisiones de La
Verdad y Tribunales Regionales de Derechos Humanos? Una Aproximación a La Realidad
Interamericana (Comisión Nacional de los Derechos Humanos 2013).
8
the person has this value for the only fact to be a person, is acquired this value
from birth, without regard to race, nationality, religion, sex, sexual orientation or
other conditions.4
Consequently, the inherent interest of every person by the mere fact of being so
could be understanding as an essential core. Although, it is also this concept what
limits the behaviour of every particular, instituting the treatment and respect to
person as a person5 and not like an object. As well prohibiting acts that lead to
being humiliated, degraded or disdained.
However, there are some periods in life where the protection and respect of dignity
have been harder. It is the case that two world wars had to happen to consider the
adoption of the conception and introduction of human dignity as the guiding
principle of any system of protection of human rights. Thus, the need to recognize
dignity not only as an ethical principle but also as a legal norm arose. As well,
giving it of the broadest legal protection, establishing and tutoring it both in
domestic law and in the highest international standard.6
Therefore, the legal framework establishment is guided by the Universal

Declaration of Human Rights (here and after UDHR) wherein it preamble
determines:
“Whereas recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom,
justice and peace in the world (…)Whereas disregard and contempt for
human rights have resulted in barbarous acts which have outraged the
conscience of mankind, and the advent of a world in which human beings
shall enjoy freedom of speech and belief and freedom from fear and want
has been proclaimed as the highest aspiration of the common people”7
4
Universal Declaration of Human Rights 1948 63, ART. 2.
5
Matsuda, M. (2005). Human Dignity as a Normative Concept. [online] Cambridge.org. Available at:
https://www.cambridge.org/core/services/aop-cambridge-
core/content/view/F5C2D6F4C7A31D7DE2F6AD55670C24D4/S0002930000071074a.pdf/human_
dignity_as_a_normative_concept.pdf [Accessed 17 May 2019] P.3.
6
Montoya, O. (2019). Dignidad humana. [online] Diccionario Jurídico. Available at:
http://www.diccionariojuridico.mx/definicion/dignidad-humana/. [Accessed 17 May 2019].
7
Universal Declaration of Human Rights, Preamble.
9
Likewise, the Article I establishes:
“All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another
in a spirit of brotherhood.”8
Regardless of the above lines, where are not provide a clear definition of the
concept of human dignity. Both the Preamble and Article one, highlight the
importance and the impact of human dignity. At first, as the guiding principle of
society, from which they emanate the other essential principles as freedom, justice
and peace in the world. Thus, society could develop gently and respectfully.
Afterwards, this development began to see reflected in diverse international

bodies, which affirmed the importance of the recognition of human dignity, such as
the Helsinki Final Act. According to, with this international body “civil, political,
economic, social, cultural and other rights and freedoms derive from the inherent
dignity of the human person and are essential for its free and full development.”9
This argument is crucial because the value of dignity becomes invaluable as being
recognized as something inherent to the person, something that born with the
person, so as the human rights principle.
Due to the different conceptions and interpretation of the notion of human dignity; it
lets to conclude that human dignity is a spiritual and moral value, inherent of the
person. Nevertheless, the legal norm has to recognize this value, with the aim of
guarantee the freedom and respect of the human’s integrity as an ideal of social
good10. As well, it is based on the principle of autonomy of each person, without
exceeding limits or affecting the rights of third parties. Consequently, and once
following the criteria previously established, it can be in aptitude to carry out the
conceptualization and subsequently the materialization of dignity.
8
Idem. Art. I.
9
Art. 7 Osce.org. (1975). Conference on Security and Co-operation in Europe Final Act. [online]
Available at: https://www.osce.org/helsinki-final-act?download=true [Accessed 18 May 2019].P 6.
10
Matsuda, M. (n 5) 2.
10
B. Concept of gross violation
The right to provide reparation arises from the fact to have suffered a serious
violation of human rights. This violation in International Law calls gross violation or
massive human rights violations11. This perception has been developing and
gaining strength in the domestic and international jurisprudence within the
international human rights law and humanitarian law.12 Nonetheless, in the
beginning, the conception of this term was complicated to agree, as the Special
Rapporteur on the Right to Reparation to Victims of Gross Violations of Human
Rights Theo Van Boven argued in 1993.13 This notion acquired special attention by
the UN thanks to the principle’s guidelines that he provided as a way of the
recommendation in one of his studies.14
Due to this, the UN began to consider and cover broader protection in this topic,
distinguishing and conceptualizing the notion of gross and systematic violation of
human rights.15 Even if, before Theo van Boven’s recommendations, the UN had
already contemplated human rights violations, as reflected in ECOSOC resolutions
123516 and 1503.17 However, it was not until the implementation of this guideline
that more countries accepted the term gross violation and therefore constituted a
significant step forward in UN bodies by being addressed more broadly.18
11
High Commissioner for Human Rights, Rule of Law Tools for Post Conflict States: Reparations
Programmes (2008) 7.
12
REDRESS, Implementing Victims ‘ Rights (2006) 12.
13
Theo Van Boven, ‘Study Concerning the Right to Restitution, Compensation and Rehabilitation
for Victims of Gross Violations of Human Rights and Fundamental Freedoms.’ (1993) 287.
14
Idem. 342, point 4.
15
Geneva Academy of International Humanitarian Law and Human Rights, What Amounts to ‘a
Serious Violation of International Human Rights Law’? An Analysis of Practice and Expert Opinion
for the Purpose of the 2013 Arms Trade Treaty (2014) 9.
16
ECOSOC Resolution 1235 (XLII), 6 June 1967. The object of this resolution was mandated to the
Commission on Human Rights to examine relevant information on serious violations of human
rights and fundamental freedoms.
17
ECOSOC Resolution 1503 (XLVIII), 27 May 1970. This resolution aimed to establish a procedure
for examining communications concerning violations of human rights and fundamental freedoms.
18
Geneva Academy of International Humanitarian Law and Human Rights (n 15) 11.
11
On the other hand, some diverse authors propose that elements as quality,
quantity, time, and planning have to be taken into account to qualify a violation as a
gross, as well the type of the rights violated, the characteristics of the victims,
among others.19 However, there are some others which differ in this approach. For
instance, Bassiouni argues that the UN understands and implements the term of
gross violation, no as a particular category of violation of human rights. Instead, the
UN implements this term to describes situations that involve human rights
violations, referring the way that the damage or harm may have been committed or
their gravity.20
In parallel with this, the jurisprudence of the ICC strengthens this argument, which
provides in its definition of war crimes, genocide and crimes against humanity a
description of the situations and acts that cause serious violations of human rights,
mainly to the right to life and the right to the physical and moral integrity of the
human person.21 Such as murder, torture or other cruel, inhuman or degrading
treatment, slavery, enforced disappearances, deportation or forcible transfer of
population, prolonged arbitrary detention, violation of sexual and reproductive
rights, discrimination, deprivation of essential foodstuffs, essential primary health
care or basic shelter and housing.22 Ergo, the analysis of international
jurisprudence and doctrine shows that most of the human rights violations have a
criminal origin or criminal elements. Consequently, the jurisprudence of the ICC
has made significant contributions to the conceptualization of the gross violation
term.23
Another legal instrument who can be a useful reference for this concept is the
Vienna Declaration and Programme of Action, defining the ways of gross violation
and systematic violation, such as:
19
C. Medina Quiroga, The Battle of Human Rights, Gross, Systematic Violations and the Inter-
American System, (1988) 16.
20
Bassiouni, ‘Economic and Social Council’ (2000) 10236 The Complete Reference Guide to
United Nations Sales Publications, 1946–1978 18.
21
REDRESS (n 12) 13.
22
High Commissioner for Human Rights (n 11) 1–2.
23
Van Boven (n 13) para 13.
12
“(…)violations and obstacles include, as well as torture and cruel, inhuman and degrading
treatment or punishment, summary and arbitrary executions, disappearances, arbitrary
detentions, all forms of racism, racial discrimination and apartheid, foreign occupation and
alien domination, xenophobia, poverty, hunger and other denials of economic, social and
cultural rights, religious intolerance, terrorism, discrimination against women and lack of the
rule of law”24.
Therefore, both instruments coincide that there is no hierarchy regarding violation

of human rights. Adding that due to the principal characteristic is the obstacle of
the right’s enjoyment, there is no distinction between violation simple and grave.
So, the terms gross, abuse, massive, flagrant serious are used as a synonym
indistinctly. In addition to, both conceptions go beyond, and they do not limit to
consider the acts that affect only right to life or the prohibition or torture, but also
contemplate the economic, social and cultural rights, as the right to food and
essential primary health care. Hence, they offer a broader and more detailed
interpretation of this concept.
C. Concept of victim
Another essential element within the framework of the reparation theory is the
concept of victim. As it has established by international law, recognition of the
victim is essential for prompt, adequate and integral redress, for the harm that they
have had.25 However, as happened with the above-defined terms, the concept of
victim has been subjected for a terminological debate. Part of the difficulty in
defining this concept is due to the consensus absence of harm’s term.26 Likewise,
to find an exact definition of the term harm could represent a further step in the
consensus of the victim’s terminology.27 For practical purposes, some authors
proposed using the term “harm” as a synonym of injury, suffering, pain, anguish;
and its nature may be physical, psychological or economic.28
24
LM Singhvi, ‘Vienna Declaration and Programme of Action’ [2009] A tale of three cities 5, point
30.
25
Van Boven (n 13) 296 para 33.
26
Heidy Robouts, ‘Reparations for Victims of Gross and Systematic Human Rights Violations : The
Notion of Victim SYSTEMATIC HUMAN RIGHTS VIOLATIONS ’: (2003) 16 Third World Legal
Studies 89, 95. <http://scholar.valpo.edu/twls/vol16/iss1/S>.
27
Idem, 96.
28
Cherif Bassiouni, ‘The protection of “Collective Victims” in International Law’ (1988) 187.
13
Besides that, there are many international human rights treaties, that conceive the
notion of the victim, for instance, article 85 Rome Statute of the International
Criminal Court, article 9(5) ICCPR. Nevertheless, they seldom provide a precise
definition.29 Likewise, each system of human rights protection has had a diverse
approach to the victim concept. Not all systems agree that only the victim of human
rights violations will be entitled to adequate reparation; instead of that, they focus
on providing reparation of an injury party.30 Thus, the international jurisprudence
will clarify, on a broader way, this topic.
Consequently, the UN establishes a clear definition of this concept in principle 8 of

the Basic Principles and Guidelines on the Right to a Remedy and Reparation.
Where victims are describing as:
“persons who individually or collectively suffered harm, including physical or

mental injury, emotional suffering, economic loss or substantial impairment
of their fundamental rights, through acts or omissions that constitute gross
violations of international human rights law, or serious violations of
international humanitarian law. (….)”31
According, with this definition, there are three essential elements to highlight. The
first is the understanding that the victim could be any persona or collectivity of
person. The second the damage could be physical, emotional, economical, or
physiological. Third, acts or omissions can cause damages.
Moreover, this principle embraces the protection not only to the person who was
the direct target of the violation but also of any person affected indirectly by the
direct victim’s suffered. These people could be the immediate family or dependents
of the direct victim and person who have suffered harm in intervening to assist
29
International Commission of Jurists, The Right to a Remedy and Reparation for Gross Human
Rights Violations (2nd edn, International Commission of Jurists 2018) 32.
30
Robouts (n 26). P. 35
31
United Nations General Assembly, ‘Basic Principles and Guidelines on the Right to a Remedy
and Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law (A/C.3/60/L.24)’ (2005) 24 International & Comparative
Law Quarterly 1, 10 <http://www.journals.cambridge.org/abstract_S0020589300000063> principle
8.
14
direct victims or their relatives. Furthermore, these principles stipulate, the
obligation to provide fair treatment to the victim at all times, without discrimination
and respecting their dignity.32
Even, if the international jurisprudence does not maintain a homogeneous criterion

regarding the concept of victim — the majority of human rights protection systems
agreed that anyone who has been affected by human rights violation should be
considered a victim.33 Likewise, it is essential to highlight that the concept of a
victim is not limited only for a natural person. Also, a legal person is included and
recognized in the context of gross and systematic violation of human rights and
consequently entitled to be redress of this harm.
a. Direct victim
A direct victim as has been established in a general idea above is the natural or
legal person; individual or collective. That has suffered harm or loss of a physical,
economic, mental or phycological nature; in other words, any human rights injury or
risk that have been recognized by the domestic and international law. Also, it is
crucial to highlight that both the European34 and Inter-American35 system include
this idea within their jurisprudence.
The gross and systematic violation of human rights affected not only one person
but also communities or groups of people. Collective victims, as Bassiouni
describes, are “the groups of individuals linked by special bonds, considerations,
factors or circumstances which, for these very reasons, make them the target or
object of victimization.”36 Thus, there are also standard collective procedures that
are provided by the international human rights law and allow finding effective
32
Idem, Principle 10.
33
Robouts (n 26) 112.
34
Marckx v. Belgium. ECtHR, 13 June 1979, para 22.
35
Fornerón and daughter v. Argentina. (Merits, Reparations and Costs), IACtHR, 27 April 2012,
para 15.
36
Bassiouni (n 28) 183.
15
remedies to these kinds of violations. One clear example of this could be the
human rights violations of indigenous and tribal peoples.37
b. Indirect victim
On the other hand, Principle 2 of the Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, includes within the definition of "victim", the
immediate family, affective or economic dependents of the direct victim and
persons who have suffered harm in intervening to assist victims in distress or to
prevent victimization.38 This category has been adopted, after the made
recognition of the pain and suffering of the immediate family or dependents,
caused by the direct victim’s harm.
Even when this legal instrument clear stipulates that immediate family and
dependants (where appropriate) are indirect victims. The interpretation of this
conception by each UN body is different. Therefore, a profoundly and exhausting
analysis has to be made to demonstrate the precedence of this right. Because,
according to some of them, not all the immediate family might be contemplated as
a victim. Elements, as the affective or economic dependency with the victim, has to
be proved. As well, the direct damage suffered as a consequence of the human
rights violation of the victim.
Moreover, regional systems have also accepted this concept. Regarding the Inter-
American system, it could be exemplified in the case of the Gómez-Paquiyauri
Brothers v. Peru39, where a victim’s family experienced anxiety and impotent in the
face of the authorities, due to the torture suffered by the direct victim. Therefore,
the Court determined that there was a violation of article 5 of the ACHR, as the
37
International Commission of Jurists (n 29) 49.
38
Member States, ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power’ 7, Principle 2. <https://www.un.org/en/genocideprevention/documents/atrocity-
crimes/Doc.29_declaration victims crime and abuse of power.pdf>.
39
Gómez-Paquiyauri Brothers v. Perú. (Merits, Reparations and Costs), IACtHR, 8 july 2004.
16
family members suffered cruel and inhuman treatment. As well, the jurisprudence
of the ECtHR has made an exhaustive analysis of this concept, as it could note in
the case Koolen v. Belgium.40
Likewise, is contemplated the other notion of the indirect victim, which refers the
people who had suffered harm in intervening to assist direct or indirect victims of
human rights violations or preventing the victimization — for instance, lawyers,
psychologist and doctors. The most common situation that this kind of victim
experimented is harassment or extortion suffered by the victims’ lawyers or legal
defenders.41 Besides that, the international jurisprudence affirms that indirect
victims of human rights violations can become recognized as a direct victim of
another human rights norm violated. An example of this can be appreciated, in
those cases where there is still being a lack of action taken by the State
responsible for the first violation.42
Finally, due to both direct and indirect victims have the same right to redress their
human dignity by the harm suffered. There should not exist any substantial
difference between these categories.43 The differentiation has to make it with the
sole aim to get the victim’s status recognition because this recognition constitutes
per se a sort of repair.44
D. Concept of reparations
In a literary and straightforward definition, according to the Cambridge English

Dictionary, the concept of “reparation” could include two meanings. The first one is
40
Klass and others v. Germany. (Merits), ECtHR, 6 september 1978.
41
REDRESS (n 12) 19.
42
Robouts (n 26) 111.
43
Working Group on Enforced or Involuntary Disappearances, ‘General Comment on Women
Affected by Enforced Disappearances’ (2012) para 38.
44
Robouts (n 26) 112.
17
referring to the act of making up for something wrong that has been done, while the
second one indicates money to pay for this purpose.45
However, within the framework of human rights, this definition may embrace a
broader concept. Before delving the study of this precept, it is essential to mention
the three crucial obligations of the State: the obligation to respect, to protect and to
fulfil. The duty to respect means that the State must not interfere with the
enjoyment of the right. The responsibility to protect refers that the State must
safeguard the people for maltreatment and violations of human rights. The
obligation to fulfil infers that the country has to take the measures necessary for the
development and enjoyment of human rights.46 Thus, when the State does not
comply with these obligations, the legal order is damaged, provoking a new
responsibility in charge of the country, the obligation to repair.
In this way, the extinct Permanent Court of International Justice established for the
first time in the judgement “The factory at Chorzów” the positive obligation to
repair.47 In other words, the States duty to repair when a breach of international law
occurs, deleting all the consequences of the crime and returning the condition to
the original situation before the violation’s has happened.48 Hence, this case law
has been made essential contributions not only in building and improving the
responsibilities of the States but also to the development of reparation’s theory in
international law.
Due to this, it has served as a base of many international treaties and reports of
the UN. The International Courts have also taken this case as a starting point for
the establishment of reparations in their jurisprudence. First, to determine the
45
Cambridge Dictionary (ed), “Meaning of Reparation” (Cambridge University online) Available at:
https://dictionary.cambridge.org/es/diccionario/ingles-frances/reparation [Accessed May 14, 2019].
46
OHCHR, “International Human Rights Law” (OHCHR) Available at:
https://www.ohchr.org/en/professionalinterest/pages/internationallaw.aspx [Accessed May 14,
2019].
47
“Chorzów Factory” Germany v. Poland (Jurisdiction), PCIJ, 26 July 1927.
48
Zoraida Lucia and Becerra Becerra, ‘La Obligación de Reparar Como Principio Del Derecho
Internacional Público’ 83, 89.
18
responsibility of States for possible human rights violations and then for the award
of compensation for that injury.
Despite the paradigmatic meaning of the first judgment of reparation, there were
not any legal instrument in charge to redress the human rights violation. The only
existing reparation’s codification in the epoch was focused exclusively on
redressing the violations between the States. Nevertheless, in 2005 the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for the Victims
of gross violation of International Human Rights Law and Serious Violations of
International Humanitarian law was proclaimed by the General Assembly resolution
60/147 (Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law).49 This instrument was promulgated
as the international instrument in charge to guide the redress in the human rights
field.
Therefore, these Principles and Guidelines has the primary function to codify the
right to reparation in international law. It is denoting the concept of repair, as the
set of measures aimed at remedying a serious and gross violation of human rights.
These measures must be adequate, prompt and effective, for the successful
redress. At the same time, the guidelines, provide in a substantial and detailed
way the different types of remedies and the procedure through which it may
access.50 Likewise, it is essential to highlight that the principal and essential aim of
the reparation is healing human dignity. Consequently, these guidelines instituted
49
Jan Schneider, ‘Reparation and Enforcement of Judgments A Comparative Analysis of the
European and Inter-American Human Rights Systems’ (University of Mainz 2015) 59; UN General
Assembly, ‘Resolution 60/147 (Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law)’ (2005) 147 1.
50
REDRESS (n 12). P.8
19
the restitution, compensation, rehabilitation, satisfaction and guarantees of non-
repetition, as a form of redress the harm and restore the dignity. 51
Even so, there is not mandatory that a case has to contain all the redress
measures. Instead of, to grant appropriate and effective measure the different
circumstances of each case have to take into account. Though, full reparation may
require reconsidering taking as many actions as possible, if the situation so
requires. Additionally, the reparation cannot be represented the enrichment to the
victim neither the impoverishment to the perpetrator. As well, part of this notion
includes, the necessity to not only provide justice to the people who have been
affected by a violation of human rights. Also, an effective system of reparation must
contribute to the reestablish the legal order, justice in the society and the rule of
law52 by overcoming the stigmatization and restoring the rupture between victims
and society, which typically underpins harm.
E. A General Idea of the Evolution of the right to reparation in the

