In the Blake Case,
the Inter-American Court of Human
Rights, composed of the following judges:
Hernán
Salgado Pesantes, President
Antônio A. Cançado Trindade, Vice President
Maximo Pacheco Gómez, Judge
Oliver Jackman, Judge
Alirio Abreu Burelli, Judge
Sergio García Ramírez, Judge
Carlos Vicente de Roux Rengifo, Judge
Alfonso
Novales Aguirre, Judge ad hoc
also present:
Manuel E. Ventura-Robles, Secretary, and
Renzo Pomi, Deputy Secretary
pursuant to Articles 29, 55, and
56 of the Rules of Procedure of the Inter-American Court of Human Rights (hereinafter
"the Court,” “the Inter-American Court,” or “the Tribunal”), in relation
to Article 63(1) of the American Convention on Human Rights (hereinafter “the
Convention” or “the American Convention”) and in compliance with its January
24, 1998 Judgment, renders the following judgment on reparations in the present
case, brought by the Inter-American Commission on Human Rights (hereinafter
“the Commission” or “the Inter-American Commission”) against the Republic
of Guatemala (hereinafter “Guatemala” or “the State”).
I
1. Under the provisions of Articles 62 and 63(1) of the Convention,
the Court has jurisdiction to determine reparations and expenses in the present
case, inasmuch as Guatemala ratified the American Convention on May 25, 1978,
and accepted the contentious jurisdiction of the Court on March 9, 1987.
II
2. The present case was submitted to the Court by the Inter-American
Commission in an application dated August 3, 1995, which was accompanied by
Report No. 5/95 of February 15, 1995. The
case originated with a petition (No. 11.219) against Guatemala, lodged with
the Secretariat of the Commission on November 18, 1993.
3. On April 16, 1997, Guatemala “accept[ed] international human rights
responsibility, for delay in the application of justice until the year nineteen
hundred and ninety-five (1995).”
4. On January 24, 1998, the Court rendered a judgment on the merits
of the case in which:
1. it declar[ed] that the State of Guatemala violated,
to the detriment of the relatives of Mr. Nicholas Chapman Blake, the judicial
guarantees set forth in Article 8(1) of the American Convention on Human Rights,
in relation to Article 1(1) of the same, in the terms established in paragraphs
96 and 97 of [said] judgment.
2. it declar[ed] that the State of Guatemala violated,
to the detriment of the relatives of Mr. Nicholas Chapman Blake, the right
to humane treatment enshrined in Article 5 of the American Convention on Human
Rights, in relation to Article 1(1) of the same, in the terms established
in paragraphs 112, 114, 115 and 116 of [said] judgment.
3. it declar[ed] that the State of Guatemala is
obliged to use all the means at its disposal to investigate the acts denounced
and punish those responsible for the disappearance and death of Mr. Nicholas
Chapman Blake.
4. it declar[ed] that the State of Guatemala is
obliged to pay a fair compensation to the relatives of Mr. Nicholas Chapman
Blake and reimburse them for the expenses incurred in their representations
to the Guatemalan authorities in connection with this process.
5. it order[ed] that the reparations stage be
opened.
III
5. On January 24, 1998, the Inter-American Court, in compliance with
its judgment of that date, decided:
1. To grant the Inter-American Commission on Human
Rights until March 13, 1998, to submit a brief and any evidence that it may
have in its possession for the purpose of determining the compensation and
expenses in this case.
2. To grant the family members of Nicholas Chapman
Blake or their representatives until March 13, 1998, to submit a brief and
any evidence that they may have in their possession for the purpose of determining
the compensation and expenses in this case.
3. To grant the State of Guatemala until May 4,
1998, to make its observations about the briefs that the Inter-American Commission
on Human Rights, and the relatives or their representatives submit pursuant
to the preceding paragraphs.
6. On March 2, 1998, the relatives of Mr. Nicholas Blake asked the
Court to extend the deadline set by this Court in its January 24, 1998 Resolution
for one month to allow them to submit a brief on reparations.
7. On March 4, 1998, the President of the Court (hereinafter “the President”)
extended the deadline until March 27, 1998, to permit the relatives of Mr.
Nicholas Blake or their representatives and the Commission to submit their
briefs on reparations. The President
also extended the deadline for the Government to submit its brief on the same
topic until May 27, 1998.
8. On March 9, 1998, the Inter-American Commission informed the Court
of the designation of Mr. Domingo E. Acevedo to serve with Delegate Claudio
Grossman as a delegate in this case.
9. On March 9, 1998, the President summoned the relatives of Mr. Nicholas
Blake or their representatives, the Inter-American Commission, and Guatemala
to a public hearing on reparations, to be celebrated on June 10, 1998 at the
seat of the Court.
