The "Panel Blanca" Case, Judgment of May 25, 2001, Inter-Am Ct. H.R. (Ser. C) No. 76 (2001).
In
the “White Van” case,
the
Inter-American Court of Human Rights, composed of the following judges[1]:
Antônio A. Cançado Trindade, President
Hernán Salgado Pesantes, Judge
Oliver Jackman, Judge
Alirio Abreu Burelli, Judge
Sergio García Ramírez, Judge
Carlos Vicente de Roux Rengifo, Judge and
Edgar E. Larraondo Salguero, Judge ad hoc;
also
present,
Manuel E. Ventura Robles, Secretary, and
Renzo Pomi, Deputy Secretary,
in
accordance with Articles 29, 55 and 56 of the Rules of Procedure of the Inter-American
Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”),
in relation to Article 63(1) of the American Convention on Human Rights (hereinafter
“the Convention” or “the American Convention”) and considering the provisions
of the sixth, seventh and eighth operative paragraphs of the judgment of March
8, 1998, delivers this judgment on reparations.
i
Competence
1. In accordance with the provisions of Articles
62 and 63(1) of the Convention, the Court is competent, to decide on reparations
and costs and expenses in this case, since on May 25, 1978, the Republic of
Guatemala (hereinafter “Guatemala” or “the State”) ratified the American Convention
and on March 9, 1987, it recognized the contentious jurisdiction of the Court.
ii
Background
2. The instant case was submitted to the
Court by the Inter-American Commission on Human Rights (hereinafter “the Commission”
or “the Inter-American Commission”) in an application of January 19, 1995,
accompanied by Report No. 23/94 of September 28, 1994. It originated from
petition No. 10,154 against Guatemala, received by the Secretariat of the
Commission on February 10, 1988.
3. On March 8, 1998, the Court delivered
the judgment on merits in the case, in which it, unanimously:
1. Rule[d] that the State of Guatemala violated Article 7
of the American Convention on Human Rights in relation to its Article 1(1)
to the detriment of Anna Elizabeth Paniagua Morales, Julián Salomón Gómez
Ayala, William Otilio González Rivera, Pablo Corado Barrientos, Manuel de
Jesús González López, Augusto Angárita Ramírez, Doris Torres Gil and Marco
Antonio Montes Letona.
...
2. Rule[d] that the State of Guatemala violated Article 4(1)
of the American Convention on Human Rights, in relation to its Article 1(1)
to the detriment of Anna Elizabeth Paniagua Morales, Julián Salomón Gómez
Ayala, William Otilio González Rivera, Pablo Corado Barrientos and Manuel
de Jesús González López.
...
3. Rule[d] that the State of Guatemala violated Article 5(1)
and 5(2) of the American Convention on Human Rights, in relation to its Article
1(1), and Articles 1, 6 and 8 of the Inter-American Convention to Prevent
and Punish Torture, to the detriment of Anna Elizabeth Paniagua Morales, Julián
Salomón Gómez Ayala, William Otilio González Rivera, Pablo Corado Barrientos,
Manuel de Jesús González López, Augusto Angárita Ramírez and Oscar Vásquez.
...
4. Rule[d] that the State of Guatemala violated Article 8(1)
of the American Convention on Human Rights, in relation to its Article 1(1)
to the detriment of Anna Elizabeth Paniagua Morales, Julián Salomón Gómez
Ayala, William Otilio González Rivera, Pablo Corado Barrientos, Manuel de
Jesús González López and Erick Leonardo Chinchilla.
...
5. Rule[d] that the State of Guatemala violated Article 25
of the American Convention on Human Rights, in relation to its Article 1(1)
to the detriment of Anna Elizabeth Paniagua Morales, Julián Salomón Gómez
Ayala, William Otilio González Rivera, Pablo Corado Barrientos and Manuel
de Jesús González López.
...
6. Rule[d] that the State of Guatemala must conduct a genuine
and effective investigation to determine the persons responsible for the human
rights violations referred to in this judgment and, where appropriate, punish
them.
...