International Public Law.
The article 8 of the Universal Declaration of Human Rights provides that “Everyone
has the right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by law.” 53 This
affirmation has been essential in reparation’s theory, because, even if the above
paragraphs have affirmed that the Principles and Guidelines is the exclusive legal
instrument to provide the principle and procedure of remedies. This one had would
not be possible without the recognition in article 8 of the Universal Declaration.
51
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian
Law 2006 (The United Nations) 10, para 18.
52
High Commissioner for Human Rights (n 11) 10.
53
Universal Declaration of Human Rights 3; Art.8.
20
Because as is established in the guideline’s preamble, the creation of those has
been guided by the Universal Declaration.54
As well, article 8 of the UDHR is distinguished for opening the door to the
internalization of human rights.55 In other words, human rights were no longer a
matter of exclusively domestic jurisdiction and, at the same time, the international
level was no longer focused on disputes and issues between States. It conceded
direct participation as actors to every person who was the victim of a human rights
violation.
Moreover, as also detailed in the previous concept, the first jurisprudence to

include State responsibility and consequently, the concept of reparation has been
the case of the Chorzow Factory. Where the PCIJ determined, among other
things, that the principle of reparation is a fundamental principle of international law
and, therefore, any contravention of a commitment, made by the State entails the
responsibility to repair it.56 It is worth emphasizing that this jurisprudence served as
the basis for the subsequent creation of the International Law Commission Draft
Articles, from which the codification of the responsibility of the State can be
inferred. Besides, this legal compilation of State responsibility is seen as a
codification of valid customary international law.57
However, both the Principles and Guidelines and the ILC Draft Articles58, can only
serve as a guideline, because they do not have binding force. Despite this, the aim
that follows both legal instruments are essential, and therefore, both must be
applied in a national and international scope. The ILC Articles must be taken as the
54
Law para 2.
55
High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States: Reparations
Programmes (2008) 5.
56
“Chorzów Factory” Germany v. Poland (Jurisdiction), PCIJ, 26 July 1927, 29.
57
Karl, “Der Vollzug von EGMR-Urteilen in Österreich” 42; Shelton, “Righting Wrongs: Reparations
in the Articles on State Responsibility”, 4 AJIL 96 (2002), 833.
58
Dinah Shelton, ‘Remedies and Reparation’ in Oxford University Press (ed), Remedies in
International Human Rights Law (2nd edn, 2005).
21
starting point on issues of State responsibility concerning breach of any primary
obligation, including duties imposed in the field of economic, social and cultural
(ESC) rights,59 whereas the Basic Principles and Guidelines should be taken as a
useful tool to identify modalities, procedures and methods for the implementation of
existing legal obligations.60
On the other hand, there are more UN instruments also contemplate the right to a
remedy.61 They contribute with their provision to strengthening and broadly protect
this right at the international level. Every instrument has a different interpretation
for the meaning of this term; or sometimes they have the same connotation, and
they apply a different synonym of the vocable. The concept of reparation might be
establishing like “redress”, “remedy”, and another synonymous. Despite that, the
aim and the analysis that all of them have about this principle it is the same “the
restoration of human dignity when there is a human rights violation”.
Consequently, the International Human Rights Law has developed an extensive

roof of reparations that seeks to repair the vulnerable situation of the victim. These
reparations can understand in two important categories measures pecuniary and
non-pecuniary. The pecuniary measures are those measures that focus on
repairing the material and moral damage. While the not pecuniary measures are
base in other subcategories: restitution and rehabilitation, satisfaction and
guarantees of non-repetition.62
a. Pecuniary
59
ibid, 367.
60
ibid.
61
Article 2 of the International Covenant on Civil and Political Rights, article 6 of the International
Convention on the Elimination of All Forms of Racial Discrimination, article 14 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and article 39 of
the Convention on the Rights of the Child, and of International Humanitarian Law as found in article
3 of the Hague Convention respecting the Laws and Customs of War on Land of 18 October 1907
(Convention IV), article 91 of the Protocol Additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977,
and articles 68 and 75 of the Rome Statute of the International Criminal Court.
62
Quintana Osuna (n 3).
22
i. Compensation
This measure is applicable in the case where are principally involve economic and
material damages, like loss of earnings or legal expenses, but also it should be
applied to redress appropriately and proportionally the cases where moral,
phycological or mental damages exists. As well in cases of lost opportunities,
including employment, education and social benefits, will be involved.
Hence, this measure has not a punitive objective; instead of, it aims to calculate in
monetary terms the harm suffered by the injured party.63 Even if these measures
include moral and immaterial damages, according to principle 20 of the Basic
Principles and Guidelines, its proper application is pointed at material damage.
Therefore, this constitutes a clear differentiation between satisfaction and
compensation because satisfaction is focused on redress moral damages while
compensation will be responsible for restoring the material damage.64 At the same
time, it should note that compensation offers the possibility of transmitted the
amount of reparation to the victim’s heirs in cases where this party has died.
b. Not Pecuniary
i. Restitution
Restitution is the ideal of the remedies in the theory of the reparation because it
aims is to reestablish the situation as it was before the violation occurred. The
judgement of Chorzow Factory established this measure as a principle of
international law, essential for those who looked for redress as a consequence of
an act against international law.65 Also, this judgment proposed for the first time,
the restitution of the situation to the circumstances that would have existed if the
violation had not occurred.
63
REDRESS (n 12) 35.
64
Schneider (n 49) 64.
65
Lucia and Becerra (n 48).
23
However, according to the article 36 of the ILC Draft Article, in the situations where
the victim dies, and consequently, it is not possible restoring the situation as it was
before the violation occurred. The State or the perpetrator must compensate in
money for the damage caused. This legal instrument envisages a limited
conception of this remedy that it does not cover losses suffered due to the
situation. Thus, to achieve an integral reparation, it has also to contemplates a
diverse remedy to redress the harm.66
ii. Satisfaction
Satisfaction is the measure that will be applied in cases where neither restitution
nor compensation is sufficient to remedy the damaged right, covers a wide range
of non-monetary measures. The principal aim is a cessation of continuing
violations by measures tending in memory, justice and truth. Point 22 of the Basic
Principles and Guidelines, provides an example’s list of measures that contribute to
a broader and long-term to restore the dignity and the right of the victim.67
Moreover, three particular components should highlight in this measure: a) the

acknowledgement of the violation, b) the right to know the truth, and c) the
declaration of the wrongfulness of the act by the State.68 The acknowledgement of
the violation refers that, some victims of human rights violations, after had suffered
the harm they enfaced the process of not being believed of what really happened,
therefore the hearing of the victims also constitutes a way to reparation, because
as Griswold says, “the human rights violations victims have a strong necessity to
be heard, telling their story”.69
The right to know the truth includes the State’s obligation to take all appropriate
measures leading to the reconstruction of the facts and the clarification of the truth.
66
67
REDRESS (n 12) 38.
68
Idem, 38.
69
Quintana Osuna (n 3) 21.
24
States must seek the whereabouts of missing persons or their remains to be
returned to their relatives when there is no doubt of his death.70
On the other hand, the declaration of the wrongfulness of the act by the State could
be made by an official declaration to restore dignity. It aims to alleviate the
personal suffering of the victims; in some way, both parties may engage in a joint
reconstruction of the social fabric.
iii. Rehabilitation
Rehabilitation aims to guarantee victims of human rights violations the restoration

of their psychological or mental health. Victims have the right to and should receive
the necessary medical, psychological and social assistance and support in the
cases of had suffered harm.71
iv. Assurances and guarantees of non-repetition
These guarantees have the purpose of assuring the victim that human rights
violations will not be repeated. Special Rapporteur Arangio-Ruiz noted that even
when this type of remedy does not repair the harm caused by an unlawful act, they
are focusing on the reconstruction of the confidence in the society after a breach
has occurred.72 Assurances are usually given orally, while guarantees may require
the implementation of practical measures to prevent further breaches of the State
obligation.73
On the other hand, the regionals human rights protection systems have joint efforts
with the universal human rights protection system. This effort can be noted in the
jurisprudence of each one. However, this recognition has not constituted the
adoption of a standardized approach to reparations. Thus, it is a priority the
70
United Nations General Assembly (n 31) point 22.
71
REDRESS (n 12) 36.
72
73
Christian Walter and others, ‘Draft Articles on Responsibility of States for Internationally Wrongful
Acts (2001)’ (2011) II 1465, 89.
25
analysis of each mechanism’s vision. For the purposes of this paper, the European
and Inter-American systems will be analyzed.
II. The System of Reparation in the Jurisprudence of the Inter-

American Court of Human Rights
The American Convention of Human Rights, as well as the other human rights
treaties, are inspired by higher common values focusing on the protection of the
human being. These bodies can differentiate from other treaties due to their
particular nature endowing with specific monitoring mechanisms. They are
implemented following the notion of collective guarantee, enshrine obligations of an
inherently objective character, and regulate mutual interests between States
Parties.74 The right of the victims to claim about violations of human rights and in
consequences to get an appropriate remedy as the UN basics principles establish
is a right that is also contemplated by the Inter-American Human Rights system.
This right has recognized by the American Convention of Human Right in article
63, which reads:
“If 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. In cases of extreme gravity and
urgency, and when necessary to avoid irreparable damage to persons, the
Court shall adopt such provisional measures as it deems pertinent in
matters it has under consideration. With respect to a case not yet submitted
to the Court, it may act at the request of the Commission.”75
Since the beginning, this article provides a broader interpretation of the concept of
reparation. The Inter-American human rights protection system has characterized
for its notable and developed jurisprudence, in remedies subject, which has made
74
Constitutional Tribunal v. Peru. (Reparations and Costs), IACtHR, 24 September 1999, para 41;
Ivcher Bronstein v. Peru. (Reparations and Costs), IACtHR, 24 September 1999, para 42.
75
American Convention on Human Rights ‘Pact of San José, Costa Rica’ 1967 626.
26
remarkable contributions not only to the national ordinance of their States parties
but also in the international. This contribution may understand as the broader and
creative catalogue of remedies generated to heal the human dignity of victims who
have suffered gross injuries to their fundamental rights. The Inter-American Court
of Human Rights has been the body of this system in charging of making these
improvements.
Likewise, the Court has established a critical criterion regarding the victim’s
obligation to ask for a remedy. This mean, the State must repair the violations of
human rights, but also the victim should ask for a remedy. As well, besides the
primary role that the Court has to condemn States who fail to comply with their
human rights obligations. The Court also has expanded the power to guarantee the
restoration of the enjoyment of the injury party right conferred by Article 63(1) of
the ACHR. In other words, besides the judge’s power, the Court also may order an
effective redress, if it determines that any of the rights established by the
convention have been violated.
Furthermore, this development has served as a breakthrough by the rule of law’s

consolidation in Latin-American. Its benefits and uses are notable, in the individual
and collective dimension. For instance, measures as financial compensation,
scholarships, medical and psychological attention, are part of the individual
practice, while legislative amendments, human rights educations, re-open of
schools, are some clear examples of the collective advances.76
Also, the IACtHR’s evolution has always been guided by the principles of
international human rights law. The scope, nature, actions, measures, and the
determination of beneficiaries have always been within the limits of international
law has installed.77 The tribunal has adopted as an essential part of its progress
76
Jorge F Calderón Gamboa, La Evolución de La ‘Reparación Integral’ En La Jurisprudencia de La
Corte Interamericana de Derechos Humanos (Comisión Nacional de los Derechos Humanos ed, 1st
edn, 2013) 12.
77
Neira Alegría and others v. Perú (Reparations and Costs), IACtHR, 19 september 1996, para. 37;
American Convention on Human Rights, Article 63.1.
27
the international standard, with contemplates reparations as part of a customary
norm. This norm constitutes one of the fundamental principles of contemporary
international law on State responsibility. Therefore, under the Pacta sunt servanda
principle, States are to carry out their international law obligations in good faith.78
Consequently, the States cannot modify the judgment invoking their domestic law;
on the contrary, they have to fulfil all the requirements that the Court’s orders in the
way of reparation. This obligation is also covered by the articles 26 and 27 of the
Vienna Treaty Convention which demand that every treaty in force is binding upon
the parties to it and must be performed by them in good faith without any excuse of
their domestic law.79 Hence, the State must abide by what has accepted as abound
in the treaties and conventions it has signed.
On the other hand, the draft of the Basic Principles and Guidelines on the Right to
a Remedy and Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law written by
Theo van Boven and Cherif Bassiouni is one of the most remarkable Statement
that shows the influences of the jurisprudence of the IACtHR in the international
field. The authors have based on the experience of the IACtHR to provide a real
solution to the harm suffered from the human rights victims. As well, they took
advantage of the Court’s case law to design a catalogue with the diverse ways of
how a State could repair a violation efficiently.80 Before the creation of this guide,
they were not any parameter in reparation subject.
The first time that the IACtHR acknowledged the reparation as a right was in the
Velásquez Rodríguez v. Honduras case.81 Even though the Court has been a
78
Pérez-León-Acevedo Juan Pablo, ‘“The Situation of Reparations in the Inter-American Human
Rights System : Analysis and Comparative Considerations”‘ (2016) 20 ASIL Insights 1, 1.
79
United Nations, ‘Vienna Convention on the Law of Treaties, United Nations, Treaty Series.’
(1969) 1155 United Nations, Treaty Series 331, Art. 26. Art 27
<http://www.refworld.org/docid/3ae6b3a10.html>.
80
Van Boven (n 13).
81
Velásquez Rodríguez v. Honduras (Merits, Reparations and Costs), IACtHR, 21 July 1989, para
25.
28
pioneer in the implementation of integral remedies, in this case, it was only ordered
economic compensation as a remedy. Nevertheless, this was the first time
recognized not only the obligation to the State to prevent, respect and punishment
in the case of violation but also the obligation to repair. Therefore, this judgement
marked a paradigm in the development of the Inter-American system. As well, this
invention helped to the involvement and influenced the domestic law of the State’s
parties in the human rights field.
Even if the traditional remedy has been the economic compensation, through the
years, the international community has raised the need for more effective
measures which help to heal human dignity.82 In the Latin-American system, the
different factors and the socio-political context of the countries, made the Court
consider a broader analysis. For instance, the cases regarding enforced
disappearance caused a massive impact on the interpretation of the Court. The
disposed of that the enforced disappearance phenomenon represented a direct
violation for the jus cogens principle, because it occurred in the context of a
systematic practice of “State-sponsored terrorism,” at a regional level’.83
Hence, the IACtHR found itself in dire need to create a more detailed and
analytical jurisprudence practice concerning the healing of human dignity, adopting
the criterion of granting integral reparation. As Judge García Ramírez argues “It is
interesting to note how progress has being made in the area of reparations in each
new judgement on the matter issued by the Court, and even in decisions on the
merits.”84

Besides, the Court also has recognized the different categories of victims, direct
and indirect85, adopting the same criterion that the universal protection system
does. Nevertheless, the Court has developed its law in cases where the benefit of
82
Shelton (n 58).
83
Gelman v. Uruguay, (Merits, Reparations and Costs), IACtHR, 24 February 2011, para 99, 131.
84
Sergio García Ramírez, ‘Las Reparaciones en la Jurisprudencia de la Corte Interamericana de
Derechos Humanos’ (1999) 131.
85
Cesti Hurtado v. Perú (Merits, Reparations and Costs), IACtHR, 31 May 2001, para 54; Garrido
and Baigorria v. Argentina (Merits, Reparations and Costs), IACtHR, 27 August 1998, para 50.
29
reparation passes to the victim’s heirs.86 The cases where the victims had died, the
right to receive reparation passes automatically to the successors.87
The victim may participate autonomously and independently in all stages, as well
as in the hearings and closing arguments. Also, this party has access to intervene
in the hearing presenting its claims for reparations.88 Nevertheless, during the
process in faced of the Court, the victims will be represented all the time by the
Inter-American Commission on Human Rights.
Moreover, another contribution that this system has made could be noted in the
significant number of cases related with the injuries against civil and political rights
or criminal cases as torture, extrajudicial killings or executions, enforced
disappeared, that in the past were occupied the attention of the Court.
Nonetheless, currently, the decisions regarding the gross violation of social and
economic rights have increased meaningfully in the judgments of the Court.89 For
instance, the Kaliña and Lokono Peoples v. Suriname case, the Court found
serious violations of the rights to collective property, to home, and the guarantee of
effective participation.
Furthermore, the recognition of the injury party, is also essential to identify the type
of damage within the framework of the reparation theory. Because depending on
the damage, it will be the form to redress it, also the way will fit the quantum of the
reparation.
The IACtHR’s practice as well has shared the criterion establishes by the UN
Principles and Guidelines. Thus, it has classified the type of damages in two main
86
Robouts (n 26) 107.
87
Velásquez Rodríguez v. Honduras (Merits, Reparations and Costs), IACtHR, 21 July 1989.
88
Calderón Gamboa (n 76) 17.
89
Kaliña and Lokono People v. Suriname (Merits, Reparations and Costs), IACtHR, 25 November
2015.
30
categories: pecuniary damages and non-pecuniary damages.90 Regarding the first
category, the Court has repaired damages including emergent damage, loss of
profit, damage to the family patrimony and reimbursement of costs and expenses
while the other variety of damage has understood the moral, psychological,
physical, life plan and collective or social spheres.