10. On March 27, 1998, the Inter-American Commission submitted its brief
on reparations in the present case.
11. On that same day the relatives of Mr. Nicholas Blake submitted their
brief on reparations in English. On
March 30, 1998, the corresponding annexes arrived at the Court. On April 14, 1998, the Spanish translation
of the brief on reparations was received.
12. On May 22, 1998, the State requested that the President extend the
deadline for its observations on the reparations briefs submitted by the relatives
of Mr. Nicholas Blake and the Commission until June 2, 1998. On that same day the Secretariat informed Guatemala
that the deadline for it to submit its brief had been postponed until the
requested date.
13. On June 2, 1998, Guatemala submitted its observations to the reparations
briefs of the relatives of Mr. Nicholas Blake and the Commission.
14. On June 10, 1998, the Court held a public hearing on reparations.
There appeared:
for the relatives of Mr. Nicholas
Blake:
Joanne Hoeper;
for the Inter-American Commission:
Domingo E. Acevedo, delegate
for the State of Guatemala:
Dennis Alonzo Mazariegos, agent;
Ambassador Guillermo Argueta Villagrán, counsel; and
Alejandro Sánchez Garrido, assistant.
15. On June 12, 1998, the State submitted a report on the procedural
situation of the criminal trial concerning Mr. Nicholas Blake, processed in
the Department of Huehuetenango. That
report had been requested by the President during the public hearing held
in this case.
16. On July 21 and November 9, 1998, the Court asked the family of Nicholas
Blake, as evidence to help the Court arrive at a more informed judgment, for
certified copies of their birth certificates and the birth certificate of
Mr. Nicholas Blake; a certified copy of Nicholas Blake’s professional degree or an appropriate document
that corroborates his academic degree; a record of his salary or receipts
that corroborate his income, and mortality tables for the United States of
America for the years 1985, 1987, 1992, as well as the current mortality tables.
On November 9, 1998, the Court asked Guatemala, as evidence to help
the Court arrive at a more informed judgment, for official certification of
the tables for the exchange rate between the Quetzal and the U.S. dollar for
the years 1985, 1987, and 1992 and the rate in effect at that time.
17. On August 19 and December 24, 1998, respectively, the family of
Mr. Nicholas Blake submitted a copy of the birth certificate of Richard Blake
Jr. and certified copies of the passports of Mary Anderson Blake, Richard
Randolph Blake, and Samuel Wheaton Blake, and the documentation requested
by the Court on November 9, 1998.
18. On December 17, 1998, Francis B. Coombs, Jr. submitted a writing
concerning the personal and professional characteristics of Mr. Nicholas Blake.
19. On January 12, 1999, the State sent the documentation that was requested
on November 9, 1998.
IV
20. For the decision on reparations in the present case, the Court considers
it necessary to bear in mind the following points:
a. that in its July 2, 1996 Judgment on Preliminary
Objections, the Court declared itself incompetent to decide on the alleged
responsibility of the State for the detention and death of Mr. Nicholas Blake,
which occurred prior to Guatemala’s acceptance of the compulsory jurisdiction
of the Court;
b. that is the above cited judgment, the Court
also determined that certain effects of the actions of which Mr. Nicholas
Blake was a victim continued until June 14, 1992, when his remains were established,
a date which is subsequent to Guatemala’s acceptance of the contentious jurisdiction
of the Court. Consequently, the Court
declared itself competent to rule on possible violations of the Convention
resulting from the effects, conduct, and acts which occurred after that acceptance.
c. that in the judgment on the merits in the present
case, rendered on January 24, 1998, the Court, in view of the partial acceptance
of responsibility on the part of Guatemala, presumed to be true all facts
related to the delay of justice until 1995, and determined that all facts
relating to the obstruction of justice had effects up to the time the judgment
was rendered, inasmuch as the case initiated by the death of Blake was still
pending in the domestic courts.
d. that the Court declared in the judgment on
the merits, that the judicial guarantees set forth in Article 8(1) of the
Convention, in relation to Article 1(1) of the same, were violated to the
detriment of the relatives of Mr. Nicholas Blake, inasmuch as those relatives
have the right to demand that the disappearance and death of their son and
brother be effectively investigated by the Guatemalan authorities, that proceedings
be instituted against those responsible for the crimes, that appropriate punishment
be imposed on the perpetrators, and that the relatives be compensated for
the damages and injuries they sustained; and
e. that the Court also declared in said judgment
that the right to humane treatment set forth in Article 5 of the Convention
in relation to Article 1(1) of the same was violated by the State to the detriment
of the relatives of Mr. Nicholas Chapman Blake, inasmuch as his disappearance
caused his family suffering and anguish, a sense of insecurity, and frustration
and impotence in the face of the Guatemalan authorities’ failure to investigate;
and that the burning of the mortal remains of Mr. Nicholas Blake increased
their suffering.