7. Rule[d] that the State of Guatemala [was] obliged to make
reparation for the consequences of the declared violations and pay fair compensation
to the victims and, where appropriate, to their next of kin.
...
8. Order[ed] the initiation of the reparations phase and entrust[ed]
the pertinent actions to its President.
iii
Proceedings
at the reparations stage
4. On May 21, 1998, the President of the
Court (hereinafter “the President”) decided:
1. To grant the Inter-American Commission on Human Rights
until July 21, 1998, to submit a brief and any evidence it has for determining
the reparations in this case.
2. To grant the victims and, when appropriate, their next
of kin, until July 21, 1998, to submit a brief and any evidence they have
for determining the reparations in this case.
3. To grant the State of Guatemala two calendar months to
submit a brief and any evidence it has for determining the reparations in
this case. This period {will] begin
on the day that the State receives the briefs of the Inter-American Commission
on Human Rights and of the victims or, when appropriate, their next of kin.
5. On May 25, 1998, the Secretariat of the
Court (hereinafter “the Secretariat”) requested the organizations indicated
as petitioners in the application in this case, pursuant to the provisions
of Article 23 of the Rules of Procedure of the Court (hereinafter “the Rules
of Procedure”), to submit the powers of attorney authorizing them to represent
the victims or the victims’ next of kin, and also a single address where the
communications of the Court should be notified. On August 21, 1998, the Secretariat
reiterated this request to the representatives of the victims or the victims’
next of kin. On September 8, 1998,
the Center for Justice and International Law (CEJIL) and Human Rights Watch/Americas
informed the Court that they would not represent any of the victims in this
case during the reparations stage.
6. On July 16, 1998, German Giovanni Paniagua
Morales, brother of Anna Elizabeth Paniagua Morales, sent a letter in which
he requested information on the case. On
July 20, 1998, on the instructions of the President, the Secretariat informed
him that the reparations stage of the case was pending before the Court and
notified him of the order to open this stage issued by the President (supra
4/infra 9), and also the letter addressed to the legal representatives
of the petitioners on May 25, 1998.
7. On July 17, 1998, the Commission advised
that it would be making a visit in loco
to Guatemala from August 6 to 11, 1998, at which time it would try to re-establish
contact with several of the victims’ next of kin in the case sub judice. Owing to the foregoing, it requested the Court to extend the period
for submitting its observations on reparations.
8. On July 20, 1998, Mark Martel, the representative
of the next of kin of Oscar Vásquez, Anna Elizabeth Paniagua Morales and Manuel
de Jesús González López, indicated that he was awaiting information on the
claims for compensation of the Vásquez and Paniagua Morales families in order
to forward a brief on reparations and therefore requested a one-month extension
for the submission of this document.
9. On July 20, 1998, the President decided:
1. To extend until August 31, 1998, the period for the Inter-American
Commission on Human Rights to submit a brief and any evidence it had for determining
the reparations in this case.
2. To extend until August 31, 1998, the period for the victims
and, when appropriate, their next of kin to submit a brief and any evidence
they had for determining the reparations.
3. To grant the State of Guatemala two calendar months to
submit a brief and any evidence it had for determining the reparations in
this case. This period [would] begin
on the day that the State receive[d] the briefs of the Inter-American Commission
on Human Rights and of the victims or, when appropriate, the victims’ next
of kin.
10. On August 27, 1998, German Giovanni Paniagua
Morales submitted a brief in which he referred to the effects that the facts
of this case had had on him personally.
11. On August 31, 1998, the Commission submitted
its observations on reparations, and also the evidence corresponding to this
case.
12. On September 1, 1998, Mark Martel submitted
his arguments on reparations and the respective evidence, on behalf of the
persons he represented (supra 8).
On September 24, 1998, Mr. Martel forwarded some corrections to the said brief.