Material damage
This term was implemented for the first time by the Permanent Court of
International Justice (PCIJ) in the Chorzów Factory case, “Material damage
denotes to injury to property or other interests of the State and its nationals which
is assessable in financial terms.”91 For material damage, the IACHR takes typically
into account damnum emergence (actual loss), loss of earnings, lucrum cessans
(future, expected loss) and damage to family patrimony.92 In all cases, reparation
may consist of the award of an amount of money in economic compensation.
However, sometimes, the Court also has ordered other kind of measures, such as
restitution, rehabilitation or satisfaction.93 The standard condition that the Court
requires is to prove the causal link between the damage claimed, and the violation
suffered.94
Damnum Emergens (actual loss)
They are all the direct and immediate expenses incurred by the victims or their
representatives in order to redress the wrongful act or to cancel its effects.
Examples of this type of damage may be: fees for the steps taken by the victim’s
relatives in different locations, quantifiable medical and psychological payments,
90
91
92
Ivan Dimitrijević, ‘Remedies for Human Rights Violations in Jurisprudence of the European Court
of Human Rights and Their Execution by Members States. LLM International and European Law
Master Thesis’ (Tilburg University 2017) 9.
93
Ituango Massacres v. Colombia (Merits, Reparations and Costs), IACtHR, 1 July 2006, para. 375.
94
Ricardo Canese v. Paraguay (Merits, Reparations and Costs), IACtHR, 31 August 2004, para.
203.
31
expenses incurred for the death of a person (funeral expenses), costs related to
the procedures carried out to clarify the causes of the events,95 travel costs
incurred by families to visit the victim during the deprivation of liberty.96 The
Tribunal has insisted in the need to prove the existence of the causal link between
the injuries and the facts reported.
Loss of earnings or Lucrum Cessans (future, expected loss)
The Court has conceived this type of damage as the income that the victim has lost
cause as a result of the violation. As well in the cases of extrajudicial execution or
forced disappear where the victim had died it defines as the income that the person
could receive during his or her probable life.97 The calculation for the surviving
victims is based on the time that the victim remained without work as a
consequence of the violation. On the other hand, the Court has recognized how
difficult it can be to prove this affectation, thus it has established that wage for the
corresponding activity in the country must be taken as the basis, in the absence of
precise information on the real income. The IACtHR also considers the work and
the conditions that the victim was doing at the time the violation was committed, for
instance, if the victim was studying or was an employment.98
Damage to family patrimony
This type of damage occurs when as a result of the illicit facts, the victim and
her/his family members incurred in expenses.99 It implies a substantial change in
living conditions and quality of life resulting from the direct consequence of the
95
“Street Children” v. Guatemala (Reparations and Costs), IACtHR, 26 May 2001, para. 80.
96
Cantoral-Benavides v. Peru (Reparations and Costs), IACtHR, 3 December 2001, para. 51.
97
Anzualdo Castro v. Peru. (Reparations and Costs), IACtHR, 22 September 2009, para. 213.
98
Velásquez Rodríguez v. Honduras (Reparations and Costs), IACtHR, 21 July 1989, para. 47.
99
Claudio Nash Rojas, Las Reparaciones Ante La Corte Interamericana de Derechos Humanos
(1988 - 2007) (Second Edi, University of Chile 2007) 46
<http://www.libros.uchile.cl/files/presses/1/monographs/389/submission/proof/files/assets/common/
downloads_a11f2144/page0001.pdf>.
32
violation not only for the victim but also for her/his family.100 The abandonment of
the parents and family’s work, relocation expenses due to the exile of the family,
loss of possessions, social reincorporation, as well as detriment to the physical,
psychological and emotional health of the affected family, are clear examples of
this kind of damage.
Immaterial damage
For immaterial damage, the Tribunal assesses psychological or physical damage.

Likewise, in a strict way the Court has developed this concept as “the suffering and
distress caused to the direct victims and their next of kin, and the impairment of
values that are highly significant to them, as well as other sufferings that cannot be
assessed in financial terms.”101 It is essential to highlight the recognition made in
this concept to heal not only the suffering experienced by the victims, but also the
transgression of the values significant for them. Thus, this precedent marks a great
contribution made by the Court, because it takes the victim as a whole, where
subjectivity and self-esteem should be considered when determining the scope of
reparations.102
In the same way, the denial of justice is a conception of this type of damage that
the Court provides as an innovative. The Court argues that the persistent lack of
justice and impunity affects the psychological and moral integrity of the victims,
causing immaterial damage evidenced by frustration and other psychological and
emotional injury.103 Besides, the Tribunal has established that situations such as
torture, aggression, enforced disappearance and others, the anguish, terror,
impotence and insecurity of the victim become evident. Therefore, the standard of
100
Baldeón-García v. Peru (Merits, Reparations and Costs), IACtHR, 6 April 2006, para. 186.
101
“Street Children” v. Guatemala (Reparations and Costs), IACtHR, 26 May 2001, para. 84.
102
Rojas (n 99) 53.
103
Almonacid-Arellano et al. v. Chile (Merits, Reparations and Costs), IACtHR, 26 September 2006,
para. 124.
33
burden of proof on the victim is more flexible, and it is not mandatory to prove such
circumstances.104
Moral and Psychological (Pain and suffering)
The IACtHR conceives the moral damage as a subcategory of the immaterial

damages. The Court considers that moral damage is compounded by damage to
honour, suffering and pain resulting from injury, arising as a result of the
humiliation to which the victim is subjected, when his/her human dignity is
unknown. On the other hand, the psychological damage is formed by pathological
alterations of the psychic apparatus as a consequence of a trauma derived from
the violation of human rights suffered by the victim.105
The Moral harm is usually repaired employing economic compensation, although

mainly in the case of serious and massive violations of human rights, the
investigation, prosecution and eventual punishment of those responsible also play
an essential role as reparation for moral damages, depending on the
characteristics of the case.106 While in the cases of the phycological damage the
rehabilitation plays the central role in this kind of damage.
Damage caused to the victim’s life plan
Within the Court’s broad interpretation of the possible damages suffered by a

victim, the concept of damage to the life project has been included. It was
developed for the first time in the case of Loayza Tamayo v. Peru.107 The
disturbance or affectation to the victim’s goals as a consequence of the violation of
a human right configured this damage. In other words, the life plan is the future
104
Case of the 19 Merchants v. Colombia. (Reparations and Costs), IACtHR, 5 Jul 2004, para. 248.
105
Velásquez Rodríguez v. Honduras (Reparations and Costs), IACtHR, 21 July 1989, para. 51.
106
Contreras and others v. El Salvador. (Merits, Reparations and Costs), IACtHR, 31 August 2011,
para. 185.
107
Ibid.
34
possibilities of a person, to achieve his/her objectives or life plans set by him
according to his aptitudes, capacities and circumstances. The damage is
configured by disruption a person from achieving his or her life project.108 The
Inter-American Court is a forerunner in interpreting and contemplating this criterion.
Collective
This damage is defined as the violations that affect a group of people in their
capacity as a community. Collective damage affects the social fabric formed by
these groups, which the State must repair jointly. These damages have been
conceived mainly in cases of massacres or the rights of indigenous and tribal
peoples or other collectives. In most of these cases, the Court has determined
redressed through restitution measures.109
A. Integral reparations measures
Firstly, the Court has settled that the judgment declaring a violation of human rights
constitutes per se a form of repair110. However, in practice, this is the beginning of
the list of reparations measures that it imposes. Likewise, as international
jurisprudence has established the reparation par excellence is restitutio in
integrum. Nevertheless, when the restitutio in integrum will not possible (as in most
cases it is not), the Inter-American Court will order the State to adopt other
measures to redress "the consequences of the situation that constituted the breach
of such right or freedom be remedied and that fair compensation be paid to the
injured party."111
Consequently, as previously mentioned, Article 63 of the Convention gives the

Court a broad mandate to act in the area of reparations, sanctioning not only acts
108
Loayza Tamayo v. Peru. (Merits, Reparations and Costs), IACtHR, paras. 148 y 149.
109
Mayagna (Sumo) Awas Tingni Community v. Nicaragua (Merits, Reparations and Costs),
IACtHR, 31 August 2001.
110
“Las Dos Erres” Massacre v. Guatemala (Merits, Reparations and Costs), IACtHR, 24 November
2009, para 290.
111
American Convention on Human Rights ‘Pact of San José, Costa Rica’ Art. 63 (1).
35
that damage dignity but also imposing actions to repair it. Therefore, unlike other
systems, the Court does not cover a subsidiary role before the States instead of
that it interprets and directly imposes the forms and measures to be adopted by the
perpetrator to grant effective reparation. In order to achieve this objective, the
Court has insisted on the need to adopt integral reparation. Which means that in
addition to the economic compensation provides in Article 63(1), other types of
measures that adjust to the reality and the specific case of the violation, must be
taken into consideration.
Thus, the Tribunal has held that integral reparation is only possible to achieve
when the measures provide to the victim a satisfaction beyond financial
compensation. For instance, the recognition of the responsibility of the State,
avoiding the State from enforcing a fine imposed to the victim, providing
psychological and medical care and treatment to victims and relatives of victims,
the award of scholarships, are practical and clear examples of effective measures.
Likewise, these measures have to be aimed to avoid repetition in the future of facts
of that nature: legislative changes, human rights education of State officials,
investigate and sanctioning of those responsible for facts, implementation of a
register of detainees, among others.112 The first time that the Court considered to
use integral reparation was in the case of Aloeboetoe and others v. Suriname,
wherein the form of reparation that the Court ordered was reopen a school, and in
this way, the children of the victim could receive education.113
Hence, the different ways of repairing vary according to the injury produced. Based
on the United Nations "Basic Principles and Guidelines" for Reparation, the Court
has classified integral reparation measures as follows: restitution, rehabilitation,
112
Centro por la Justicia y el Derecho Internacional (CEJIL), ‘Las Reparaciones En El Sistema
Interamericano de Protección de Los Derechos Humanos’ [2004] Revista CEJIL 1.
113
Aloeboetoe and others v. Suriname (Reparations and Costs), IACtHR, 10 September 1993,
para. 96.
36
economic compensation, satisfaction, guarantees of non-repetition, obligation to
investigate, prosecute and, punishment and litigation expenses.114
a. Restitution
The reparation theory has established that “reparation” is a secondary right, which
is born as a consequence of the primary right violations. Thus, the ideal is that the
violation had not happened, because in this way, the primary right still being
intangible. Nevertheless, when this is not possible, and the violations occurs the
most suitable remedy is to restore the things to the State they were in before it
occurred. In other words, the IACtHR conceives the restitution as the action to
restore the situation that existed before the violation. This concept covers both
material restitution and restitution of rights.115
The IACtHR has ordered an endless number of measures of restitution. Due to the
needs and violation of the victim will be the measure to adopt by the Court. The
following are some examples of this: return the victim to work and pay wages and
other benefits, from the day of detention until the date of the Court’s judgement; the
restoration of a person’s freedom; order the State not to execute a fine imposed on
the victim; ensuring the full enjoyment of the victim’s right to retirement; the
reinstatement of the position held by the victim before to the violation of human
rights suffered; ensure that internal decisions advising the victim, do not produce
legal effects; allowing the exhibition of a film116; the elimination of criminal or
disciplinary records117.
Besides, this kind of measures have been more visible in the cases involves
Indigenous peoples and tribal violation’s rights. The Court has disposed that
114
Law.
115
116
Centro por la Justicia y el Derecho Internacional (CEJIL) (n 112) 2.
117
Acosta Calderón v. Ecuador (Merits, Reparations and Costs), IACtHR, 24 June 2005.
37
restitution of the land has constituted the fundamental way to address the claims
and damages to these groups of victims.118 Even, the most recent contribution of
the Court within this measure has undoubtedly been the reunification of illegally
abducted children with their parents119. Consequently, these examples can prove
how involved is the Court in the process to find a fair and effective redress.
Nonetheless, in some cases, the Tribunal has imposed some measures as a

reinstitution way, but it could be also fit in another measure’s category, although
the effects will be the thing to analyse. For instance, the persisting and permanent
implementation of education and training programmes and courses on issues such
as human rights and gender.120
b. Rehabilitation
Before describing this measure, it is indispensable to point out that public health
remains a non-existent concept in most Latin American countries. Even though
countries such as Mexico, Colombia, Peru121 or some other American States have
implemented universal health coverage plans, yet the existing gap with Europe
remains abysmal. Therefore, the recovery of the physical or physiological damages
to the human rights violation’s victims have become another difficulty.
Hence, rehabilitation measures offer the victim the opportunity to have medical,
physiological and physical access, which the State in a normal situation would not
provide. Also, this category has to include legal and social assistance. This
measure can be collective or individual.
118
Sawhoyamaxa Indigenous Community v. Paraguay (Merits, Reparations and Costs), IACtHR, 29
March 2006, para 210.
119
Contreras and others v. El Salvador (Merits, Reparations and Costs), IACtHR, 31 August 2011,
para 195.
120
“Cotton Field” v. Mexico (Merits, Reparations and Costs), IACtHR, 16 November 2009, para. 22.
121
Giorgi Jerónimo, “La Recaudación Impositiva En América Latina Es Baja.” [2017] El Observador
Available at: https://www.elobservador.com.uy/nota/-como-es-la-salud-en-america-latina—
2017127500 accessed May 10, 2019.
38
The Tribunal has imposed the State providing rehabilitation either through public or
private institutions, but always free of charge to the victim. In the same way, in the
case where the victim does not live in the perpetrator State, the IACtHR has
determined that the State must pay a monetary sum to the victim. So, in this way,
the victim can take the pertinent rehabilitation, it could be psychological or medical,
in the State where she resides.
Furthermore, there are some cases where the Tribunal has interpreted this
measure beyond medical and psychological rehabilitation. For instance, in Xákmok
Kásek v. Paraguay, the Court determined the supply of drinking water, adequate
food supplies, medicine supply and sanitary facilities.122
c. Economic compensation
This type of measure is settled in article 63.1 of the Convention, and it could
understand both material and immaterial damages.123 Regarding the material
damages, the Court has analysed the patrimony consequences causing by human
rights violations. The Court has made this analysis based on two main captions:
the emerging Damage and Loss of Profit. Examples of this could be the lost
patrimony causing by the human rights violation, as well the loss of the detriment
earnings of the victims.124
On the other hand, regarding moral damages, the Inter-American Court

understands that this comes from the psychic effects suffered as a consequence of
the violation of rights and liberties. Since it is evident and proper to human nature
that any person subjected to aggression and injuries experiences moral suffering,
this category is not necessary to prove it when the victims are close relatives or the
122
Xákmok Kásek v. Paraguay (Merits, Reparations and Costs), IACtHR, 24 August 2010, para
301.
123
124
Ramírez (n 84) 144.
39
effective family treatment were evident.125 Consequently, material damages are
quantifiable in monetary terms and recoverable in the same way. Nonetheless, this
is not the case for morals, which are unquantifiable by their nature. However,
monetary compensation is admitted in the absence of a better one or combination
with any other measure.
Moreover, following the established line by the international doctrine of human

rights, the Court has found that compensation has a compensatory character
aiming to heal the injured victim, but not punitive.126 Therefore, the punitive
damages, which would correspond more to a fine than to reparation, are
excluded.127 Likewise, it has also clearly established that a correct compensation
"cannot imply enrichment or impoverishment for the victim or his successors, and
must be linked to the violations declared in the Judgment".128
The Court has estimated that the particular circumstances of the case will
determinate the nature and amount of compensation. Thus, it insists on the needed
to analyse each one individually. However, in practice, the IACtHR has established
the precise manner in which compensation will be calculated. Therefore, the
victim’s claims and the evidence provided will be guiding this criterion.
Notwithstanding, sometimes, due to the passage of time or other various factors, it

is not possible for the victim to reliably prove the losses suffered. In these
situations, the Court can calculate based on equity the amount that the State will
have to pay for this concept.129
d. Satisfaction
125
Aloeboetoe et al. v. Suriname (Reparations and Costs), IACtHR, 10 September 1993, para. 52.
126
Godínez Cruz v. Honduras (Reparations and Costs), IACtHR, 21 July 1989, para. 36.
127
128
“Cotton Field” v. Mexico (Merits, Reparations and Costs), IACtHR, 16 November 2009, para.
450.
129
González Medina and family v. Dominican Republic, (Merits, Reparations and Costs), IACtHR,
27 February 2012, para. 313.
40
According to the judgement “Cotton Field” v. Mexico, these measures do not have
a pecuniary scope but a public repercussion. They aim to repair the dignity of the
victim, healing the suffering and distress caused by the violation and any alteration,
of a non-pecuniary nature. As well, it seeks the recognition of the dignity and
reincorporation of values very significant to persons, helping redirect its life or
memory in the conditions of existence of the victims.130
Furthermore, the Court insists once again that the example of a measure of
satisfaction for excellence is the judgement itself.131 Because there are
condemned the human rights violations, is judged the perpetrator, it also
recognizes the violation of human dignity and establishes the way for the healing
the injury. As mentioned by Judge Sergio García Ramírez, satisfaction seeks in a
broad sense to compensate for the detriment of non-patrimonial goods. While an
abstract sense provides specific measures to rescue and preserve the honour of
the victim on the community.132
Due to this measure is focusing on restoring the victim’s dignity and memory
through the truth and justice, it could be achieved in diverse ways. The most
prominent ways in which the State can perform these acts are through public
recognition of the violation, publication of the sentence in the official gazette and
the newspaper with the largest circulation. In addition, occasionally the Court has
ordered the public translation of the judgement into the victim’s language, and a
summary of it aiming to becomes more comprehensible to all readers.133
On the other hand, the Court has implemented as measures of satisfaction the
tributes or commemorative acts, through actions that rescue the memory of the
victims, especially in cases of violations to the right to life, freedom and torture. For
130
De la Cruz Flores v. Peru, (Merits, Reparations and Costs), IACtHR, 18 November 2004, para
164.
131
582.
132
Ramírez (n 84) 156 para 2.
133
Tiu Tojín v. Guatemala, (Merits, Reparations and Costs), IACtHR, 26 November 2008, para.
108.
41
instance, building a monument in commemoration of the victims134; naming a
street, plaza or school by the victim’s name in memory of them135; the production of
a documentary video on the life of the victim or victims, or some subject related to
the specific case136. The Court has argued that relevance of this specific measure
lies in the recovery and re-establishment of the historical memory for a democratic
society.137
Moreover, the Tribunal has established within its judgement the obligation to grant
scholarships, including living expenses or other costs corresponding to eventual
tuition and educational material, in favour of the victims and their families. As well,
the creation of social programs or development funds, implemented from the
national budget, are part of this measure.
Similarly, as happens with public health, public education is a right that is restricted
in many Latin-American States. Even if this right is recognized, the conditions and
circumstances for granting it universality are not provided. Therefore, this measure
of satisfaction has marked a significant advance in Latin America, carrying benefits
not only to the victims, but also the population in general.
e. Guarantees of non-Repetition
The main propose of this measure is to avoid the recurrence of the actions that
gave rise the violation. It has been created as an assurance that the victim would
not have injured their rights again. The establishment of this measure has been
focused in those States that have a high level of recurrence in the human rights
violation, because of their politics, the absence in the human right’s education in
134
471.
135
“Street Children” v. Guatemala (Reparations and Costs), IACtHR, 26 May 2001, para 103.
136
Contreras and others v. El Salvador. (Merits, Reparations and Costs), IACtHR, 31 August 2011,
para. 210.
137
The “Gómez-Paquiyauri Brothers” v. Peru. (Merits, Reparations and Costs), IACtHR, 8 July
2004, para. 236.
42
the executive level, corruption or weak legislative and judicial measures against
human rights violations.
Consequently, the Court, as part of this measure, has mainly ordered the
amendment of the legislation in the countries. As well, it has insisted the need to
an independent and impartial judicial power, which means effective control of the
police and army forces. A clear example of how this measure has been
implemented could be seen in the case of “Radilla Pacheco v. Mexico” where the
Court determined the typification to the enforced disappearance figure in the
criminal code.
Thus, it marked a notable improvement not only in this country but also in the rest
of Latin-American. Likewise, the IACtHR held that if this crime is already
criminalized, it should be modified if the essential requirements for proper
investigation and prosecution are not met.138
Moreover, the Court has placed particular emphasis on cases involving persons
deprived of liberty. Thus, the adoption of appropriate measures has been ordered
to “strengthen existing control mechanisms in State arrest centers, to guarantee
adequate arrest conditions and respect for the due process of the law”.139 As well,
the Court has estimated the obligation to the State to take action in the
improvement of prison conditions compatible with human rights and international
law.140
On the other and, other measures adopted by the Court as a guarantee of non-
repetition are the training programs for State officials. The proposing of this
measure is to provide new knowledge and skills in innovative situations aiming to
offer specialization and better performance in the task assigned, in adherence to
138
Palamara Iribarne v. Chile. (Merits, Reparations and Costs), IACtHR, 22 November 2005, para.
254.
139
Gutierrez Soler v Colombia (Merits, Reparations and Costs), IACtHR, 12 September 2005, para.
112.
140
Yvon Neptune v Haití. (Merits, Reparations and Costs), IACtHR, 6 May 2008, para. 183.
43
human rights.141 These programs are mainly aimed at judges, magistrates, judicial
auxiliaries, public ministries, police, the armed forces, doctors, psychologists,
prison officials and others. Likewise, the Court has ordered the education and
creation of programmes focusing on the general society to create awareness and
sensitize on women’s rights, gender and stereotypes.142
Finally, regarding this measure, the Tribunal has decreed the duty to protect
human rights defenders as well as vulnerable groups for their work, such as
professionals in law and health. Likewise, according to the International Human
Rights Law, the guarantees of non-repetition not only seeks to avoid the facts of
the violation happening again to the victim but also, they have a general scope. In
other words, they tend to prevent harm to any other person.143
f. Obligation to investigate, prosecute and, punishment.
This measure finds its legal basis in the articles 8 and 25 of the ACHR, which
provides the right to access to justice, and consequently imposed the obligation to
investigate and if it is the case prosecute and punish a human right violation.144
Under this duty, States must effectively investigate the facts in order to identify,
judge and punish the material and intellectual perpetrators of the injuries. As well, it
has to grant full access and capacity to act at all stages and instances of
investigations to victims and their families.145
However, this reparation measure is considered one of the most complex,