21. As the Court already determined that it was not competent to render
a decision on the deprivation of liberty and the death of Nicholas Blake (supra
20(a)), it will limit itself to decide on reparations within the framework
established in the judgment on the merits, which refers exclusively to the
violation, by Guatemala, of Articles 5 ( Right to Humane Treatment), and 8(1)
(Right to a Fair Trial) of the American Convention in conjunction with Article
1(1) of the same, to the detriment of the relatives of Mr. Nicholas Blake.
V.
22. In regard to evidence, when
the relations of Mr. Nicholas Blake submitted their brief on reparations,
they attached the following documents:
a. a statement by Samuel W. Blake dated March
26, 1998;
b. an affidavit
by Mr. Richard Blake, dated March 26, 1998;
c. an affidavit
by public accountant Michael Cohan, dated March 23, 1998, which was attached
to a curriculum vitae, several tables of minimum salaries for a journalist
or photographer, and a life expectancy table for the United States for the
period 1989-1991.
(cfr. Michael
Cohan is a Certified Public Accountant with over twenty years of experience
as an audit and accounting professional; Reporter, Photographer Top Minimums
in 121 Contracts as of April 1, 1985; average reporter top minimum as of April
1, 1985; Reporter, Photographer Top Minimums in 122 Contracts as of April
1, 1986; average reporter top minimum as of April 1, 1986; Reporter, Photographer
Top Minimums in 123 Contracts as of June 1, 1987; average reporter top minimum
as of June 1, 1987; Reporter, Photographer Top Minimums in 120 Contracts as
of April 1, 1988; average reporter top minimum as of April 1, 1988; Reporter,
Photographer Top Minimums in 119 Contracts as of April 1, 1989, average reporter
top minimum as of April 1, 1989; Reporter, Photographer Top Minimums in 121
Contracts as of April 1, 1990; average reporter top minimum as of April 1,
1990; Reporter, Photographer Top Minimums in 122 Contracts as of April 1,
1991; average reporter top minimum as of April 1, 1991; Reporter, Photographer
Top Minimums in 121 Contracts as of April 1, 1992; average reporter top minimum
as of April 1, 1992; Reporter, Photographer Top Minimums in 118 Contracts
as of April 1, 1993; average reporter top minimum as of April 1, 1993; Reporter,
Photographer Top Minimums in 115 Contracts as of June 1, 1994; average reporter
top minimum as of June 1, 1994; Reporter, Photographer Top Minimums in 106
Contracts as of June 1, 1995; average reporter top minimum as of June 1, 1995;
Reporter, Photographer Top Minimums in 102 Contracts as of December 1, 1996;
average reporter top minimum as of December 1, 1997; Reporter, Photographer
Top Minimums in 102 Contracts as of April 1, 1997; average salary as of April
1, 1997 and U.S. Decennial life Tables for 1989-91);
d. documents that verify trips to Guatemala and
the expenses related to those trips
(cfr. receipts
for airline tickets on American Airlines Inc., Eastern Airlines Inc., Taca
International, and Pan Am World Airways, for trips 7,8,11,15,17,19, 20 and
22 the tickets are in the name of Richard R. Blake Jr., Richard Blake, Douglas
Owsley, and John Verson; Hertz Guatemala; Hotel Camino Real de Guatemala;
La Trattoria Guatemala; Restaurante Marios, Guatemala and Restaurante Romanello,
Guatemala);
e. receipts for supplementary expenses associated
with those trips
(cfr. January
16, 1997 receipt from Helicópteros de Guatemala issued to Richard Blake; note
that assigns the expenses incurred by Michael Shawcross and receipts;
contract with Felipe Alva, Military Commissioner of Chiantla in the
Department of Huehuetenango dated May 19, 1992; note from Sue H. Patterson,
General Counsel of the Embassy of the United States of America, dated October
4, 1990, and a memorandum from Richard and Mary Blake, dated March 22, 1998
to which they attached receipts);
f. March 24, 1998, statement by Doctor Malcolm
Owen Slavin
g. March 27, 1998, affidavit of Joanne Hoeper
h. expenses of the representatives of the relatives
of Mr. Nicholas Blake
(cfr. May 21, 1997, note of Joanne Hoeper)
23. Neither the Inter-American Commission nor the State presented any
evidence.