13. On October 23, 1998, having observed that
several of the victims or, when applicable, their next of kin had not appeared
directly before the Court in this stage of the proceeding and in order to
ensure the effet util of Article
23 of the Rules of Procedure of the Court and the effective protection of
the interests of the victims, the President decided:
1. To call on the Inter-American Commission on Human Rights
and the petitioners, including CEJIL, Human Rights Watch/Americas and Mark
Martel, to submit all the information they had to ensure the location of Julián
Salomón Gómez Ayala, William Otilio González Rivera, Pablo Corado Barrientos,
Augusto Angárita Ramírez, Doris Torres Gil, Marco Antonio Montes Letona and
Erick Leonardo Chinchilla or, when appropriate, their next of kin. Should they not have recent information, [the]
President called on the Commission, CEJIL, Human Rights Watch/Americas and
Mr. Martel to do their best to obtain it and submit it to the Secretariat
of the Court within a period of 30 days, calculated as of the notification
of [the] order.
2. To call on the State to broadcast on one radio station
and on one television channel and publish in one newspaper, all with national
coverage, [an] announcement [relating to the location of some of the victims
or, when appropriate, their next of kin,] within 30 days of notification of
[the] order and, in each case, for at least three non-consecutive days. The recordings or, when applicable, copies
of these announcements, together with the precise indication of the media
and dates on which they were made, [should] be submitted to the Secretariat
of the Court by December 15, 1998, at the latest, to be added to the file.
3. To instruct the Secretariat of the Inter-American Court
of Human Rights that, as soon as it receive[d] the addresses and information
on the location of the victims or their next of kin in this case, it notify
them of the judgment on merits and any other information necessary to comply
with Articles 23 and 57 of the Rules of Procedure of the Court.
14. On November 16, 1998, Guatemala requested
an extension of 30 days in order to comply with the orders of the President
(supra 13). In this respect, on November 23, 1998, the President granted until
January 15, 1999, for the State to submit the required documents and information.
15. On November 25, 1998, the Commission informed
the Court that it had been able to communicate with the next of kin of the
victims, Julián Salomón Gómez Ayala, William Otilio González Rivera and Pablo
Corado Barrientos, and forwarded the corresponding information on their location.
16. On December 8, 1998, María Luisa Chinchilla
Ruano, mother of Erick Leonardo Chinchilla, informed the Secretariat by telephone
of her address and telephone number. The following day, Elizabeth Gómez Ayala, sister of Julián Salomón
Gómez Ayala, also advised by telephone, her telephone number and that of the
victim’s mother, Blanca Esperanza Ayala de la Cruz.
17. On December 9, 1998, the Secretariat notified
the judgment of March 8, 1998, to the next of kin of Julián Salomón Gómez
Ayala, William Otilio González Rivera, Pablo Corado Barrientos and Erick Leonardo
Chinchilla and gave them a brief explanation of the proceeding corresponding
to the reparations stage. It also
sent them other pertinent documents and informed them that “[t]he period for
the victims or their next of kin to submit their briefs [would] be established
by the President [...] in due course” (infra 20).
18. On December 16, 1998, the State provided
information on the publication of the announcements in the press and the broadcast
by television and radio, executed in compliance with the order of the President
(supra 13). On January 7, 1999, it also forwarded publications
in newspapers, an audiotape and a videotape containing these announcements.
19. On December 23, 1998, German Giovanni Paniagua
Morales submitted his brief on reparations.
20. On January 29, 1999, the President ordered:
1. To grant the victims or, when appropriate, their next of
kin until March 27, 1999, to submit a brief and any evidence they ha[d] for
determining the compensations and expenses.
In the case of those victims or next of kin who ha[d] already submitted
their briefs to the Court, it w[ould] not be necessary for them to retransmit
them, and those submitted would be considered valid.
2. To instruct the Secretariat of the Court to transmit all
the briefs received to the Inter-American Commission on Human Rights, once
the period mentioned in the previous paragraph ha[d] expired.
3. To grant the Inter-American Commission on Human Rights
one month, calculated from the date on which it receives the briefs mentioned
in the second operative paragraph of the [said] order, to submit any additional
comments that it considers pertinent with regard to reparations.
4. To instruct the Secretariat of the Court to transmit all
the brief that had been submitted to the State of Guatemala, once the period
referred to in the previous operative paragraph ha[d] expired.