because, in principle, it seeks to combat impunity. Due to this complexity, the
obligation to investigate is one of the most developed and necessary measures
141
Radilla Pacheco v. Mexico. (Merits, Reparations and Costs), IACtHR, 23 November 2009, para
346.
142
543.
143
Juan Carlos Abreu y Abreu, La Victimología a La Luz de Los Derechos Humanos, vol 12 (2016)
36.
144
American Convention on Human Rights ‘Pact of San José, Costa Rica’ Articles 8 & 25.
145
Caracazo v. Venezuela (Merits, Reparations and Costs), IACtHR, 29 August 2002, para. 118.
44
ordered by the IACtHR. The Court has pointed out that the denial of justice in the
face of serious violations of human rights generates various effects, both
individually and collectively. Because this "propitiates the repetition of human rights
violations and the total helplessness of the victims and their families”146, as well it
provokes an impact of insecurity and legal uncertainty for society in general.
This investigation should include all actors and perpetrators who had been involved
in the violation of human rights. Likewise, it must remove all obstacles that hinder,
divert or unduly delay investigations aimed at clarifying the truth of the facts. That
is to say, the investigation must be an integral investigation: a) a criminal
investigation that establishes the main actors147; b) an administrative investigation
that clarifies those responsible for hindering or delaying the procedure148; and
finally, c) an investigation that leads to the whereabouts of the victim.149
Although the right to know the truth is a form of reparation; it is not satisfied if those
responsible for the obstruction of the procedure are not punished. Thus, the duty to
investigate is complemented by the duty to punish when so warranted by the case.
Similarly, as happens with the right to investigate, the right to punish must include
criminal and administrative sanctions. Therefore, States must adopt the necessary
provisions of domestic law to ensure compliance with this obligation.150

In addition, the Court has insisted that part of this remedy includes a prohibition to
adopt measures tended to obstruct criminal prosecution or to abolish the
judgement’s effects. For instance, amnesties laws, internal figures and institutions
that exclude responsibility, legislation that contemplates the prescription of crimes
146
Las Dos Erres” Massacre v. Guatemala (Merits, Reparations and Costs), IACtHR, 24 November
2009, para. 201.
147
Ibid., para 183.
148
Ibid., para 133.
149
Goiburú et al. v. Paraguay (Merits, Reparations and Costs), IACtHR, 22 September 2006, para.
171.
150
Barrios Altos v. Peru. (Merits, Reparations and Costs), IACtHR, 30 November 2001, para. 42.
45
and others.151 Regard to the latter case, the Court has established that the statute
of limitations does not apply to serious human rights violations.
In order to clarify the truth of the facts, the Court has settled that the State must
strengthen its investigative capacity. Hence, it requires to be endowed with all the
logistical, human, economic, professional, technical and technological resources
for the effective fulfilment of its obligation.152 Likewise, the State must not only
remove the obstacles and mechanisms of law and fact that maintain impunity, but
also it must grant security guarantees to society in general, mainly witnesses,
judicial authorities, prosecutors, other operators of justice and the families of the
victims. The State must use all the measures at its disposal to guide the process in
a fair, prompt and expeditious manner.153
g. Costs and Expenses
The Court has contemplated this remedy as an acknowledgement of the

expenditures made by victims in accessing international justice. In other words, it is
a way to compensate the national and international processing expenses causing
by the human rights violation. These expenses include the costs of lawyers,
national and international transfers of victims to the Commission and the Court and
others. Even though this is an independent measure and is not part of the
pecuniary’s measures catalogue, it is mandatory to prove the costs incurred, the
circumstances of the specific case and the nature of the international jurisdiction
for the protection of human rights.154
Correspondingly, the way to fix the quantum may be made based on the principle
of equity and taking into account the expenses indicated by the parties, provided
151
Castillo Páez v. Perú. (Merits, Reparations and Costs), IACtHR, 27 November 1998, para. 105.
152
Carpio Nicolle and others v. Guatemala. (Merits, Reparations and Costs), IACtHR, 22 November
2004, para. 134.
153
Myrna Mack Chang v. Guatemala. (Merits, Reparations and Costs), IACtHR, 25 November
2003.
154
Garrido and Baigorria v. Argentina (Reparations and Costs), IACtHR, 27 August 1998, para.
254.
46
that their quantum is reasonable.155 Nonetheless, similarly as happens with the
economic compensation, in the cases that it is not possible for the victims to prove
it. The Court will exclusively calculate the quantum base on the equity’s criterion.
They are always taking into account the proportionality principle.
On the other hand, it is essential to highlight that due to the absence of a tabulator
table of international fees, the inconvenience of this measure became remarkable.
Although there are national tabulator’s tables, these only indicate a minimum that
generally does not correspond to the fees charged by lawyers and much less
regarding with the cases handled before an international tribunal. Consequently,
this measure is effective for the victim. As well, this remedy contemplates the
future expenses that may be incurred internally or during the Judgment’s
supervision compliance.156
Additionally, in order to facilitate access to the inter-American human rights system

for those who currently do not have the resources necessary to bring their case to
the Commission or the Court, the Legal Assistance Fund of the Inter-American
Human Rights System was created in 2008 by the OAS.157 Likewise, this fund
function as financially subsidiary victims who lack sufficient monetary resources to
present their Statements before international bodies provided that the victims
comply with the requirements established in their regulations.158 In this case, the
Court will evaluate and, if it is necessary, order the responsible State to reintegrate
the expenditures incurred into the Legal Assistance Fund corresponding to the
Court.
Finally, it is essential to include this measure within the catalogue of the IACtHR´s
remedies, because a very elaborate system of remedies and guarantees before
155
Fleury and others v. Haití. (Reparations and Costs), IACtHR, 23 November 2011, para. 150.
156
Xákmok Kásek Indigenous Community v. Paraguay (Reparations and Costs), IACtHR, 24
August 2010, para. 329.
157
Oas, “Organization of American States: Democracy for Peace, Security, and Development”
(OAS August 1, 2009) <http://www.oas.org/en/iachr/mandate/basics/fund.asp> Accessed: June 15,
2019.
158
Barrios Family v. Venezuela (Merits, Reparations and Costs), IACtHR, 24 November 2011.
47
the Courts would be useless if individuals did not have enough resources to access
to it.159 As well, this is a common practice within the domestic law, thus the Court
has considered applying too in the international field. However, part of the
requirements is that the victim has to be the one who requests it, as is the case in
domestic law.
Previously this benefit was paid directly to the victim’s representatives. Currently,
this view has been modified, and the Tribunal reimburses these expenses directly
to the victim so the victim can make the corresponding payments. As argued by
Judge Sergio García Ramírez in his concurrent opinion in Herrera Ulloa v. Costa
Rica:
“it is not the function of the Court to assess the performance of the legal
advisors and to order that payment be made to them directly. This has to be
decided by the person who retained their services and who was at all times
abreast of their work and their progress. The Court did not order direct
payment of fees to physicians who attended the victim, or payment of any
other considerations to certain parties. It is the victim, using the sum that he
receives, who can best determine what is owed or what is equitable.”160
On the other hand, as a part of the procedure, it is essential to point out that in the
first instance it is the Commission and the victim herself/himself who request the
reparation measures from the Court. As well, sometimes the State itself offers
ways in which it considers that human rights violations can be remedied. Although,
the Court emphasises the transcendence of the victim’s interest, it cannot only
grant all applications. The Tribunal must conduct an in-depth study the causal
nexus, the claim violations and the type of suffered damage.161
Additionally, as in any controversy, the resolution of the conflict will always

privilege through non-contentious means. Since the parties are who better know
159
Ramírez (n 84) 149 para 3.
160
Herrera-Ulloa v. Costa Rica (Merits, Reparations and Costs), IACtHR, 2 July 2004, Series C no.
107, para 40 concurring opinion of Judge Sergio García Ramírez.
161
Kichwa de Sarayaku Indigenous Community v. Ecuador. (Merits, Reparations and Costs),
IACtHR, 27 june 2012, Serie C, no. 245, para. 281.
48
their needs, it is in principle available to the parties through a friendly settlement to
reach an agreement that best meets their interests. Consequently, the Inter-
American system encourages the parties to carry out this procedure before
establishing a contentious procedure.162 The Commission will supervise and, if
necessary, warn whether the proposed agreement represents a reasonable
solution regarding protection and redress for the violated rights, always guided by
the pro homine principle.163
However, the jurisprudence has settled that even if the parties reach an
agreement, it must be homologated before the Court, aiming sanctioned it, and
consequently, the actions derived from it taken effect. As well, the Tribunal has
contemplated the cases when the victim forgives the perpetrator, and it has ruled
that the State still must investigate and to sanction whether a human rights
violation has been committed.164 Although the Court shows certain flexibility in
prioritising friendly settlement, it established that gross violation of human rights is
indeed an affair of public order.165 Therefore, the State must guarantee the
restoration of the affected legal good.
B. Factors Influencing the Development of Certain Reparations in the

jurisprudence.
The varied catalogue of reparation measures provided today by the jurisprudence

of the Inter-American Court has not always been composed in this way. Initially,
regarding the imposition of reparation measures, the Court’s jurisprudence was
limited in its action. After that, the Court considered addressing gross violations by
providing remedies.166 However, in the first moment, the economic compensation
162
Rules of Procedure of the Inter-American Commission on Human Rights 2002 1, Article 37.4.
163
ibid Article 40.5.
164
Calderón Gamboa (n 76).
165
166
Velásquez Rodríguez v. Honduras (Merits, Reparations and Costs), IACtHR, 21 July 1989.
49
was the only reparation imposed, following the criterion settled by the International
law and the ECtHR’s jurisprudence.
Nevertheless, the Court had to change this idea, taking into account the critical
situation in most countries of Latin-America. The Tribunal realized that economic
compensation was not enough to settle issues regarding social, moral, family,
ethical, cultural and scientific components. As well, the absence of the rule of law
and democracy in these countries have been another robust element to influent the
Court’s acting. These components provoked in the Inter-American jurisprudence a
progressively develop, adopting innovative ways to redress human rights
violations.
Likewise, there are some authors who assert that the development of
jurisprudence in this system has been influenced by three crucial periods: in the
1960’s and 1970’s the Court developed jurisprudence on enforced disappearance;
in the 1980’s and 1990’s the Tribunal established several legal standards to
combat the impunity; and the last one corresponds to the present time, where
gross violation caused by social exclusion and inequality has been analyzed.167
However, in a more summarized and broad interpretation, it can be noted that the
common denominators of the problems diversity in this region, have been the
violence translated into crimes, impunity, and the absence of an effective judicial
system, which are described and exemplify below.
a. Criminal Factors
Initially, due to the context in which Latin America was, the Court’s decisions were
based on purely criminal factors. For instance, some countries, as Chile were
subjected to cruel and long-lasting dictatorships. These authoritarian regimes
caused thousands of human rights violations, such as the right to life, the right to
167
Parra Vera, Oscar ‘La Jurisprudencia de La Corte Interamericana Respecto a La Lucha Contra
La Impunidad : Algunos Avances y Debates.’ (2012) Year 13, No Revista Jurídica de la universidad
de Palermo 5, 7,8.
50
liberty and personal integrity.168 Consequently, the Tribunal had to take action
concerning these violations imposing the obligation to investigate, to provide
adequate judicial guarantees and reparations.
On the other hand, in many other countries such as El Salvador and Colombia,
there was a transition process after the civil war, provoking social instability, which
even prevails to this day. Thus, serious human rights violations were common,
such as enforced disappearances and extrajudicial executions. Likewise, massacre
cases have marked a paradigm in the development of the Court. These cases
represented a series of atrocious acts against not only an individual but also a
collective, involving an endless number of violated rights. Such as the right to life,
the deprivation of liberty, children’s rights, women’s right.
Finally, at this point, the crime of selling children was also a remarkable atrocity
where the Tribunal paid special attention. Consequently, in these situations, the
IACtHR saw the need to adopt measures such as restitution, satisfaction and the
duty to investigate and sanction. Thus, this traduced as the “81% of all contentious
cases are directly related to criminal matters or criminal procedure”, as the judge of
the IACtHR Eduardo Ferrer Mac-Gregor argues.169
b. Inefficient national judicial system
Besides, another relevant factor that has influenced the development of the
Jurisprudence of the IACtHR is the absence of effective an independent judicial
system. The article 8.1 provides the right to justice access and also contemplates
as part of this guarantee a reasonable period that judicial proceedings have to
168
Brenes Vargas, Rodolfo "Crónica de Jurisprudencia de La Corte Interamericana de Derechos
Humanos" Year 2012, vol 84 (2013) 219.
169
Ferrer Mac-Gregor, Eduardo ‘Las Siete Principals Líneas Jurisprudenciales de La Corte
Interamericana de Derechos Humanos Aplicable a La Justicia Penal’ (2014) 59 Revista IIDH 29, 1.
51
settle the disputes. Therefore, a prolonged delay constitutes automatically a
violation of the judicial guarantees granted by this article.170
The Inter-American jurisprudence has considered these factors to establish that

administrative and judicial procedures must be handled with exceptional diligence
and speed on the part of the authorities, and even more in cases involving the
interests of children171, persons with disabilities172 or vulnerable groups173. The
Court has stipulated that judicial delay, not only violate the right to adequate justice
access but also could impact in a negative way on the victim’s quality of life if the
victim is in a particular situation (children, disabled or vulnerable group).
Likewise, the Court has noticed that part of the judicial inefficiency is due to the
lack of judges and administrative staff’s experience. Therefore, the Tribunal has
included the obligation to the State to implement appropriate training and
specialisation to the authorities responsible for administering justice. In this sense,
the jurisprudence established the methodology and manner on how to carry out the
actions of the authorities concerning the investigation and sanction of those
responsible.174
c. Impunity
This factor is directly related to those described above. Because, on the one hand,
it involves the behaviour and obligations of the State concerning human rights.
While, on the other, it shares the causes that generate these phenomena, such as
corruption.
The Inter-American Court has defined impunity as “the total lack of investigation,
prosecution, capture, trial and conviction of those responsible for violations of the
170
Gudiel Álvarez and others ("Diario Militar") v. Guatemala. (Merits, Reparations and Costs),
IACtHR, 20 November 2012, para. 261.
171
Fornerón and daughter v. Argentina. (Merits, Reparations and Costs), IACtHR, 27 April 2012.
172
Furlan and Family v. Argentina. (Merits, Reparations and Costs), IACtHR, 31 August 2012.
173
Nadege Dorzema and others v. Dominican Republic. (Merits, Reparations and Costs), IACtHR,
24 October 2012.
174
Uzcátegui v. Venezuela. (Merits, Reparations and Costs), IACtHR, 3 September 2012.
52
rights protected by the American Convention”.175 This passive attitude by the State
is a violation of human rights because it causes the violation of more rights, or if
they have already been committed, it does not offer the victim a proper redress to
repair the damage suffered. Hence, the Tribunal’s insistence on the implication of
the proper investigation, prosecution and punishment of the perpetrators.
Moreover, the ambiguous and national norms opposed to the legality principle
have caused transcendence in the jurisprudence of the Court.176 Due to these acts
have left the victim in a helplessness State, because he/she is not guaranteed that
his/her rights are duly established and therefore protected. Consequently, the Inter-
American Court of Human Rights has ordered amendments to the law that would
allow individuals to exercise precise and valid democratic control over all State
institutions and their officials.177
C. The concept of dignity in the Jurisprudence of the Inter-American Court of