***
24. In their brief on reparations, the representatives of the relatives
of Mr. Nicholas Blake requested that at this stage of the proceedings the
Court consider the statements made during the merits of the case by Samuel
and Richard Blake Jr., brothers of Nicholas Blake.
***
25. On August 19 and December 24, 1998, the relatives of Mr. Nicholas
Blake submitted the evidence required by the Court to help it arrive at a
more informed judgment
(cfr. copy of the birth certificate
of Richard Blake, Jr. and a certified copy of the passports of Mary Anderson
Blake, Richard Randolph Blake, and Samuel Wheaton Blake; copy of the birth
certificate of Nicholas Chapman Blake; November 19, 1998 authenticated note
from the University of Vermont; December 14, 1998, letter from Rodney G. Dogherty,
December 9, 1998 note from Francis B. Coombs Jr.; copies of articles written
by Nicholas Blake for the Globe & the Mail, Philadelphia Inquirer Daily
News, Harper’s, The Magazine of the Miami Herald, St. Louis Post Dispatch,
and The Progressive; several documents submitted to the IRS showing the income
of Nicholas Blake for the years 1981 and 1983, and mortality tables for the
United States of America during the years 1985, 1987, 1992, and 1995).
26. On January 12, 1999, the State submitted documents pertaining to
the exchange rate between the Quetzal and the United States dollar for the
years 1985, 1987, 1992, and 1997, in accordance with information furnished
by the Bank of Guatemala.
(cfr. January 12, 1999, note from the Bank of Guatemala, and exchange
rates from the financial market for the years 1992 and 1998).
27. The documents submitted by the relatives of Mr. Nicholas Blake and
by the State were neither contested nor challenged, and therefore the Court
accepts them as valid and orders their incorporation into the body of evidence.
28. The body of evidence of a case is unique and indivisible and is
made up of the evidence submitted during all stages of the proceedings. For that reason, the statements made by Samuel
and Richard Blake Jr., during the public hearing on the merits of the case
held before this Court on April 17, 1997, also comprise part of the evidence
that will be considered during the present stage, regardless of the request
of the representatives of the relatives of Mr. Nicholas Blake.
VI
29. In operative paragraph four of the Judgment of January 24, 1998,
the Court declared that Guatemala was “obligated to pay a fair compensation
to the relatives of Mr. Nicholas Chapman Blake and reimburse them for the
expenses incurred in their representations to the Guatemalan authorities in
connection with this process” and in operative paragraph five of the same
judgment it ordered that the reparations stage be opened.
30. In the matter of reparations, the applicable provision of the American
Convention is Article 63(1) which prescribes that:
[i]f the
Court finds that there has been a violation of a right or freedom protected
by this Convention, the Court shall rule that the injured party be ensured
the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the
measure or situation that constituted the breach of such right or freedom
be remedied and that fair compensation be paid to the injured party.
31. Reparations is a generic term that covers the various ways a State
can redress the international responsibility it has incurred (restitutio in integrum, payment of compensation,
satisfaction, guarantees that the violations will not be repeated, among others).
(Loayza Tamayo Case, Reparations (Art. 63(1)
American Convention on Human Rights), Judgment of November 27, 1998, Series
C No. 43, para. 85; Castillo Páez Case,
Reparations (Art. 63(1) American Convention on Human Rights), Judgment
of November 27, 1998, Series C No. 43, para. 48, and Suárez Rosero Case, Reparations
(Art. 63(1) American Convention on Human Rights), Judgment of January
20, 1999, Series C No. 44, para. 41).
32. The obligation to make reparation established by international courts
is governed, as has been universally accepted, by international law in all
its aspects: scope, nature, forms, and determination of beneficiaries, none
of which the respondent State may alter by invoking its domestic law. (Garrido and Baigorria Case, Reparations (Art.
63(1) American Convention on Human Rights), Judgment of August 27, 1998,
Series C No. 39, para. 42; Loayza Tamayo
Case, Reparations, supra 31, para. 86; Castillo Páez Case, Reparations, supra 31, para. 49, and Suárez
Rosero Case, Reparations, supra
31, para. 42)
33. As the Court has stated, Article 63(1) of the American Convention
codifies a rule of customary law which, moreover, is one of the fundamental
principles of current international law on the responsibility of States. (Aloeboetoe et al. Case, Reparations (Art. 63(1)
American Convention on Human Rights), Judgment of September 10, 1993,
Series C No 15, para. 43, and cfr. Factory
at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No
9, p. 21 and Factory at Chorzów, Merits,
Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p 29; Reparations for Injuries Suffered in the Service of the United Nations,
Advisory Opinion, I.C.J. Reports 1949, p. 184)
This is the sense in which this Court has applied that provision. (inter alia, Garrido and Baigorria, Reparations, supra 32, para. 40; Loayza Tamayo,
Reparations, supra 31, para.