5. To grant the State of Guatemala two months, calculated
from the date on which it receive[d] the briefs referred to in the previous
operative paragraph, to submit its comments and any evidence it has for determining
the reparations in this case.
21. On February 3, 1999, the Court requested
Mark Martel to send the powers of attorney which were granted to him by the
next of kin of Oscar Vásquez, Anna Elizabeth Paniagua Morales and Manuel de
Jesús González López and, to this end, granted him until March 27, 1999. On the following March 26, Mr. Martel sent
the powers requested.
22. On March 18, 1999, in the name of several
of the victims’ next of kin, the Commission requested an extension until the
following April 30 for the submission of the briefs on reparations. Since the parties raised no objections, the
President decided to grant the requested extension on March 26, 1999.
23. On March 23, 1999, Salvador González Najarro,
father of William Otilio González Rivera, submitted his brief on reparations
and the corresponding evidence.
24. On March 26, 1999, María Luisa Chinchilla
Ruano, mother of Erick Leonardo Chinchilla, advised that the Coordinadora Jurídica Popular (hereinafter
“COJUPO”), through the lawyer, Antonio René Argueta Beltrán, would be responsible
for providing her with legal assistance during the reparations stage.
25. On April 26 and 28, 1999, Blanca Esperanza
Ayala de la Cruz and Bertha Violeta Flores Gómez, respectively mother and
companion of Julián Salomón Gómez Ayala, submitted their arguments and evidence
on reparations.
26. On April 30, 1999, María Luisa Chinchilla
Ruano, mother of Erick Leonardo Chinchilla, transmitted her brief and evidence
on reparations.
27. The same day and on the following May 28,
the Commission, in the name of the Corado Barrientos family requested extensions
of 10 and 15 days, respectively, for the submission of its arguments on reparations.
These extensions were granted until June 14, 1999.
28. On June 3, 1999, Juana Barrientos Valenzuela
and Tino Corado Barrientos, mother and brother of Pablo Corado Barrientos,
informed that, for future communications, they would receive legal assistance
from COJUPO, through the Director of this institution, Antonio René Argueta
Beltrán, and indicated the corresponding mailing address. On the following
June 11, they presented their reparations brief. Finally, on June 23, 1999,
the evidence that accompanied this brief was received.
29. On July 16, 1999, the Commission requested
a 14-day extension to submit its comments on reparations, “in order to obtain
the necessary additional information and consult those affected in this regard.”
The President granted this extension until the following August 2.
That day, the Commission remitted the supplemetary brief with comments and
also the corresponding evidence.
30. On September 28, 1999, the State requested
the Court to grant “a period similar to that granted to the Inter-American
Commission and the victims or their next of kin to submit its comments and
the evidence for determining the reparations.” Taking into account the complexity of the matters
being examined and considering that it was “impossible to grant the State
an extension of the length requested”, the President decided to grant the
State until January 2, 2000.
31. On October 14, 1999, the President of the
organization, Rights International, submitted a brief as an amicus curiae.
32. On December 27, 1999, the State requested
a further extension for submitting its comments on the briefs and the evidence
on reparations. On January 5, 2000,
the President granted this extension until May 2, 2000.
33. On February 25, 2000, the Secretariat requested
the Commission and the next of kin of Pablo Corado Barrientos and Erick Leonardo
Chinchilla to submit the list of the witnesses and experts who would give
testimony at the public hearing on reparations. On May 24 that year, the Commission submitted
a list with some of the names of the experts and witnesses that it proposed
for the public hearing. This list
was completed on the following June 12. On
June 19, 2000, the President made some comments to the Commission and, in
particular, that it had been verified that the Commission had included the
name of a witness who had not been proposed in its brief on reparations.
Consequently, he granted until the following June 26 for the victims
or their next of kin and the State to forward their respective comments.
Neither the victims nor, when appropriate, their next of kin, nor the
State remitted any comment during this period.