Human Rights
Even when the concept of the victim still being unclear and ambiguous in the
international doctrine, the Inter-American system has tried to adopt a more
comprehensive conception within their legal instrument and jurisprudence. Hence,
article 11.1 of the ACHR, provides this concept explicitly, “everyone has the right to
178
have his honour respected and his dignity recognized.” However, this is not the
exclusive article where dignity is contained, also the Convention mentioned it in
three more occasions.
Furthermore, the Court, in its jurisprudence, adds that dignity is the governing
principle of all human rights. Likewise, the cases in which the IACtHR has referred
175
Castillo-Páez v. Peru. (Reparations and Costs), IACtHR, 28 November 1998, para. 107.
176
Palamara Iribarne v. Chile. (Merits, Reparations and Costs), IACtHR, 22 November 2005.
177
Idem. Para 254.
178
American Convention on Human Rights ‘Pact of San José, Costa Rica’ Art. 11.1.
53
to the concept of human dignity are mostly related to the right to life, forced
disappearances, illegal deprivation of liberty, torture, free movement and
nationality. However, they are not exclusive because the concept of dignity is also
present in cases regarding the right to private property.
Moreover, concerning the reparations, the Tribunal refers to human’s dignity

concept basically when it regarding immaterial damage. Nevertheless, every time
is most common that the Court also mentioned this precept in material damage.
Also, the IACtHR has added that the person possesses dignity as an attribute
inherent to his human condition. Consequently, this attribute makes her the holder
of fundamental rights that cannot be ignored; they are superior to the power of the
State.179 Thus, whatever the material or immaterial damage, dignity is diminished
by constituting a fundamental right, so it has to redress in the same way.
Besides, the Court, in its advisory role, has referred to the concept of human
dignity, explicitly in Opinions 4, 17, 18. The Court Stated that the notion of dignity
derives directly from the unity of the nature of humankind and is inseparable from
the person. As well it implemented an innovative criterion regarding the sovereignty
of the States, which clarify that dignity will always prevail. In the same way, it
clarified that “regardless of nationality, on the territory where he is, or on his legal
status, the human rights must be denied, otherwise it would be akin to denying
human dignity. If human rights limit the exercise of authority, State sovereignty
cannot be cited to violate them or prevent their international protection”.180
In conclusion, it provides a general idea of the situation in which Inter-American

jurisprudence has expressly contemplated the concept of dignity in its legal bodies,
jurisprudence and advisory opinion. However, the reality is that this concept is the
guiding principle not only of the inter-American system of human rights but also of
179
Amezcua, Luis ‘Algunos Puntos Relevantes Sobre La Dignidad Humana En La Jurisprudencia
de La Corte Interamericana de Derechos Humanos’ (2007) 8 Revista Iberoamericana de Derecho
Procesal Constitucional 339, 353.
180
Juridical Condition and Rights of Undocumented Migrants, IACtHR, Advisory Opinion OC-18/03,
17 September 2003, Series A no. 18.
54
the universal system, must be contemplated in every case where a violation of
human rights occurs. Finally, in later chapters, the study of a particular case
dictated by the Court will be addressed, in which the vision of human dignity before
the Court will be highlighted.
III. The System of Reparation in the Jurisprudence of the European

Court of Human Rights
The international human rights law establishes that it is essential that all notions of
human rights embrace the concept of reparation for the existence of the very
notion of human rights.181 Therefore, in compliance with this, the European
protection system also has instituted this notion within its legal instrument, the
European Convention on Human Rights. Likewise, this perception has been
supported by the European Court of Human Rights jurisprudence. The ECtHR is
the judicial body, with the essential function of judging those States party that had
violated what they have committed in the Convention and in consequence,
determines the right to remedy if it is the case. As well, the conception of the
reparation in the European system has involved another figure, the Committee of
Ministers. This body is responsible for supervising the enforcement of sentences
handed down by the Court182.
However, the way that in practice this system conceives the right to reparation is
considerable distant than the International law and the other regional systems
do183. This first difference can be deduced from the article 41 of the ECHR, which
provides the right to remedy understanding as to the concept of just satisfaction:
181
“Report of the Secretary-General: Question of the Realization in All Countries of Economic,
Social and Cultural Rights” (2013) Available at:
<https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session25/_layouts/15/WopiFrame.as
px?sourcedoc=/EN/HRBodies/HRC/RegularSessions/Session25/Documents/A-HRC-25-
31_en.doc&action=default&DefaultItemOpen=1> accessed May 1st, 2019.
182
‘European Convention on Human Rights’ Art. 46 P2.
183
International Commission of Jurists (n 29) 35–36.
55
“Just satisfaction: If the Court finds that there has been a violation of the Convention or the Protocols thereto,
and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court
shall, if necessary, afford just satisfaction to the injured party.”184
In this way, from the interpretation of this article may be noticed in a first moment
that not even mentioned the notion “reparation” or “remedy explicitly”. Instead of,
this article institutes the concept of just satisfaction. Secondly, unlike its
homologue, the IACtHR, the ECtHR’s interpretation is more limited since it does
not consider this notion an automatic right by the only fact of having suffered a
violation of human rights. Instead, the national jurisdictions must to redress the
alleged violations themselves and only if the State does not offer any remedy will it
be possible to appeal to the ECtHR granting the victim the right to fair and
equitable reparation. In other words, a first verification of the reparative efficacy of
the internal route is required, and only if this is not possible or inefficient will it be
possible to access the regional route, with the Court adopting a subsidiary role.
Nevertheless, the European system has taken the basic structure of this right by
the International standards185. Since this system has admitted that the right to
provide an effective reparation born in the first instance with the responsibility of
the State, this means that the State must redress all the injuries of fundamental
rights that had committed, and the system is the intermediary to determinate this
responsibility.
As well, the European Convention has instituted the obligation of the States
through the article 46.1, even if it does not have the same forced as the article 63
of the ACHR, this article still imposes a binding responsibility to the Convention’s
States parties. Likewise, this responsibility has also been imposed by the
Committee of Ministers. Who Stated the duty to the States “to be held accountable
for their actions in the cases of gross violation of human rights.”186 Thus, this
recognition of States responsibility enforced them to fulfil all the aspects that the
judgment covers, including the reparation stage.
184
‘European Convention on Human Rights’ (n 182) Art. 41.
185
186
Eradicating impunity for serious human rights violations: Guidelines and reference texts. 2011 5.
56
Furthermore, at the same time that the States must abide by the final judgment of
the Court, also is free to indicate how to redress the human right violation, due to
the Court’s subsidiary role. However, this freedom will be limit by the Convention
and supervised by the Committee of Ministers. In other words, the Court will
impose the obligation to repair in the cases of it will find a violation of the
Convention, nevertheless and unlike than IACtHR the Court will not specify the
measures.187
In addition to, one of the most remarkable justifications concerning the Court’s
subsidiarity character in the face of reparation has been made in the Scozzari and
Giunta judgement, where the Court stipulated that the judgments have essentially
declaratory character. Hence, is the State who must designate the measures to
take for fulfil the legal obligation established in article 46 of the ECHR. Likewise,
this determination will supervise by the Committee of Ministers.188
Nevertheless, it has been precisely this subsidiary character that over the years,
the Court has been strongly questioned for its limited interpretation and
consequently the absence of real restorative justice. In the past, the ECHR only
imposed the pecuniary reparations and the expenses and costs, in a very restricted
way. For instance, the Court considered that persons who were convicted of a
crime should not receive compensation for the violation of a procedural right, even
if a violation of the Convention were established unless they could prove their
innocence.189 As well, the Court kept this criterion regarding the cases where a
violation of human rights was declared. However, the victim represented a danger
to society; thus, the right to reparation was limited.190
187
Kudla v. Poland. (Merits and Just Satisfaction), ECtHR, 26 October 2000, para 152.
188
Scozzari and Giunta. (Merits and Just Satisfaction), ECtHR, 13 July 2000, para 249.
189
Silver and others v. United Kingdom. (Just Satisfaction), ECtHR, 24 October 1983.
190
McCann v. United Kingdom. (Merits and Just Satisfaction), ECtHR, 27 September 1995, para
219.
57
However, with the aim of not leaving the victims in a State of helplessness, of
collaborating with a more precise and more effective execution with the Committee
of Ministers191, the Court adopted a novel approach. For the first time, the ECtHR
imposed a specific reparation measure in addition to just satisfaction in the case of
Papamichalopoulos v. Greece (1995) restitution in a case of illegal expropriation.192
This novel approach has been crucial in the development of remedies in the
ECtHR’s jurisprudence because it has imposed on the State not only the burden of
compensating but also to restitution. This judgment has also opened the door for
the Court to take a more active role in ordering specific measures.
On the other hand, it has been critical the identification of the person who is
alleging a violation of human rights and, consequently, their due reparation.
According to article 34 of the ECHR, any individual or group of people who have
suffered a human rights violation may be contemplating as a victim. Therefore, with
the right to present the application to the Court. The Convention gives full legal
standing to the petitioners (ius standi), and thus it is not necessary the intervene of
another Organ unlike the IACtHR, where the claims only can have access to the
Court through the Commission.
Although, in the past, only the States and the Commission were authorized to file
applications before the ECtHR. However, in order to give full legal standing to
petitioners, this Protection System adopted new reforms, such as the entry into
force of Protocol 11, where the European Commission has been abolished.193 In
this way, the Court has analyzed the condition of the victim in human rights
violations, so that it can determine whether or not it is the aggrieved party and thus
accredits a just satisfaction. Therefore, the Court has distinguished the different
types of victim within its jurisprudence as direct victims, potential victims and
indirect.
191
Papamichalopoulos v. Greece. (Just Satisfaction), ECtHR, 31 October 1995.
192
Idem, paras 202-203.
193
Laura Alicia Camarillo Govea, ‘Convergencias y Divergencias entre los Sistemas Europeo e
Interamericano de Derechos Humanos’ (2016) 67, 71–72.
58
The ECtHR has also adopted the same notion as the universal human rights
protection system regarding the direct victims. The Court recognizes as a direct
victim, the person who directly receives the consequences of the violated right. In
other words, direct victims are all person who has been affected by the State’s acts
or omissions, causing an injury to his rights.194 Likewise in this concept, the Court
has encompassed not only to individuals as direct recipients of human rights
violations but also to communities, corporations and organizations that have
suffered harm, including physical or mental injury, emotional suffering or economic
loss.195
Moreover, the jurisprudence has embraced the concept of the potential victim. It
has been used in cases where even if it has not yet generated any direct
consequence,196 there is a regulation, measure or action by a State party that may
affect a person or a group of persons. This means that in order for an individual or
groups being considered a victim, the effects of the violation do not necessarily
have to arise at the instant, yet they are sure that they will occur shortly. A clear
example of this are those cases where a person’s life is in danger, due to the
extradition ordered, because in the destination’s country he or she may be
sentenced to death penalty197, or some groups represent a risk of death for the
victim such as gangs198 or the government of the country of the destination itself199.
In addition to the Court has recognized entitled to just satisfaction those people
who have suffered as a consequence of the direct victim damage or those who
would have a compelling personal interest in ceased the violation.200
Consequently, this notion lets the family and relative’s victim to awarded a remedy
as an indirect victim201. As well, this acknowledgement has extended to the
194
Brumarescu v. Romania. (Merits), ECtHR, 28 October 1999.
195
Robouts (n 26) 104.
196
Klass and others v. Germany. (Merits), ECtHR, 6 September 1978.
197
Soering v. UK. (Merits and Just Satisfaction), ECtHR, 7 July 1989.
198
HLR v. France. (Merits and Just Satisfaction), ECtHR, 29 April 1997.
199
Cruz-Varas v Sweden. (Merits and Just Satisfaction), ECtHR, 20 March 1991.
200
Andronicou and Constantinou v. Chipre. (Merits and Just Satisfaction), ECtHR, 9 October 1997.
201
Idem; Koolen v. Belgium. (Merits), ECtHR, 18 December 1963.
59
successors and victim’s heirs, to receive the direct victim’s reparation in the cases
where he or she had died. Although, this individual right is ruled under the
admissibility requirements established by article 35 of the ECHR.
On the other hand, regarding the conception of damage, the CoE has provided a
guideline to attend and eradicate human’s right violation and its causes. The
guidelines have envisaged the gross violation as “those acts in which the States
have the obligation under the convention, and in the light of the Court’s case law,
to enact criminal law provision.”202 For instance, these acts may be traduced as
violations to the right to life, torture, forced labour, security guarantees and private
life. Therefore, these violations may be manifested as extra-judicial killings,
negligence leading to serious risk to life or health; torture or inhuman, degrading
treatment by the security forces, prison officers or other public officials; enforced
disappearances, kidnapping, slavery, forced labour, or human trafficking, rape or
sexual abuses, serious physical assault, including in the context of domestic
violence and the international destruction of homes or property.203
Nevertheless, the jurisprudence has clarified that a simple act against the
Convention it may be enough to constitute a violation and consequently obliged the
State to repair.204 Likewise, the Court’s practice has distinguished between the
different ways as the damage may existing pecuniary and non-pecuniary damages.
Pecuniary damages has adopted in the ECtHR as the international law has
comprehended, based on damnum emergens and lucrum cessans.205 Hence,
regarding with this category, it may include loss of earnings (past and future), loss
of job opportunities206, loss of social security, fines 207
, medical expenses208, the
202
Eradicating impunity for serious human rights violations: Guidelines and reference texts. Article
II, point 3.
203
Geneva Academy of International Humanitarian Law and Human Rights (n 15) 12–13.
204
Ireland v, UK. (Merits and Just Satisfaction), ECtHR, 18 January 1978, para. 762
205
President of the ECtHR, Practice Direction: Just Satisfaction Claims, (2018) point. 6.
206
Elçi and others v. Turkey. (Merits and Just Satisfaction), ECtHR, 13 November 2003.
207
Lopes Gomes de Silva v. Portugal. (Merits and Just Satisfaction), ECtHR, 28 September 2000.
208
Pitkanen v. Finland. (Merits and Just Satisfaction), ECtHR, 9 March 2004.
60
detriment of property209 and domestic costs and expenses210. The Rules of the
ECtHR mentioned that supporting documentation, the presence between the
causal link with the violation and the damage claimed, are the three main
requirements that the victim has to prove this classification.211
Reparation for non-pecuniary damage, has been included moral and physical
hurt212, the trauma213, anguish and affliction214, stress, prolonged uncertainty and
anxiety215. Even if the Court has been more flexible regarding the standard of proof
in this classification, it is mandatory to prove the existence of the damage and the
causal link with the harm.216 However, in those cases where it would be impossible
to prove it, and the assumption of the suffering is evident, the requirement of proof
will be less strict.
A. Specific Measures of reparation
The ECHR does not constitute a fourth degree of jurisdiction; thus, it is the
obligation to the States adopting general measures to redress the Convention’s
damages. This means that according to article 46.1, a State condemned by the
ECtHR must adopt individual and general measures to redress the violation to the
ECHR. The Court only has to suggest the type of measure that the State could
take to stop and end the identified systemic situation.217
Consequently, and due to the subsidiarity role of the ECtHR, in the European
order, there is not an exhaustive catalogue of specific reparation’s measures,
unlike the IACtHR. The Court emphasized that its judgments are essentially
209
Gelsomini Sigeri SRL v. Italy. (Merits and Just Satisfaction), ECtHR, 18 December 2003.
210
Krone Verlag GmbH & Co KG v. Austria. ECtHR, 20 March 2003.
211
Rule 60 (2) of the Rules of the ECtHR.
212
K. A. v. Finland. (Merits and Just Satisfaction), ECtHR, 14 January 2003.
213
M. C. v. Bulgaria. (Merits and Just Satisfaction), ECtHR, 4 December 2003.
214
Werner v. Poland. (Merits and Just Satisfaction), ECtHR, 15 November 2001.
215
Oldham v. U.K. (Merits and Just Satisfaction), ECtHR, 26 September 2000.
216
217
Foundation Hostel for Students of the Reformed Church and Stanomirescu v. Romania. (Merits
and Just Satisfaction), ECtHR, 7 January 2014.
61
declaratory and it is the State’s responsibility to choose the ways to comply with its
obligations, under the supervision of the Committee of Ministers.218 However, in the
last years, it has been visible the jurisprudence development regarding the
adoption of specific reparation measures for the Convention’s violations through
the CoM faculties.
The jurisprudence has Stated the obligation to adopt general and individual
measures to redress the harm by the State. In the case of Scozzari and Giunta v.
Italy, the Court has explained that the purpose of the obligation of States
concerning the adoption of general measures is to prevent further violations of the
Convention. Also, the adoption of individual measures is to compensate the
appellant for the consequences of the violation.
For instance, restitution or proceedings reopening are clear examples of individual

measures. On the other hand, the amendments of domestic law are models of
general measures. The Court may also order to the State paying a sum of money
to the applicant as "just satisfaction", aiming that the money in question serves as
compensation and erases the consequences for the victim.219
However, just satisfaction represents the victim’s last resort in the event the State
fails to provide effective and complete reparation. Likewise, since the Court has not
the power to intervene in the internal law of the States, in the past, just satisfaction
was the only measure that the Court could directly impose to the State.220 Besides,
under the just satisfaction concept, the judgement constitutes itself a form of
reparation.221
218
Marckx v. Belgium. ECtHR, 29 September 1975.
219
Council of Europe, “Individual Measures” (The European Convention on
Human Rights) Available at: https://www.coe.int/en/web/human-rights-convention/individual-
measures. Accessed June 15, 2019.
220
Luis M Cruz, ‘La Reparación a Las Víctimas En El Convenio Europeo de Derechos Humanos’
(2010) LXII Revista Española de Derecho Internacional 92.
221
Barberá, Messegué and Jabardo v. Spain. (Merits and Just Satisfaction), ECtHR, 6 December
1988, para 92.
62
The purpose of the sums awarded as just satisfaction is solely to provide
reparation for the pecuniary and non- pecuniary damages suffered by the victims,
as they constitute a consequence of the infringement which may not be erased.222
There is not any tabulator that indicates the procedure performed by the ECtHR to
determine the quantum of compensation. Hence, the Court applies general
principles in assessing just satisfaction. In fact, in many cases, it is challenging, if
not impossible, to discern how the Court has arrived at the amount awarded.223
Usually, the compensation awarded by the ECtHR is relatively lower than that
awarded by European States. Besides, the highest compensation awarded by the
Court has been relating to the cases concerning the right to life, torture, deprivation
of liberty and property.224 Likewise, in the European order, a report of the
Committee of Ministers refers to just satisfaction would only be one of the forms of
restitutio in integrum. 225
Consequently, the Court has implemented the international notion concerning