84, and Castillo Páez Case, Reparations,
supra 31, para. 50). When a wrongful
act occurs that is imputable to a State, the State incurs international responsibility
for the violation of international law, with the resulting duty to make reparation,
and the duty to put an end to the consequences of the violation.
34. Reparation involves, therefore, measures that are intended to eliminate
the effects of the violation that was committed. Their nature and amount depend on the damage
done both at the material and moral levels.
Reparations are not meant to enrich or impoverish the victim or his
heirs. (cfr. Garrido and Baigorria Case,
Reparations, supra 32 para.
43; Castillo Páez, Reparations, supra 31, para.
53, and del ferrocarril de la bahía
de Delagoa Case, LA FONTAINE, Pasicrisie internationale, Berne, 1902,
p. 406)
VII
35. As regards the beneficiaries of the reparations, in their March
27, 1998 brief, the parents and brothers of Mr. Nicholas Blake asserted that
they had been directly injured by the violations of the fundamental rights
of their son and brother.
36. In this respect, the Commission stated in its brief of the same
day, that the Court has construed the concept of family in a flexible and
broad manner, and that the Court’s jurisprudence coincides with the jurisprudence
of other international organs. For
that reason, it deemed that Richard Blake, Mary Blake, Richard Blake Jr. and
Samuel Blake should be entitled to the reparations in the present case.
37. The State maintains that the relatives of Mr. Nicholas Blake may
not receive reparations in their own right, since the parents and brothers
of the victim have not demonstrated that they had a relationship of dependence
on him.
38. This Court already recognized, in operative paragraphs 1 and 2 of
the January 24, 1998 Judgment, that violations of Articles 8(1) and 5 of the
Convention, in conjunction with Article 1(1), were to the detriment of the
relatives of Nicholas Blake. Therefore,
for the purpose of reparations, the Court determines that these relatives
constitute the injured party within
the meaning of Article 63(1) of the American Convention. The Court determines that Richard Blake, Mary
Blake, Richard Blake Jr., and Samuel Blake may receive reparations in their
own right as the injured party in the present case.
39. The injured party has been represented in the proceedings before
the Inter-American system by attorneys Joanne Hoeper, Margarita Gutiérrez,
A. James Vásquez-Aspiri, and Samuel Miller of San Francisco, California, and
by the attorneys of the “International Human Rights Law Group,” of Washington
D.C., United States of America.
VII
40. To determine the reparations called for in the instant case, the
Court will rely upon the facts established in the Judgment of January 24,
1998. However, in the present stage
of the proceedings the parties have introduced evidence to the file to demonstrate
the existence of additional facts that are relevant to the determination of
the measures of reparations. The Court
has examined the evidence and the arguments of the parties, and declares the
following facts to be proved:
A. concerning
Mr. Nicholas Blake:
a. that he was 27 years old when the acts occurred
that resulted in the present case
(cfr. copy
of the birth certificate of Nicholas Chapman Blake);
b. that he had graduated from the university with
a “Bachelor of Science Degree in History” and worked as an independent journalist.
(cfr. official note from the University of Vermont,
dated November 19, 1998; December 14, 1998 letter from Rodney G. Dogherty;
December 9, 1998 note from Francis B. Coombs Jr.; copies of articles that
Nicholas Blake wrote for The Globe and The Mail, Philadelphia Inquirer Daily
News, Harper’s, The Magazine of the Miami Herald, St. Louis Post Dispatch,
and The Progressive); and
c. that his parents are Richard and Mary Blake
and his brothers are Samuel and Richard Blake Jr.
(cfr. copy
of the birth certificate of Richard Blake Jr., and certified copies of the
passports of Mary Anderson Blake, Richard Randolph Blake, and Samuel Wheaton
Blake).