restitutio in integrum as a way of primary reparation. The case of Assanidze v.
Georgia (2004) provides an excellent example of reparation measures ordered by
the ECtHR, case where was restored the right to liberty. As well, in this case, the
restitution has defined as the action to restore the situation to the previous time of
the violation.226 Also, another example of this measure has been established in the
Oleksandr Volkov v. Ukraine case, where the ECtHR according to with the article
46 ordered as an individual measure the victim’s reinstallation as a Judge of the
Supreme Court.227
222
Scozzari and Giunta v. Italy. (Merits and Just Satisfaction), ECtHR, 13 July 2000.
223
Cruz (n 220) 102.
224
Selmouni v. France. (Merits and Just Satisfaction), ECtHR, 28 July 1999; Çiçek v. Turkey.
(Merits and Just Satisfaction), ECtHR, 27 February 2001; Ilasçu and others v. Russia and Moldova.
(Merits and Just Satisfaction), ECtHR, 8 July 2004; Anguelova v. Bulgaria. (Merits and Just
Satisfaction), ECtHR, 13 June 2002.
225
Surveillance de l’exécution des arrêts et décisions de la Cour Européenne des Droits de
L’Homme, 6ème Rapport du Comité des Ministres, (2012) 22.
226
Assanidze v. Georgia. (Merits and Just Satisfaction), ECtHR, 8 July 2004, concurring opinion of
Judge Costa, paras 6ff.
227
Oleksandr Volkov v. Ukraine. (Merits), ECtHR, 9 January 2013.
63
On the other hand, in particular cases, the Court has also ordered to the States,
the conduction of a proper investigation to determinate the perpetrators of the
human rights violations.228 Additionally, the ECtHR holds that in the cases of the
investigation located the responsible for the violation the State has to take the
appropriate measures to punish them.229
Moreover, the Court has done a remarkable input concerning to the persons who
are deprived of the liberty, requiring the State the adoption of measures to
guarantee the prisoners conditions of detention.230 The Court has established in
some cases the term that the States have to fulfil with the imposed order.231
Likewise, this measure includes the cases of a potential victim, where the
expulsion of an applicant from the territory of the respondent State exposes him to
a serious risk of being subjected to torture or ill-treatment.232
Besides, some measures have been requested to the States regarding judicial
guarantees. Such as separation between judiciary and other branches of
government,233 insurance the expeditious compliance with the procedural
requirements,234 to ensure prisoner voting rights,235 effective relief for violations of
the right to fair trial within reasonable time,236 reopening procedures that were
concluded in an unfair way,237 limited a sentence of life imprisonment to a
maximum of thirty years.238 As well, cases regarding asylum seekers and migrants
the Court has demanded the State guarantee the applicants the no deportation
until the final judicial decision.239
228
Benzer and Others v. Turkey. (Merits and Just Satisfaction), ECtHR, 12 November 2013.
229
Ataykaya v. Turkey. (Merits and Just Satisfaction), ECtHR, 22 July 2014.
230
Vasilescu v. Belgium. (Merits and Just Satisfaction), ECtHR, 25 November 2014.
231
Torreggiani and Others v. Italy. (Merits and Just Satisfaction), ECtHR, 8 January 2013.
232
Al Nashiri v. Poland. (Merits and Just Satisfaction), ECtHR, 24 July 2014.
233
Oleksandr Volkov v. Ukraine. (Merits), ECtHR, 9 January 2013.
234
McCaughey and Others v. United Kingdom. 16 July 2013
235
Hirst v. United Kingdom. (Merits and Just Satisfaction), ECtHR, 30 March 2004, para. 60.
236
Vlad and Others v. Romania, (Merits and Just Satisfaction), ECtHR, 26 November 2013.
237
Maksimov v. Azerbaijan, (Merits and Just Satisfaction), ECtHR, 8 October 2009.
238
Scoppola v. Italy. (Merits and Just Satisfaction), ECtHR, 17 September 2009, para. 6(a).
239
A.C. and Others v. Spain. (Merits and Just Satisfaction), ECtHR, 22 April 2014.
64
Furthermore, there have been cases where the rules and domestic legislation are
incompatible with the principles established in the Convention. Consequently,
causing several human right violations such as restriction of freedom of
expression,240 the violation of the presumed innocent and pre-trial detains,241
delays in justice,242 discrimination towards the woman243. Therefore, the legislative
reform and amendments have been standard actions required to the States by the
Court in these kinds of cases.
In order to regulate the police’s force and reduce the use of weapons such as the
tear gas canisters, the ECtHR has prescribed the need to reinforce the safeguards
measures in the case of peaceful demonstration.244 The Court has held that a more
precise set of rules for the minimization of force and weapons during a
demonstration has to be adept as a measure by the State.245 As well “to take all
the necessity steps at the national level to prevent similar breaches.”246
Additionally, the Court has ordered another kind of measures focusing on disabled
people. For instance, in the Centre for Legal Resources v. Romania case, the
Court has required ensuring the needs of mentally disabled people, such as
afforded an independent representation.247 Even, there has been a situation where
the Court has determinate the obligation to the State to provide with adequate
medical services.248
Likewise, according to article 46.1, the States not only must to provide a reparation
in the cases of the Convention’s violation, but also the States must undertake not
240
Vyerentsov v. Ukraine. (Merits and Just Satisfaction), ECtHR, 11 April 2013.
241
Gülay Çetin v. Turkey. (Merits and Just Satisfaction), ECtHR, 5 March 2013.
242
Foundation Hostel for Students of the Reformed Church and Stanomirescu v. Romania. (Merits
and Just Satisfaction), ECtHR, 7 January 2014.
243
Cusan and Fazzo v. Italy. (Merits and Just Satisfaction), ECtHR, 7 January 2014.
244
Ataykaya v. Turkey. (Merits and Just Satisfaction), ECtHR, 22 July 2014.
245
Abdullah Yasa and Others v. Turkey. (Merits and Just Satisfaction), ECtHR, 16 July 2013.
246
Izci v. Turkey. (Merits and Just Satisfaction), ECtHR, 23 July 2013.
247
Centre for Legal Resources v. Romania. (Merits and Just Satisfaction), ECtHR, 17 July 2014.
248
Amirov v. Russia. (Merits and Just Satisfaction), ECtHR, 27 November 2014.
65
to produce that situation again. This interpretation can be translated as a
guarantee of non-repetitio. In addition to the Papamichaloupoulos and other v.
Greece (1995) mentioned that the condemns judgment imposed three primary
responsibilities to the States: “the obligation to cease the violation, the obligation to
restore the situation to before the violation was committed or the obligation to make
reparation and the obligation not to commit the violation again.”249
Furthermore, the Court has established clearly in the jurisprudence the costs and
expenses are not part of just satisfaction. However, the Court shall award the
applicable allowances provided showing that the expenditure has actually been
incurred, it has been necessary in order to obtain redress for a breach of the
Convention and the reasonable link in relation to the amount of the breach.250
These expenses could include the expenses for lawyers, travel and relocation
costs caused by the commencement of the trial before the ECtHR. Nevertheless,
even though the Court has adopted a more open approach to requiring States
specific measures, its approach remains restrictive and does not usually impose
more than one specific measure in judgments.251
Due to the numerous systematic problems repetitive applications that the Court
has, it faced the necessity to create a systematic way to deal with all the situations.
Hence, the ECtHR has introduced the pilot cases as an innovative solution to settle
the cases of systematic violations. The pilot cases appear as a “procedure that
allows it to group cases that reflect a systematic or structural dysfunction at
national level.” 252
Consequently, the case Broniowski v. Poland (2004) where the first case launched
as a pilot case,253 giving the expected results, thus, there have been hundreds of
cases that the Court has settled as a pilot case, providing and promptness and
249
Papamichaloupoulos and others v. Greece. (Just Satisfaction), ECtHR, 31 October 1995.
250
Iatridis v. Greece. (Just Satisfaction), ECtHR, 19 October 2000, para 98.
251
252
Geneva Academy of International Humanitarian Law and Human Rights (n 15) 23.
253
Broniowski v. Poland. (Merits and Just Satisfaction), ECtHR, 22 June 2004.
66
effective resolution. Likewise, the ECtHR has had to identify the systematic
problem and the source of them254 as a primary requirement to may consider the
possibility to settle as a pilot case.
Undoubtfully, this innovation has constituted a colossal practice in the

jurisprudence of the ECtHR in pursuing to provide a systematic remedy not only for
all the present applicants but also to the possible futures ones. The redress offers
by this kind of cases have been healed in cases concerning enforced
disappearance,255 right to property,256 prohibition of torture and inhuman
treatment.257 Finally, the pilot judgement has been due established in Rule 61 of
the Rules of the ECtHR.258
B. Factors Influencing the Development of Certain Reparations in the

jurisprudence.
The European Regional Protection System has also experimented several

changes through the years, as has already mentioned not only the Convention but
also the ECtHR and the Committee of Ministers, experienced numerous
transformations that influences in the jurisprudence that is known nowadays.
Hence, there have been some factors that influenced in the way of how
jurisprudence has been developing. As well, these elements could understand the
necessities and the social context that has been lived in Europe. Therefore, the
differences with the rest of the systems could be more apparent.
a. Criminal Factors
The jurisprudence of the ECtHR has shown that criminal factors have been
considerable influences in the jurisprudence’s way development. Even if there are
254
255
Abuyeba et al v. Russia. (Merits and Just Satisfaction), ECtHR, 2 December 2010.
256
Broniowski v. Poland. (Merits and Just Satisfaction), ECtHR, 22 June 2004.
257
258
67
not exist or there are not so common the cases of massacres, enforced
disappearances, extrajudicial execution as in the Inter-American system does, the
Court has found several violations of the right to life, to prohibition or torture and
judicial guarantees. Therefore, the necessity to improve the jurisprudence’s
analysis in this field.
As well, the European continent has not been exempted from these crimes,
because there are some at the same scale or worst, like terrorism. For instance, in
the last years, the crimes of enforced disappearances and extrajudicial execution
have been raised, some of them has been linked in some way with terrorism.259
Nevertheless, context and social behavior are different from Latin-America. Hence
the norms and remedies than the countries and in a subsidiary way, the Court have
adopted are fit with the social demands in the continent.
Moreover, the Court held the criterion about the “bad man”260 where the ECtHR
considered that those persons who had been convicted by crimes had not the right
to the remedy only if their innocence could be proved. For instance, the case of
McCann v. U.K. where even if the Court recognized the responsibility to the State
for the violation of the article 2 (right to life). There were not any remedy for the
violation, based on the fact that the suspects were terrorism. Therefore, the victims
represented a danger for the society, and consequently there were not result
appropriate providing a reparation.
However, regarding with the evident justice denegation and the firsthand needs
protecting the Convention due the novel violations, the Court had to change this
criterion and gone beyond. For instance, according with the jurisprudence, 40% of
the detained persons in Italian’s prisons were people in preventive’s prison, waiting
for a judgment. Even when the Court has not the faculty for ordered the States to
take the actions regarding with the prison system organization, these problems
have been becoming a systematic problem. Hence, the Court required the States
259
McCann v. U.K. (Merits and Just Satisfaction), ECtHR, 27 September 1995.
260
Messina (no. 2) v. Italy. (Merits and Just Satisfaction), ECtHR, 28 September 2000.
68
to take specific measures, such as effective remedies concerning prison
overcrowding, the political program reorientation of the preventive detention.261
b. Political Factors
On the other hand, the attitudes and dispositions government to redress the
breaches of human rights, also have been a crucial factor within the ECtHR’s
jurisprudence. The Cruz Varas v. Sweden case have been a good example of how
the governments sometimes does not fulfil the Court’s requirements. The ECtHR
has argued that even if mostly the times the States fulfil the requests imposed by
the Court, at the end they still keeping a discretional faculty.262
Likewise, in some cases due to the incompatibility between the domestic

legislations and the Convention, the Court has ordered changes and amendments
to the national laws. The ECtHr has had involved in this field, due to the risk of the
States were not adopted any changes in their constitution and legislation
exercising the discretional faculty that they have. Hence, this danger represented
not only a severe factor regarding the State’s responsibility but also it was a
menace to the future effectivity to the convention.263
As well, cases regarding with the asylum seekers by political persecution has been
constructive elements in the ECtHR’s jurisprudence. For instance, in the Savriddin
Dzhurayev v. Russia, the Court considered that the repetitive disappearance and
exportation people to other countries has been a massive injury to the rule of law.
However, the ECtHR had to act and ordered the effective investigation and
punishment to the perpetrators to redress the violations.
c. Judicial Factors
i. Complexity in the processes
261
262
Cruz (n 220) 10.
263
Zornić v. Bosnia and Herzegovina. (Merits and Just Satisfaction), ECtHR, 15 July 2014.
69
The Court has recognized that not all proceedings are the same; there are some
proceedings more complicated than others, referring these to the Grand Chamber.
From this recognition, the Court has also been estimated that its complexity may
have the same origin. Therefore, in order to help member States, fulfil their role in
the Convention, the Court launched the pilot cases. This modality has helped to
put an end to the excuses regarding the complexity of procedures due to its
structurally and systemically. Also, it has contributed to securing the rights and
freedoms of the Convention and offering faster redress.
ii. Natural Delays
On the other hand, the delays in the execution of judgments have been a
remarkable circumstance in the development of the jurisprudence. The Court has
realized about the numerous pending cases, that the States has to fulfil their
obligation with the articles 41.264 However, the ECtHR, adopted the role to provide
specific recommendation assistance with the State to provide an effective and
promptness remedy.
Likewise, this factor has been part of the systematic and structural violations of
human rights. For instance, the inadequate legislation and ineffective
administration of justice in Hungary caused an apparent violation of the right to be
tried within a reasonable time. “Approximately 100 similar cases were pending
before the Court, and the Court found that Hungary had violated Article 6(1) in
265
approximately 60 cases concerning the length of criminal proceedings.” Hence,
this factor is attributed to the impetus behind the creation of pilot cases.
C. The concept of dignity in the Jurisprudence of the European Court of

Human Rights
The human dignity in the European System is a precept that its recognition gained
strength after the wars lived, especially of the Second World War. However, it is
264
Gerasimov and Others v. Russia. (Merits and Just Satisfaction), ECtHR, 1 July 2014.
265
Barta and Drajkó v. Hungary. (Merits and Just Satisfaction), ECtHR, 10 April 2007.
70
difficult to be sure from when the European system has adopted this conception
because none of the treaties or conventions explicitly include this precept. It was
not until Protocol No. 13 that the text Stated that abolition of the death penalty was
essential to the full recognition of the inherent dignity of all human beings.
Furthermore, several authors reiterate that it is paradoxical that even if the

Convention is considered the example of progressivity in human rights towards
other regional systems, the word dignity does not appear even once. The
Convention conceives notions of freedom, equality, property, and even the pursuit
of happiness.266 Nonetheless, the precept of dignity is still absent in the legal order
at least in an explicit and literary way. The explanation is based on the fact that the
term "dignity" is relatively recent in legal literature.267
Nevertheless, the European System has argued that this system has been formed
on the principles stipulated by the international body, the UDHR, which conceives
human dignity as the guiding principle of human rights. Hence, even if human
dignity is not comprehending as a right, it understands as a matrix principle of the
ECHR. This principle fits the entire Convention, supporting other rights. Therefore,
the Convention has offered a broader interpretation through the Court’s
jurisprudence of how it conceives human dignity.
The jurisprudence of the Court has referred in more than 1000 cases268, the human
dignity concept. As well, the Court pointed out that human dignity is “the very
essence of the Convention”,269 it has emphasized the need to respect human
dignity and also imposes the consequences of non-compliance by violating it. Also,
this precept may understand as a way of being composed by living conditions,
translated into a person’s physical and mental well-being.
266
María Luisa and Marín Castán, ‘La Dignidad Humana, Los Derechos Humanos y Los Derechos
Constitucionales’ (2007) 09 Revista d e Bioética y Derecho 1 <http://www.bioeticayderecho.ub.es>.
267
ibid.
268
Buyse A, “The Role of Human Dignity in ECHR Case-Law” (ECHR BLOGJanuary 1, 1970)
Available at: http://echrblog.blogspot.com/2016/10/the-role-of-human-dignity-in-echr-case.html.
Accessed June 15, 2019.
269
Case of V.C v. Slovakia. (Merits and Just Satisfaction), ECtHR, 8 November 2011, para.105.
71
For instance, the jurisprudence has shown this criterion in the case Larioshina v.
Russia. The applicant sued the Russian State because the pension provided was
not enough for her to live with dignity, therefore constituted inhuman and degrading
treatment. The Court determined, no violation to the article 3, however, it
recognized that in cases where the person is dependent on the State and his or
her physical and mental health is threatened by lack of resources, a problem could
arise concerning article 3.270
Furthermore, the concept of dignity becomes more visible in cases of torture and
inhuman treatment of persons in detention, for example, in the Torreggiani and
Others v. Italy case. The applicants alleged violation to article 3 due to the
inadequate conditions of detention. Thus, the Court considered that the conditions
of detention of the person in question were contrary, human dignity and violated
both the Italian law and the norms established by the CPT of the CoE and the
jurisprudence of the ECtHR. 271
As well the Court emphasized, that Article 3 imposes a positive obligation on the
authorities to ensure that all prisoners are detained under conditions compatible
with respect for human dignity.272 The conditions of the prisoner must, therefore, be
taken into account and his or her adequate health and well-being guaranteed.273
On the other hand, even if the ECHR does not establish in an expressly way the
human dignity either the right to reparation, there is a closely linked between them,
where reparation has no reason to exist without prior recognition of human dignity.
Since the reparation is born as a consequence of the transgression of human
dignity, hence, depending on how human dignity is conceived, it is how it will be
adopted and establish a way of healing it. Likewise, analysing the value given to
270
Larioshina v. Russia. (Merits and Just Satisfaction), ECtHR, 23 April 2002.
271
272
Kudla v. Poland. (Merits and Just Satisfaction), ECtHR, 26 October 2000, para 94; Kudla v.
Poland was the first judgement where an expressly way the ECtHR mentioned the human dignity.
273
Idem.
72
human dignity, it may see how extensive and abstract its system of reparation can
be.
Consequently, due to human’s dignity injuries and the ambiguous State’s

reparation system, the Court has had to become more directly involved in the
reparation process for victims of human rights violations. However, practice shows
that in this sense, dignity offers very little decisive weight in the legal argument.
Therefore, the value given to dignity in the European system will depend on the
development of the jurisprudence.
IV. Case analysis

On the other hand, once have been analyzed the system of reparation in the
jurisprudence of the Inter-American and European Regional Protection System on
Human Rights, the similarities and differences are visible. Thus, in terms of
similarities, both systems are based on the same freedoms and rights essential to
the human being. They also share very similar admissibility criteria and principles
of interpretation, as well as the case law in the last years, has shown a crucial
development who also have helped in the cooperation between both systems.274
Although, how remedies are administered is the most noticeable difference
between these systems, where the IACtHR have been focusing on providing an
integral reparation, while the ECtHR has been basing on the subsidiarity principle.
Therefore, in order to show a more precise way how an effective reparation can be
granted to restore victim’s dignity, two recently similar cases in terms of violated
rights and facts will be analyzed of both the Inter-American system and the
European system, respectively.
Case V.R.P., V.P.C.* and others v. Nicaragua
274
Wolf Legal Publishers, Diálogo Transatlántico: Selección de Jurisprudencia Del Tribunal
Europeo y La Corte Interamericana de Derechos Humanos (2015) <www.echr.coe.int>.
73
The case involved the sexual raped of a 9-year-old girl (V.R.P.) by her father. The
minor’s mother (V.P.C.) denounced the facts, but the perpetrator was found
innocent of the crime of rape. During the trial, Mrs V.P.C. took other steps in order
to denounce irregularities in the investigation and the trial. Due to the objective
factors that generated a situation of unprotected rights of victims by the State and a
well-founded fear of judicial harassment and greater vulnerability to possible
attacks on their rights, Mrs V.P.C. left Nicaragua with her two daughters and were
granted asylum by the United States.275
The IACtHR declared that the girl suffered double violence: on the one hand,
sexual violence by a non-State actor; and, on the other hand, institutional violence
during the judicial procedure, in particular as a result of the forensic medical
examination and the reconstruction of the facts. Therefore, the Court found a
violation to the articles 5.2 and 1.1 (cruel, inhuman and degrading treatment), 5.1
(right to have his physical, mental, and moral integrity respected), 8.1 (right to a fair
trial)11.2 (right to privacy), 19 (rights of the child) and 25.1 (right to judicial
protection). Consequently, the IACtHR established that the judgement constituted
per se a form of reparation and ordered as specific measures the followings:
a) To determine responsibility and apply the law against officials who

contributed to the commission of revictimization’s acts and institutional
violence to the detriment of V.R.P.
b) The payment of the amounts to V.R.P., V.P.C. y N.R.P., concerning
medical, psychological and/or psychiatric treatment.
c) Providing through its specialized health institutions, and immediately,
adequately, free and effectively, psychological and/or psychiatric treatment
to the applicants.
d) The payment to V.R.P. of the scholarship, in order to cover the expenses
necessary for the completion of her professional training in the place where
she resides.
e) To adopt, implement and to monitor accurately three standardized
protocols regarding with the criminal proceedings in cases of child and
adolescent victims of sexual violence; comprehensive medical-legal
assessment for cases of children and adolescents who are victims of sexual
275
Case V.R.P., V.P.C.* and others v. Nicaragua. (Merits, Reparations and Costs), IACtHR, 8
March 2018.
74
violence; comprehensive care for the child and adolescent victims of sexual
violence.
f) To create and implement a specialized figure that provides free legal
assistance to children and adolescents who are victims of crimes, especially
sexual violence.
g) Adopting and implementing permanent training and courses for public
officials and medical personnel dealing with cases of child sexual violence.
h) The payment of compensation’s amounts for material and non-material
damage, as well as reimbursement of costs and expenses.
i) The monetary reintegration of the amounts disbursed during the
processing of the case to the Victims Legal Assistance Fund of the IACtHR.
Case of M.G.C. v. Romania

The case concerned an 11-year-old girl (M.G.C.), who claimed to have been
sexually abused by different members of the neighbouring family (J.V. a man of 52
years-old, four of the neighbour’s sons and their friend G.I). M.G.C.’s parents found
out the abuses committed because of her pregnancy. With the approval of her
parents, the girl underwent a surgical termination of the pregnancy. The M.G.C.’s
parents reported to the Public Prosecutor’s Office the rape that the minor had
suffered by J.V. and four of the children of that family.276
The applicant argued that “she had been forced by J.V. to have sex with him on
several occasions, alleging that he had threatened that he would beat her if she
told anyone. The other boys had also forced her to have sex with them, telling her
277
that it was J.V. who had told them what to do.” As well, medical and
psychological examinations were carried out to demonstrate the rape. However,
the medical examination did not show any signs of violence. While the
psychological showed that she was suffering from post-traumatic stress, and she
had insufficient discernment due to her age.
However, the National Court did not take into account the applicant’s psychological
examination. Thus, the friend was exonerated because he was under 14 years of
276
Case of M.G.C. v. Romania. (Merits and Just Satisfaction), ECtHR, 15 March 2016.
277
Idem, para 14.
75
age, the children of the family were sanctioned with administrative fines, and J.V
was convicted only for the crime of having sexual relations with a minor and not for
the rape of the 11-year-old minor (M.G.C.). The perpetrators Stated that she was
the one who had asked them directly if they wanted to have sex. J.V. also indicated
that it was the minor who had provoked him, and she was always scantily dressed.
Consequently, in 2016 the ECtHR declared the responsibility to Romania regarding

the violation to Articles 3 and 8 of the European Convention on Human Rights,
concerning the positive obligations deriving for the State based on the right to the
prohibition of torture and the right to respect for private and family life since J.V.
was not effectively convicted for the rape of the 11-year-old minor (M.G.C.) but was
convicted only for the crime of having sexual relations with a minor.
The Court emphasizes the special protection that children and other vulnerable
groups must receive from the State. Therefore, the ECtHR determines the
obligation, based on Articles 3 and 8 of the ECHR, to enact criminal laws that
effectively punish rape, and to implement those provisions through effective
investigation and prosecution.278 Likewise, regarding with the just satisfaction the
Court estimated, that due to the evident distress and psychological trauma
resulting at least partly from the shortcomings in the authorities’ and the fact that
she was pregnant as a result of the abuse. The Court awarded her EUR 9,000 in
respect of non-pecuniary damage. As well the Court fixed the corresponding costs
and expenses.
A. Analysis of the Cases.
First of all, it should be pointed out that these two cases are relatively recent
jurisprudence in both Courts, which constitute a paradigm concerning child sexual
abuse. For this reason, both Courts have had to go further in their study and
resolution. However, for this analysis, only how these regional Courts granted
278
Case of M.G.C. v. Romania. (Merits and Just Satisfaction), ECtHR, 15 March 2016, para. 59.
76
reparation to the victims will be examined, in order to evaluate the most
appropriate manner to heal human dignity.
Even though the ECtHR and IACtHR have different values and approaches in case
law analysis, however, there are some similarities in the acknowledgement of the
rights violated in each case. Both Courts declared that the minors suffered
inhuman and degrading treatment (Article 3 ECHR) (Article 5.2 and 1.1 ACHR), as
well a violation to the right to respect for private and family life (Article 8 ECHR)
(5.1 and 11.2 ACHR) and a violation to the Rights of the Child. As well, in each
case, the Courts coincide that these violations were caused not only by the
perpetrators of the rape but also for the institutional violence practiced by the
authorities.
Consequently, in order to redress the violations suffered, the IACtHR ordered a list
of integral remedies ranging from financial compensation for the material and non-
material harm suffered, investigation and punishment of those responsible for the
institutional violence suffered by the minor, the award of a scholarship, medical and
psychological care, and the adoption of protocols to train institutional personnel in
charge of child sexual violence.
While in the case of the European Court, the State’s obligation to take effective
deterrent measures against gross violations of personal integrity and especially in
children cases was reiterated. The ECtHR Stated that such measures should be
aimed at ensuring respect for human dignity and protecting the best interests of the
child, specifying the need for efficient investigation and prosecution and the
possibility of redress and compensation. However, regarding grant an effective
reparation, the Court was limited to mere awarding of monetary compensation.
Moreover, as may be shown in the jurisprudence under study, human dignity is a

value that is difficult or even impossible to repair when it is violated. However, the
77
granting of a range of possibilities to cover the damages perpetrated offers a
higher possibility of effectively heal human dignity, as the IACtHR has done.
On the other hand, concerning to the European Court, although the development of
its jurisprudence has caused great improvements for victims who turn to the
European Court of Human Rights in search of reparation, there is still being a lack
regarding with the heal of the human dignity including the present case. The
responsible State’s obligation under international law must reach far beyond mere
monetary compensation, driven by the establishment of clear and appropriate
measures by the Court. This possibility is opened due to the broader analysis have
made by the Court in recent years, where it has even come to impose specific
reparation measures.
Therefore, the best way in which the ECtHR should remedy more effectively is to
go further in the granting of essential measures, since this faculty does not
contravene the principle of subsidiarity that it proclaims. Subsequently, the logic
indicates that if the State party failed to comply with its primary obligations to
respect the provisions of the Convention, in the same way, there is a risk that it will
not comply with the obligation to repair or does not know how to comply with it.
Consequently, The European Court can provide a broader catalogue of reparation

measures, which would be a benefit to all parties in the conflict, mainly the victim to
heal the damage and his human dignity. As well the States to face their obligation
to repair and the Committee of Ministers to give a more precise and more practical
follow-up to the case for its proper execution. Besides, this catalogue will remain
within the functions of the Court and also will serve as a standard of application for
other States committing similar violations.
Therefore, the IACtHR, may be an example of the catalogue in mention as it is