B. concerning
the injured party:
a. that they incurred a series of expenses in
relation to trips to Guatemala
(cfr. receipts of airline tickets on American Airlines
Inc., Eastern Airlines Inc., Taca International, and Pan Am World Airways,
for trips 11, 15, 17, 19, 20, and 22, the tickets are in the name of Richard
R. Blake Jr., Richard Blake, Douglas Owsley, and John Verson; Hertz Guatemala,
and the March 26, 1998 affidavit of Richard R. Blake Jr.);
b. that they had various expenses for lodging,
food, and telephone calls
(cfr. receipts from the Hotel Camino Real of Guatemala;
La Trattoria, Guatemala; Restaurante Marios, Guatemala, and Restaurante Romanello,
Guatemala, the March 22, 1998 memorandum of Richard and Mary Blake and attached
receipts, and the March 26, 1998 affidavit of Richard R. Blake Jr.);
c. that they incurred various expenses in the
search and discovery of the mortal remains of Nicholas Blake
(cfr. note that consigned the expenses incurred by
Mike Shawcross and receipts; May 19, 1992 contract with Felipe Alva, Military
Commissioner Of Chiantla in the Department of Huehuetenango; October 4, 1990
note from Sue H. Patterson, General Counsel of the Embassy of the United States
of America; airline tickets in the name of Douglas Owsley and John Verson;
the March 22, 1998 memorandum from Richard and Mary Blake, and attached receipts;
and the March 26, 1998 affidavit of Richard R. Blake Jr.); and
d. that those who comprise the injured party have
received medical treatment, and that Samuel Blake continues receiving it.
(cfr. March 26, 1998 statement of Samuel W. Blake;
March 26, 1998 affidavit of Richard R. Blake Jr., and March 24, 1998 statement
by Dr. Malcolm Owen Slavin).
e. that the injured party has been represented
by attorneys Joanne Hoeper, Margarita Gutiérrez, A. James Vásquez-Aspiri,
and Samuel Miller, of San Francisco, California, and by the attorneys of the
“International Human Rights Group,” of Washington D.C., United States of America.
(cfr. May 21, 1997 note from Joanne Hoeper; March
27, 1998 affidavit of Joanne Hoeper, and March 26, 1998 affidavit of Richard
R. Blake Jr);
f.. that the attorneys who represented them have
done so gratuitously or pro bono
(cfr. March 27, 1998 affidavit of Joanne Hoeper,
and March 26, 1998 affidavit of Richard R. Blake Jr.); and
g. that the injured party has incurred a series
of expenses for the preparation and submission of their petition before the
Inter-American system
(cfr. May 21, 1997 note from Joanne Hoeper; March
27, 1998 affidavit of Joanne Hoeper, and March 26, 1998 affidavit of Richard
R. Blake Jr.)
41. As previously stated, for the purpose of a decision on reparations
in the present case, only those proven facts that are relevant within the
legal framework indicated by the Court will be taken into consideration, which
is to say, those that refer to the violation of Articles 5 and 8(1) of the
American Convention in relation to Article 1(1) of the Convention.
IX
42. While the rule of restitutio
in integrum is one form of reparation for an international wrongful act
(cfr. Factory
at Chorzów, Merits, supra 33, p. 48), it is not the only form of reparation.
There may be cases in which restitutio
in integrum is impossible, insufficient, and inadequate. Compensation
is the primary remedy for damages suffered by the injured party, and includes,
as this Court has held previously, both material and moral damages. ( Garrido
and Baigorria Case, Reparations, supra 32, para. 41; Loayza Tamayo Case, Reparations, supra 31, para. 124, and Castillo Páez Case, supra 31, para. 69; cfr Chemin
de fer de la baie de Delagoa, sentence, 29 mars 1900, Martens, Nouveau
Recueil Général de Traités, 2ème Série, t. 30, p. 402; Case of Cape Horn Pigeon, 29 November 1902, Papers relating to the
Foreign Relations of the United States, Washington, D.C.: Government Printing
Office, 1902, Appendix I, p. 470); Traité
de Neuilly, article 179, annexe, paragraphe 4 (interprétation), arrêt
No 3, 1924, P.C.I.J., series A, No. 3, p.9. Maal
Case, 1 June 1903, Reports of International Arbitral Awards, vol. X, pp.
732 and 733, and Campbell Case,
10 June 1931, Reports of International Arbitral Awards, vol. II, p. 1158.)
A) Material Damages
43. The injured party stated that Mr. Nicholas Blake disappeared when
he was 27 years old, a journalist, single, and childless. The injured party requested a minimum of US$1,161,949.00
(one million one hundred sixty-one thousand, nine hundred forty-nine dollars
of the United States of America) or US$1,329,367.00 (one million three hundred
twenty-nine thousand three hundred sixty-seven dollars of the United States
of America), the amount that Nicholas Blake would have earned “if he had continued
to live and work as a journalist [...] until he retired at age 65.”
44. Moreover, the injured party requested the payment of US$299,577.70
(two hundred ninety-nine thousand, five hundred seventy-seven dollars of the
United States of America and seventy cents), as reimbursement for expenses.
However, during the public hearing on reparations, they clarified that
the correct amount is US$289,469.00 (two hundred eighty-nine thousand, four
hundred sixty-nine dollars of the United States of America), an amount with
includes;
a. expenses for the twenty-two trips made by members
of the Blake family to Guatemala and to Central America until they recovered
the mortal remains of Mr. Nicholas Blake in the month of June 1992.
This amount includes expenses for airline tickets, lodging, and meals.
b. other expenses, listed as extraordinary, connected
with the search for Mr. Nicholas Blake, such as the rental of helicopters,
contract with a forensic anthropologist, and payments made to Felipe Alva,
Military Commissioner and leader of the Civil Defense Patrols of the region
of Chiantla, in the Department of Huehuetenango, Guatemala, which amount to
US$8,023.00 (eight thousand, twenty-three dollars of the United States of
America)
c. expenses of approximately US$21,374.58 (twenty-one
thousand, three hundred seventy-four dollars of the United States of America
and fifty-eight cents) for telephone calls to Guatemala City and other places
in that country during the search for Mr. Nicholas Blake. The expenses are broken down in the following
manner: US$19,200.00 (nineteen thousand, two hundred dollars of the United
States of America) in long distance charges to an ATT credit card from 1985
to 1993 and US$2,174.58 (two thousand, one hundred seventy-four dollars of
the United States of America and fifty-eight cents) for other telephone expenses;
and
d. the expenses for the treatment of Samuel Blake,
incurred by the family, which to this date total US$96,470.00 (ninety-six
thousand, four hundred seventy dollars of the United States of America, as
well as US$30,000.00 (thirty thousand dollars of the United States of America)
to cover his future treatment. They
also stated that Samuel Blake received psychiatric treatment and he was prescribed
medications for the acute depression that he suffered, for which they spent
approximately US$12,000.00 (twelve thousand dollars of the United States of
America). Likewise, the family procured
the assistance of specialists to treat the trauma that they suffered as a
result of the death of Mr. Nicholas Blake.
Consequently, they requested the amount of US$138,470.00 (one hundred
thirty-eight thousand, four hundred seventy dollars of the United States of
America) for medical treatment.
To these expenses are added the
expenses related to the proceedings before the Inter-American system, which
will be referred to in the respective chapter (infra 66).
The Court observes that the total
of the amounts listed does not concur with the total amount initially requested
by the injured party in its brief on reparations, nor with the amount indicated
in the public hearing; nevertheless, this mathematical error is irrelevant
to the judgment, for which the Court will separately consider each of the
types of expenses mentioned above.
45. The Commission asserted that Guatemala should make reparation to
the injured party by the payment of adequate compensation for the irreversible
injury they suffered as a consequence of the violation of their rights. It also argued that this compensation should
include material damages resulting as a direct consequence of the facts proved
in chapter VII of the judgment on the merits, and the damages included in
Nicolas Blake’s relatives’ brief on reparations. The Commission referred the Court to the calculations and totals
requested by the representatives of the injured party, as well as to the evidence
that accompanied them.
46. For its part, Guatemala stated that the claims for material injury
can not go forward, because the Court did not declare that there was a violation
of Article 4 of the Convention, and it has not been proved that there are
persons who depended economically on Mr. Nicholas Blake who could have suffered
economic detriment. It added that
the reparation of material injury is the right of the victim and of the dependents,
and that, consequently, it can not be extended to other persons who do not
have the status of victim or dependent, and that neither the parents nor the
brothers of Mr. Nicholas Blake proved a dependent economic relationship to
him.
47. The Court rejects the injured party’s claim that the Court order
the payment of US$1,161,949.00 (one million one hundred sixty-one thousand,
nine hundred forty-nine dollars of the United States of America) or US$1,329,367.00
(one million three hundred twenty-nine thousand, three hundred sixty-seven
dollars of the United States of America), since, as a consequence of the holding
in the judgment on the merits, the amount of reparations in the present case
must be limited to those corresponding to the violation of Articles 5 and
8(1) of the American Convention in relation to Article 1(1) of the Convention
to the detriment of the injured party.
48. The Court has taken into consideration that the injured party made
several trips, principally to Guatemala City, for the purpose of ascertaining
the whereabouts of Mr. Nicholas Blake from the time of his disappearance until
the discovery of his mortal remains, due to the cover up of what occurred
and the Guatemalan authorities’ failure to investigate the facts, and that
this situation gave rise to expenses in the form of airline tickets, lodging,
meals, payments for telephone calls, etc.
49. The Court further considers that these expenses are of an extrajudicial
nature, since, as has been proved, the family of Nicholas Blake did not resort
to the domestic tribunals. For that
reason, the Court holds that it is appropriate to order the State to pay the
reasonable expenses incurred by the injured party from March 9, 1987 (the
date of Guatemala’s acceptance of the contentious jurisdiction of the Court),
which are equitably estimated to be the amount of US$16,000 (sixteen thousand
dollars of the United States of America), taking into account for this purpose
that the judgment on the merits referred solely to the violation of Articles
5 and 8 of the American Convention.