shown in the specific case, where it is also transcendental to pay special attention
to the dignity and rights of children. Finally, the adoption of a catalogue of such
78
impetuosity will be especially beneficial for weak democracies, such as Romania,
even serving as a guarantee of non-repetition, since cases of child abuse had
previously already arisen.279
Conclusion
The human dignity is the ruler principle of human rights, yet, it is challenging to find
an exact definition since the principles, rules and way to live of the society are in
constantly changing. However, the value of dignity is an intrinsic value of the
human being. Thus, it has been recognized in a legal norm by the highest
international standard the UDHR, which conceives dignity as an inherent right of all
human beings.
On the other hand, in International Law, the serious violation of human rights and
consequently the human dignity calls gross violation or massive human rights
violations. The people who suffer these violations to human dignity and human
rights, are known as victims. The international jurisprudence has been established
a clear definition of this concept in principle 8 of the Basic Principles and
Guidelines on the Right to a Remedy and Reparation, envisaging two types of
victims: direct victim, person who is the direct target of the violation; and indirect
victims, who may comprehend the family or dependents of the direct victim and
person who have suffered harm in intervening to assist direct victims or their
relatives.
There was not any legal instrument who contained the right to remedy until 2005
when the Basic Principles and Guidelines on the Right to a Remedy and
Reparation for the Victims of gross violation of International Human Rights Law
and Serious Violations of International Humanitarian law was proclaimed by the
General Assembly. This instrument provides the specific and different types of
279
C.A.S. and C.S. v. Romania. (Merits and Just Satisfaction), ECtHR, 20 March 2012.
79
measures remedying a serious and gross violation of human rights. These
measures must be adequate, prompt and effective, for the successful redress.
Over the years, these measures have been classified in two important categories
measures pecuniary and nor pecuniary. The pecuniary measures are those
measures that focus on repairing the material and moral damage. While the not
pecuniary measures are bases in other subcategories: restitution and
rehabilitation, satisfaction and guarantees of non-repetition.
Furthermore, the Human Rights Regional Protection System has contemplated the
concept of human dignity. In the Inter-American system, has stipulated in the
article 11.1 of the ACHR, as well it has Stated that dignity is the governing principle
of all human rights. The Court affirmed that the notion of dignity derives directly
from the unity of the nature of humankind and is inseparable from the person, thus
dignity will always prevail regardless of the territory and the circumstances.
Moreover, regarding the evolution of the concept of integral reparation, the IACtHR
has been developed by its jurisprudence. As well, the Tribunal has adopted as an
essential part of its progress the international standard, with contemplates
reparations as part of a customary norm. The first time that the IACtHR
acknowledged the reparation as a right was in the Velásquez Rodríguez v.
Honduras case, where also was the first time establishing the obligation to the
State. The different factors and the socio-political context of the countries have
been a critical factor for the development of the Court’s jurisprudence.
The IACtHR’s practice as well has shared the criterion establishes by the UN
Principles and Guidelines regarding the conception of victim and damages,
however, in this point, the Court has added an innovative conception a criterion of
damage, the damage to the project life, which is common in the cases of enforced
disappearance. Regarding with the specific measures of reparation, the Inter-
American Court also has adopted the criterion establishes by the IHRL and Stated
80
that the reparation par excellence is the restitution and only if this is not possible
the Court will order the State to adopt other measures to redress.
The different ways of repairing vary according to the injury produced, but the Court
has classified the different remedies as restitution, rehabilitation, economic
compensation, satisfaction, guarantees of non-repetition, obligation to investigate,
prosecute and punishment and costs and expenses.
On the other hand, regarding to the European Regional Human Rights Protection
System, the concept of dignity is still absent in the legal order. However, it has
been envisaged within its jurisprudence, and recognized that dignity is “the very
essence of the Convention”. This concept has been more common in cases of
torture and inhuman treatment of persons in detention. Likewise, regarding the
right to reparation in the European system, the conception is considerable distant
than the International law and the other regional systems, the article 41 of the
ECHR institutes the concept by the just satisfaction. This article let the victims
appeal to the ECtHR granting the right to fair and equitable reparation only if the
State does not offer any remedy will it be possible, exercising the Court its
subsidiary function.
As well, the European Convention has instituted the obligation of the States
through article 46.1, a binding responsibility to the Convention’s States parties. The
ECtHR has also adopted the same notion as the universal human rights protection
system regarding the conception of victims and damages. Due to the subsidiarity
role of the ECtHR, in the European order, there is not an exhaustive catalogue of
specific reparation’s measures, unlike the IACtHR. Therefore, just satisfaction used
to be the only measure that the Court could directly impose to the State, and its
aim is the reparation for the pecuniary and non-pecuniary damages suffered by the
victims.
81
The ECtHR also conceives the restitutio in integrum as a way of primary
reparation. As well, in the last years, the Court has ordered specific measures in
some specific cases, what has meant a significant evolution in its jurisprudence.
However, it has been limited to the imposition of no more than one specific
measure. Also, the ECtHR has recognized award cost and expenses even if they
are not part of just satisfaction. Some elements have been influenced in the
development of the jurisprudence, such as criminal factors, political factors and
judicial factors.
Finally, beyond the convergences and divergences that each system may have at
first sight, in the analysis of similar cases may notice how each system applies its
criterion regarding redress human dignity. The Inter-American Court has offered
the possibility of healing human dignity through integral reparation. While the
European Court continues to limit itself to financial compensation, even though it
has already imposed specific reparation measures in some instances. Therefore,
an excellent way to provide more effective reparation to restore human dignity is to
adopt a catalogue of reparation measures that will be focused not only on providing
a sufficient and adequate reparation to the victim, but also to indicate the precise
manner in which the State must comply with this obligation and, finally, this
catalogue will also help the execution of judgment by the CoM, giving a more
explicit way of how to do it.
82
Bibliography
• Abdullah Yasa and Others v. Turkey. (Merits and Just Satisfaction), ECtHR, 16 July 2013.
• Abreu y Abreu JC, La Victimología a La Luz de Los Derechos Humanos, vol 12 (2016).
• A.C. and Others v. Spain. (Merits and Just Satisfaction), ECtHR, 22 April 2014.
• Acosta Calderón v. Ecuador (Merits, Reparations and Costs), IACtHR, 24 June 2005.
• Almonacid-Arellano et al. v. Chile (Merits, Reparations and Costs), IACtHR, 26 September
2006.
• Al Nashiri v. Poland. (Merits and Just Satisfaction), ECtHR, 24 July 2014.
• Aloeboetoe and others v. Suriname (Reparations and Costs), IACtHR, 10 September 1993.
• American Convention on Human Rights ‘Pact of San José, Costa Rica’ 1967 626
• Amezcua L, ‘Algunos Puntos Relevantes Sobre La Dignidad Humana En La Jurisprudencia
de La Corte Interamericana de Derechos Humanos’ (2007) 8 Revista Iberoamericana de
Derecho Procesal Constitucional 339.
• Amirov v. Russia. (Merits and Just Satisfaction), ECtHR, 27 November 2014.
• Andronicou and Constantinou v. Chipre. (Merits and Just Satisfaction), ECtHR, 9 October
1997.
• Anguelova v. Bulgaria. (Merits and Just Satisfaction), ECtHR, 13 June 2002.
• Anzualdo Castro v. Peru. (Reparations and Costs), IACtHR, 22 September 2009.
• Assanidze v. Georgia. (Merits and Just Satisfaction), ECtHR, 8 July 2004, concurring
opinion of Judge Costa.
• Ataykaya v. Turkey. (Merits and Just Satisfaction), ECtHR, 22 July 2014.
• Baldeón-García v. Peru (Merits, Reparations and Costs), IACtHR, 6 April 2006.
• Barberá, Messegué and Jabardo v. Spain. (Merits and Just Satisfaction), ECtHR, 6
December 1988.
• Barrios Altos v. Peru. (Merits, Reparations and Costs), IACtHR, 30 November 2001.
• Barta and Drajkó v. Hungary. (Merits and Just Satisfaction), ECtHR, 10 April 2007.
• Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law 2006 (The United Nations).
• Bassiouni, ‘Economic and Social Council’ (2000) 10236 The Complete Reference Guide to
United Nations Sales Publications, 1946–1978.
• Bassiouni, ‘The protection of “Collective Victims” in International Law’ (1988).
• Benzer and Others v. Turkey. (Merits and Just Satisfaction), ECtHR, 12 November 2013.
• Brenes Vargas R, Crónica de Jurisprudencia de La Corte Interamericana de Derechos
Humanos - Año 2012, vol 84 (2013).
• Broniowski v. Poland. (Merits and Just Satisfaction), ECtHR, 22 June 2004.
• Brumarescu v. Romania. (Merits), ECtHR, 28 October 1999.
• Buyse A, “The Role of Human Dignity in ECHR Case-Law” (ECHR BLOGJanuary 1, 1970)
Available at: http://echrblog.blogspot.com/2016/10/the-role-of-human-dignity-in-echr-
case.html.
• Calderón Gamboa JF, La Evolución de La ‘Reparación Integral’ En La Jurisprudencia de La
Corte Interamericana de Derechos Humanos (Comisión Nacional de los Derechos
Humanos ed, 1st edn, 2013)
• Camarillo Govea LAl, ‘Convergencias y Divergencias entre los Sistemas Europeo e
Interamericano de Derechos Humanos’ 67.
• Cambridge Dictionary (ed), “Meaning of Reparation” (Cambridge University online)
Available at: https://dictionary.cambridge.org/es/diccionario/ingles-frances/reparation
[Accessed May 14, 2019].
• Cantoral-Benavides v. Peru (Reparations and Costs), IACtHR, 3 December 2001.
• Caracazo v. Venezuela (Merits, Reparations and Costs), IACtHR, 29 August 2002.
83
• Carpio Nicolle and others v. Guatemala. (Merits, Reparations and Costs), IACtHR, 22
November 2004.
• C.A.S. and C.S. v. Romania. (Merits and Just Satisfaction), ECtHR, 20 March 2012.
• Case of the 19 Merchants v. Colombia. (Reparations and Costs), IACtHR, 5 Jul 2004.
• Castillo Páez v. Perú. (Merits, Reparations and Costs), IACtHR, 27 November 1998.
• Centro por la Justicia y el Derecho Internacional (CEJIL), ‘Las Reparaciones En El Sistema
Interamericano de Protección de Los Derechos Humanos’ [2004] Revista CEJIL.
• Centre for Legal Resources v. Romania. (Merits and Just Satisfaction), ECtHR, 17 July
2014.
• Cesti Hurtado v. Perú (Merits, Reparations and Costs), IACtHR, 31 May 2001.
• “Chorzów Factory” Germany v. Poland (Jurisdiction), PCIJ, 26 July 1927.
• Council of Europe, “Individual Measures” (The European Convention on
Human Rights) Available at: https://www.coe.int/en/web/human-rights-
convention/individual-measures. Accessed June 15, 2019.
• Conference on Security and Co-operation in Europe Final Act- Helsinki Final Act,
‘Conference on Security and Co-operation in Europe Final Act- Helsinki Final Act’ (1975).
• Constitutional Tribunal v. Peru. (Reparations and Costs), IACtHR, 24 September 1999,
para 41.
• Contreras and others v. El Salvador. (Merits, Reparations and Costs), IACtHR, 31 August
2011.
• “Cotton Field” v. Mexico (Merits, Reparations and Costs), IACtHR, 16 November 2009.
• Cusan and Fazzo v. Italy. (Merits and Just Satisfaction), ECtHR, 7 January 2014.
• Cruz LM, ‘La Reparación a Las Víctimas En El Convenio Europeo de Derechos Humanos’
(2010) LXII Revista Española de Derecho Internacional.
• Cruz-Varas v Sweden. (Merits and Just Satisfaction), ECtHR, 20 March 1991.
• Çiçek v. Turkey. (Merits and Just Satisfaction), ECtHR, 27 February 2001.
• De la Cruz Flores v. Peru, (Merits, Reparations and Costs), IACtHR, 18 November 2004.
• Dimitrijević I, ‘Remedies for Human Rights Violations in Jurisprudence of the European
Court of Human Rights and Their Execution by Members States. LLM International and
European Law Master Thesis’ (Tilburg University 2017)
• ECOSOC Resolution 1235 (XLII), 6 June 1967. The object of this resolution was mandated
to the Commission on Human Rights to examine relevant information on serious violations
of human rights and fundamental freedoms.
• ECOSOC Resolution 1503 (XLVIII), 27 May 1970. This resolution aimed to establish a
procedure for examining communications concerning violations of human rights and
fundamental freedoms.
• Elçi and others v. Turkey. (Merits and Just Satisfaction), ECtHR, 13 November 2003.
• Eradicating impunity for serious human rights violations: Guidelines and reference texts.
2011
• Etymonline.com. (2019). dignity | Origin and meaning of dignity by Online Etymology
Dictionary. [online] Available at: https://www.etymonline.com/word/dignity [Accessed 7 April
2019].
• ‘European Convention on Human Rights’.
• Fleury and others v. Haití. (Reparations and Costs), IACtHR, 23 November 2011.
• Fornerón and daughter v. Argentina. (Merits, Reparations and Costs), IACtHR, 27 April
2012, para 15.
• Foundation Hostel for Students of the Reformed Church and Stanomirescu v. Romania.
(Merits and Just Satisfaction), ECtHR, 7 January 2014.
• Furlan and Family v. Argentina. (Merits, Reparations and Costs), IACtHR, 31 August 2012.
• Garrido and Baigorria v. Argentina (Merits, Reparations and Costs), IACtHR, 27 August
1998.
• Gelman v. Uruguay, (Merits, Reparations and Costs), IACtHR, 24 February 2011.
• Gelsomini Sigeri SRL v. Italy. (Merits and Just Satisfaction), ECtHR, 18 December 2003.
84
• General Assembly U, ‘Resolution 60/147 (Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human Rights Law
and Serious Violations of International Humanitarian Law)’ (2005) 147 1
• Geneva Academy of International Humanitarian Law and Human Rights, What Amounts to
‘a Serious Violation of International Human Rights Law’? An Analysis of Practice and Expert
Opinion for the Purpose of the 2013 Arms Trade Treaty (2014).
• Gerasimov and Others v. Russia. (Merits and Just Satisfaction), ECtHR, 1 July 2014.
• Giorgi Jerónimo, “La Recaudación Impositiva En América Latina Es Baja.” [2017] El
Observador Available at: https://www.elobservador.com.uy/nota/-como-es-la-salud-en-
america-latina—2017127500 accessed May 10, 2019.
• Goiburú et al. v. Paraguay (Merits, Reparations and Costs), IACtHR, 22 September 2006.
• Gómez-Paquiyauri Brothers v. Perú. (Merits, Reparations and Costs), IACtHR, 8 July 2004.
• González Medina and family v. Dominican Republic, (Merits, Reparations and Costs),
IACtHR, 27 February 2012.
• Gudiel Álvarez and others ("Diario Militar") v. Guatemala. (Merits, Reparations and Costs),
IACtHR, 20 November 2012.
• Gülay Çetin v. Turkey. (Merits and Just Satisfaction), ECtHR, 5 March 2013.
• Gutierrez Soler v Colombia (Merits, Reparations and Costs), IACtHR, 12 September 2005.
• Herrera-Ulloa v. Costa Rica (Merits, Reparations and Costs), IACtHR, 2 July 2004.
• High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States:
Reparations Programmes (2008).
• Hirst v. United Kingdom. (Merits and Just Satisfaction), ECtHR, 30 March 2004.
• HLR v. France. (Merits and Just Satisfaction), ECtHR, 29 April 1997.
• Iatridis v. Greece. (Just Satisfaction), ECtHR, 19 October 2000, para 98.
• Ilasçu and others v. Russia and Moldova. (Merits and Just Satisfaction), ECtHR, 8 July
2004.
• Ireland v, UK. (Merits and Just Satisfaction), ECtHR, 18 January 1978.
• Ituango Massacres v. Colombia (Merits, Reparations and Costs), IACtHR, 1 July 2006.
• Ivcher Bronstein v. Peru. (Reparations and Costs), IACtHR, 24 September 1999, para 42.
• Izci v. Turkey. (Merits and Just Satisfaction), ECtHR, 23 July 2013.
• Juan Pablo P-L-A, ‘“The Situation of Reparations in the Inter-American Human Rights
System : Analysis and Comparative Considerations”’ (2016) 20 ASIL Insights 1.
• Juridical Condition and Rights of Undocumented Migrants, IACtHR, Advisory Opinion OC-
18/03, 17 September 2003.
• Jurists IC of, The Right to a Remedy and Reparation for Gross Human Rights Violations
(2nd edn, International Commission of Jurists 2018).
• Kaliña and Lokono People v. Suriname (Merits, Reparations and Costs), IACtHR, 25
November 2015.
• K. A. v. Finland. (Merits and Just Satisfaction), ECtHR, 14 January 2003.
• Kichwa de Sarayaku Indigenous Community v. Ecuador. (Merits, Reparations and Costs),
IACtHR, 27 june 2012.
• Klass and others v. Germany. (Merits), ECtHR, 6 September 1978.
• Koolen v. Belgium. (Merits), ECtHR, 18 December 1963.
• Krone Verlag GmbH & Co KG v. Austria. ECtHR, 20 March 2003.
• Kudla v. Poland. (Merits and Just Satisfaction), ECtHR, 26 October 2000.
• Larioshina v. Russia. (Merits and Just Satisfaction), ECtHR, 23 April 2002.
• “Las Dos Erres” Massacre v. Guatemala (Merits, Reparations and Costs), IACtHR, 24
November 2009.
• Loayza Tamayo v. Peru. (Merits, Reparations and Costs), IACtHR.
• Lopes Gomes de Silva v. Portugal. (Merits and Just Satisfaction), ECtHR, 28 September
2000.
• Lucia Z and Becerra B, ‘La Obligación de Reparar Como Principio Del Derecho
Internacional Público’ 83
85
• Luisa M and Castán M, ‘La Dignidad Humana, Los Derechos Humanos y Los Derechos
Constitucionales’ (2007) 09 Revista d e Bioética y Derecho 1
<http://www.bioeticayderecho.ub.es>
• Mac-Gregor EF, ‘Las Siete Principals Líneas Jurisprudenciales de La Corte Interamericana
de Derechos Humanos Aplicable a La Justicia Penal’ (2014) 59 Revista IIDH 29.
• Maksimov v. Azerbaijan, (Merits and Just Satisfaction), ECtHR, 8 October 2009.
• Mayagna (Sumo) Awas Tingni Community v. Nicaragua (Merits, Reparations and Costs),
IACtHR, 31 August 2001.
• Matsuda, M. (2005). Human Dignity as a Normative Concept. [online] Cambridge.org.
Available at: https://www.cambridge.org/core/services/aop-cambridge-
core/content/view/F5C2D6F4C7A31D7DE2F6AD55670C24D4/S0002930000071074a.pdf/h
uman_dignity_as_a_normative_concept.pdf [Accessed 17 May 2019] P.3.
• Marckx v. Belgium. ECtHR, 13 June 1979, para 22.
• McCann v. United Kingdom. (Merits and Just Satisfaction), ECtHR, 27 September 1995.
• McCaughey and Others v. United Kingdom. 16 July 2013
• M. C. v. Bulgaria. (Merits and Just Satisfaction), ECtHR, 4 December 2003.
• Medina Quiroga Carla, The Battle of Human Rights, Gross, Systematic Violations and the
Inter-American System, (1988).
• Messina (no. 2) v. Italy. (Merits and Just Satisfaction), ECtHR, 28 September 2000.
• M.G.C. v. Romania. (Merits and Just Satisfaction), ECtHR, 15 March 2016.
• Montoya, O. (2019). Dignidad humana. [online] Diccionario Jurídico. Available at:
http://www.diccionariojuridico.mx/definicion/dignidad-humana/. [Accessed 17 May 2019].
• Myrna Mack Chang v. Guatemala. (Merits, Reparations and Costs), IACtHR, 25 November
2003.
• Nadege Dorzema and others v. Dominican Republic. (Merits, Reparations and Costs),
IACtHR, 24 October 2012.
• Neira Alegría and others v. Perú (Reparations and Costs), IACtHR, 19 september 1996,
para. 37.
• Oas, “Organization of American States: Democracy for Peace, Security, and Development”
(OAS August 1, 2009) <http://www.oas.org/en/iachr/mandate/basics/fund.asp>.
• Oldham v. U.K. (Merits and Just Satisfaction), ECtHR, 26 September 2000.
• Oleksandr Volkov v. Ukraine. (Merits), ECtHR, 9 January 2013.
• Oxford Dictionaries | English. (2019). dignity | Definition of dignity in English by Oxford
Dictionaries. [online] Available at: https://en.oxforddictionaries.com/definition/dignity.
• Palamara Iribarne v. Chile. (Merits, Reparations and Costs), IACtHR, 22 November 2005.
• Papamichalopoulos v. Greece. (Just Satisfaction), ECtHR, 31 October 1995.
• Parra Vera O, ‘La Jurisprudencia de La Corte Interamericana Respecto a La Lucha Contra
La Impunidad : Algunos Avances y Debates.’ (2012) Año 13, No Revista Jurídica de la
universidad de Palermo 5.
• Pitkanen v. Finland. (Merits and Just Satisfaction), ECtHR, 9 March 2004.
• President of the ECtHR, Practice Direction: Just Satisfaction Claims, (2018).
• Publishers WL, Diálogo Transatlántico: Selección de Jurisprudencia Del Tribunal Europeo y
La Corte Interamericana de Derechos Humanos (2015) <www.echr.coe.int>
• Quintana Osuna KI, ¿Superposición de Las Reparaciones Otorgadas Por Comisiones de
La Verdad y Tribunales Regionales de Derechos Humanos? Una Aproximación a La
Realidad Interamericana (Comisión Nacional de los Derechos Humanos 2013).
• Radilla Pacheco v. Mexico. (Merits, Reparations and Costs), IACtHR, 23 November 2009.
• Ramírez SG, ‘Las Reparaciones en la Jurisprudencia de la Corte Interamericana de
Derechos Humanos’ (1999)
• REDRESS, Implementing Victims ’ Rights (2006).
• Ricardo Canese v. Paraguay (Merits, Reparations and Costs), IACtHR, 31 August 2004.
• Robouts H, ‘Reparations for Victims of Gross and Systematic Human Rights Violations :
The Notion of Victim Systematic Human Rights Violations ’: (2003) 16 Third World Legal
Studies 89 <http://scholar.valpo.edu/twls/vol16/iss1/S>
86
• Rojas CN, Las Reparaciones Ante La Corte Interamericana de Derechos Humanos ( 1988 -
2007 ) (Second Edi, University of Chile 2007)
<http://www.libros.uchile.cl/files/presses/1/monographs/389/submission/proof/files/assets/c
ommon/downloads_a11f2144/page0001.pdf>
• Rules of Procedure of the Inter-American Commission on Human Rights 2002.
• Sawhoyamaxa Indigenous Community v. Paraguay (Merits, Reparations and Costs),
IACtHR, 29 March 2006.
• Schneider J, ‘Reparation and Enforcement of Judgments A Comparative Analysis of the
European and Inter-American Human Rights Systems’ (University of Mainz 2015)
• Scozzari and Giunta. (Merits and Just Satisfaction), ECtHR, 13 July 2000.
• Scoppola v. Italy. (Merits and Just Satisfaction), ECtHR, 17 September 2009.
• Selmouni v. France. (Merits and Just Satisfaction), ECtHR, 28 July 1999.
• Shelton D, ‘Remedies and Reparation’ in Oxford University Press (ed), Remedies in
International Human Rights Law (2nd edn, 2005).
• Silver and others v. United Kingdom. (Just Satisfaction), ECtHR, 24 October 1983.
• Soering v. UK. (Merits and Just Satisfaction), ECtHR, 7 July 1989.
• “Report of the Secretary-General: Question of the Realization in All Countries of Economic,
Social and Cultural Rights” (2013) Available at:
<https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session25/_layouts/15/WopiF
rame.aspx?sourcedoc=/EN/HRBodies/HRC/RegularSessions/Session25/Documents/A-
HRC-25-31_en.doc&action=default&DefaultItemOpen=1>.
• Singhvi LM, ‘Vienna Declaration and Programme of Action’ [2009] A tale of three cities 5
• States M, ‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power’ 7 <https://www.un.org/en/genocideprevention/documents/atrocity-
crimes/Doc.29_declaration victims crime and abuse of power.pdf>.
• “Street Children” v. Guatemala (Reparations and Costs), IACtHR, 26 May 2001.
• Surveillance de l’exécution des arrêts et décisions de la Cour Européenne des Droits de
L’Homme, 6ème Rapport du Comité des Ministres, (2012).
• The “Gómez-Paquiyauri Brothers” v. Peru. (Merits, Reparations and Costs), IACtHR, 8 July
2004.
• Tiu Tojín v. Guatemala, (Merits, Reparations and Costs), IACtHR, 26 November 2008.
• Torreggiani and Others v. Italy. (Merits and Just Satisfaction), ECtHR, 8 January 2013.
• United Nations, ‘Vienna Convention on the Law of Treaties, United Nations, Treaty Series.’
(1969) 1155 United Nations, Treaty Series 331
<http://www.refworld.org/docid/3ae6b3a10.html>
• United Nations General Assembly, ‘Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human Rights Law
and Serious Violations of International Humanitarian Law (A/C.3/60/L.24)’ (2005) 24
International & Comparative Law Quarterly 1
<http://www.journals.cambridge.org/abstract_S0020589300000063>
• Universal Declaration of Human Rights 1948.
• Uzcátegui v. Venezuela. (Merits, Reparations and Costs), IACtHR, 3 September 2012.
• Van Boven T, ‘Study Concerning the Right to Restitution, Compensation and Rehabilitation
for Victims of Gross Violations of Human Rights and Fundamental Freedoms.’ (1993).
• Vasilescu v. Belgium. (Merits and Just Satisfaction), ECtHR, 25 November 2014.
• V.C v. Slovakia. (Merits and Just Satisfaction), ECtHR, 8 November 2011, para.105.
• Vlad and Others v. Romania, (Merits and Just Satisfaction), ECtHR, 26 November 2013.
• Velásquez Rodríguez v. Honduras (Merits, Reparations and Costs), IACtHR, 21 July 1989.
• V.R.P., V.P.C.* and others v. Nicaragua. (Merits, Reparations and Costs), IACtHR, 8 March
2018.
• Vyerentsov v. Ukraine. (Merits and Just Satisfaction), ECtHR, 11 April 2013.
• Walter C and others, ‘Draft Articles on Responsibility of States for Internationally Wrongful
Acts (2001)’ (2011) II 1465.
• Werner v. Poland. (Merits and Just Satisfaction), ECtHR, 15 November 2001.
87
• Working Group on Enforced or Involuntary Disappearances, ‘General Comment on Women
Affected by Enforced Disappearances’.
• Xákmok Kásek v. Paraguay (Merits, Reparations and Costs), IACtHR, 24 August 2010.
• Yvon Neptune v Haití. (Merits, Reparations and Costs), IACtHR, 6 May 2008.
• Zornić v. Bosnia and Herzegovina. (Merits and Just Satisfaction), ECtHR, 15 July 2014.
88
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02. Theses Global Campus Europe: EMA
2019
þÿCompensating human dignity: just

þÿsatisfaction and integral reparation
approaches : a comparative analysis
between the jurisprudence of the
European Court of Human Rights and
the Inter-American Court Human Rights
Ayala Zamora, Bárbara María
https://doi.org/20.500.11825/1069
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UNIVERSITY OF MONTPELLIER

European Master’s Degree in Human Rights and Democratisation

COMPENSATING HUMAN DIGNITY:

A Comparative analysis between the Jurisprudence of the European Court of

Author: Bárbara María Ayala Zamora.

ACHR- American Convention on Human Rights

Human dignity should not be measured by financial compensation. However, in the

The comparative analysis is going to be the first methodology to be applied in this

Limitation of the work

Even when international jurisprudence is invoked for clarification and proper

Therefore, the legal framework establishment is guided by the Universal

Afterwards, this development began to see reflected in diverse international

Therefore, both instruments coincide that there is no hierarchy regarding violation

Consequently, the UN establishes a clear definition of this concept in principle 8 of

“persons who individually or collectively suffered harm, including physical or

Even, if the international jurisprudence does not maintain a homogeneous criterion

In a literary and straightforward definition, according to the Cambridge English

E. A General Idea of the Evolution of the right to reparation in the

been guided by the Universal Declaration.54

Moreover, as also detailed in the previous concept, the first jurisprudence to

Consequently, the International Human Rights Law has developed an extensive

Moreover, three particular components should highlight in this measure: a) the

Rehabilitation aims to guarantee victims of human rights violations the restoration

iv. Assurances and guarantees of non-repetition

II. The System of Reparation in the Jurisprudence of the Inter-

Furthermore, this development has served as a breakthrough by the rule of law’s

Damnum Emergens (actual loss)

Loss of earnings or Lucrum Cessans (future, expected loss)

Damage to family patrimony

For immaterial damage, the Tribunal assesses psychological or physical damage.

Moral and Psychological (Pain and suffering)

The IACtHR conceives the moral damage as a subcategory of the immaterial

The Moral harm is usually repaired employing economic compensation, although

Damage caused to the victim’s life plan

Within the Court’s broad interpretation of the possible damages suffered by a

A. Integral reparations measures

Consequently, as previously mentioned, Article 63 of the Convention gives the

Nonetheless, in some cases, the Tribunal has imposed some measures as a

On the other hand, regarding moral damages, the Inter-American Court

Moreover, following the established line by the international doctrine of human

Notwithstanding, sometimes, due to the passage of time or other various factors, it

f. Obligation to investigate, prosecute and, punishment.

However, this reparation measure is considered one of the most complex,

g. Costs and Expenses

The Court has contemplated this remedy as an acknowledgement of the

Additionally, in order to facilitate access to the inter-American human rights system

Additionally, as in any controversy, the resolution of the conflict will always

B. Factors Influencing the Development of Certain Reparations in the

The varied catalogue of reparation measures provided today by the jurisprudence

b. Inefficient national judicial system

The Inter-American jurisprudence has considered these factors to establish that

C. The concept of dignity in the Jurisprudence of the Inter-American Court of

Moreover, concerning the reparations, the Tribunal refers to human’s dignity

In conclusion, it provides a general idea of the situation in which Inter-American

III. The System of Reparation in the Jurisprudence of the European

A. Specific Measures of reparation

For instance, restitution or proceedings reopening are clear examples of individual

Consequently, the Court has implemented the international notion concerning

Undoubtfully, this innovation has constituted a colossal practice in the