50. As to the request that the Court order Guatemala to pay the amount
of US$138,470.00 (one hundred thirty-eight thousand, four hundred seventy
dollars of the United States of America) for the medical treatment received
and to be received by Samuel Blake, the Court holds that it has been proved
that his ailments occurred due to the situation of the disappearance of his
brother, the uncertainty as to his brother’s whereabouts, the suffering on
learning of his brother’s death, and his frustration and impotence in the
face of the lack of results of the factual investigations by the Guatemalan
public authorities and their later cover up.
For those reasons, this Tribunal determines that it is appropriate
to grant to Samuel Blake, in equity, the amount of US$15,000 (fifteen thousand
dollars of the United States of America) in his capacity as one of the injured
parties.
B. Moral Damages
51. The injured party referred to the “emotional injury” they incurred
due to the disappearance and the death of Mr. Nicholas Blake and the cover
up of those facts. They added that Richard and Samuel Blake dedicated part
of their lives to the search for their brother. They requested, for moral damages to the family, the total sum of
US$500,000.00 (five hundred thousand dollars of the United States of America).
52. The Commission stated that, as to moral damages, the suffering of
the injured party derived, inter alia,
from the circumstances of the forced disappearance of Mr. Nicholas Blake;
the incineration of his mortal remains in order to destroy all traces that
could reveal his whereabouts, and the Guatemalan authorities’ failure to assist
from March 1985 to the present.
53. The State alleges that the amount claimed bears no equitable relationship
to the prevailing conditions in Guatemala and to the context in which the
event occurred.
54. The Court is of the opinion that while its jurisprudence may establish
precedents in this regard, it cannot be invoked as an absolute criterion,
as each case must be examined individually. (Neira
Alegría Case et al., Reparations (Art. 63(1) American Convention on Human
Rights), Judgment of September 19, 1996, Series C. No. 29, para. 55, and
Castillo Páez Case, Reparations, supra 31, para. 83).
55. As for moral damages, the Court has previously held that there are
numerous cases in which other international tribunals have determined that
a judgment of condemnation constitutes adequate reparation per se for moral damages (for an example from the case law of the
European Court of Human Rights; cfr., v.g. arrêt
Ruiz Torija c. Espagne du 9 décembre 1994. Serie A no.303-Ap p. 13, pár.33). Nevertheless, in the grave circumstances of
the present case, it is the view of the Court that it is not sufficient; for
which reason the Court deems it necessary to award compensation for moral
damages. (cfr. in this regard, El Amparo
Case, Reparations, (Art. 63(1) American Convention on Human Rights), Judgment
of September 14, 1996, Series C No. 28, para. 35, and Castillo Páez Case, Reparations, supra
31, para. 84). This same criteria
has been applied by the European Court (Cour
eur. D.H., arrêt Wiesinger du 30 octobre 1991, séries A No. 213, para.
85; Cour eur D.H., arrêt Kemmache c. France (article
50) du 2 novembre 1993, série A No. 270-B, para. 11; Cour eur. D.H., arrêt Mats Jacobsson du 28
juin 1990, série A No. 180-A, párr. 44; Cour
eur. D.H., arrêt Ferraro du 19 février 1991, série A No. 197-A, para..
21).
56. In the present case, the Court itself cited the violation of Article
5 of the Convention in the context of the special gravity of the forced disappearance
of a person, on finding that the circumstances of the forced disappearance
of Mr. Nicholas Blake “generate suffering and anguish, in addition to a sense
of insecurity, frustration and impotence in the face of the public authorities’
failure to investigate.” (Blake Case, Judgment of January 24, 1998, Series C No. 36, para. 114.
)
57. In effect, the forced disappearance of Mr. Nicholas Blake caused
his parents and brothers suffering, intense anguish, and frustration in the
face of the Guatemalan authorities’ failure to investigate and the cover up
of what occurred. The suffering of
the family members, in violation of Article 5 of the Convention, can not be
disassociated from the situation created by the forced disappearance of Mr.
Nicholas Blake that lasted until 1992 when his mortal remains were located.
The Court, in conclusion, holds that the grave moral damage suffered
by the four family members of Mr. Nicholas Blake is completed proved.
58. For the reasons set forth above, the Court considers it equitable
to award US$30,000 (thirty thousand dollars of the United States of America)
to each one of the four family members of Mr. Nicholas Blake.
X