On June 27, 2000, the Commission sent a communication in which it emphasized
that the witness who had been proposed for the first time in the list of witnesses
and experts would not appear and, in her place, one of the persons included
in the brief on reparations would testify. It also advised that two of the experts proposed
could not attend the hearing and that it was seeking a replacement. On June
30, 2000, the Commission forwarded the names of the experts and their respective
curricula vitae. On July 3, 2000, copies of the documents remitted
by the Commission were forwarded to the parties and the State was given until
the following July 5 to submit its observations. No document was remitted before the deadline
had expired.
34. On March 8, 2000, the President informed
the parties that a public hearing on reparations had been programmed for June
that year. On April 7, 2000, the President
informed the parties that, due to budget cuts ordered by the Committee on
Administrative and Budgetary Affairs of the Organization of American State,
“the Court [was] obliged to suspend [the forty-eighth] regular session.”
35. On April 7, August 7 and November 13, 2000,
the State appointed as agent in substitution of the acting agent, José Briz
Gutiérrez, Enrique D. Barascout and Jorge Mario García Laguardia, respectively.
36. On April 28, 2000, Guatemala requested a
further extension to submit its brief on reparations. Considering the Court’s program of work, the President granted the
State until June 9 that year.
37. On June 9, 2000, the State remitted its
brief with comments on the reparations requested. The original and the annexes to this brief were received by the
Secretariat on June 13, 2000.
38. On July 5, 2000, the President summoned
the victims or, when appropriate, their next of kin or representatives, the
Commission and the State to a public hearing on reparations to be held as
of August 11, 2000, at the seat of the Court.
39. On July 10, 2000, the Commission requested
the Court to expand the list of persons summoned to the pubic hearing on reparations
in order to include Blanca Esperanza Ayala de la Cruz who, despite having
been duly proposed in the brief on reparations, had not been included on the
list of witnesses and experts (supra 33), owing to circumstances beyond its control. On July 12, 2000, the President granted the
State time to submit its comments. When
the State’s comments had not been received by July 20 that year, the President
decided to summon Mrs. Ayala de la Cruz to appear and give testimony at the
respective public hearing.
40. On July 24, 2000, German Giovanni Paniagua
Morales submitted comments on the State’s brief of June 9, 2000.
41. On August 11 and 12, 2000, the Court received
the statements of the witnesses and experts proposed by the Commission at
a public hearing.
There
appeared before the Court:
For
the victims’ next of kin:
Mark Martel, lawyer
Avilio Carrillo Martínez, lawyer and
Antonio René Argueta Beltrán, lawyer
for
the Inter-American Commission:
Claudio Grossman, delegate, and
Elizabeth Abi-Mershed, lawyer
for
the State of Guatemala:
Enrique D. Barascout, agent
Osvaldo Enríquez, advisor
Cruz Munguía Sosa, advisor, and
Ricardo Efraín Alvarado Ortigoza, advisor
Witnesses
proposed by the Commission:
Salvador González Najarro
Blanca Esperanza Ayala de la Cruz
Ingrid Elizabeth Gómez Ayala
Tino Corado Barrientos
Miriam Enoé Zelada Chinchilla
María Ildefonsa Morales de Paniagua
María Elizabeth Chinchilla de González, and
Manuel Alberto González Chinchilla.
Experts
proposed by the Commission:
Robin Eric Hahnel; and
Graciela Marisa Guilis.
Despite
having been summonsed by the Court, Alberto Antonio Paniagua Morales did not
appear to testify.
42. On February 22, 2001, on the instructions
of the Court and in accordance with Article 44 of its Rules of Procedure,
the Secretariat requested some of the victims’ next of kin and the State to
forward evidence that would be helpful. On
March 21 and April 2, 2001, the lawyers, Avilio Carrillo Martínez and René
Argueta Beltrán, respectively, transmitted the documentation requested (infra
62 and 64). On March 23 and 30, 2001,
the lawyer, Mark Martel, forwarded part of the documentation requested (infra 63). Finally, the State submitted
part of the information requested on March 16 and 30 and April 6, 2001 (infra 61). On April 17, 2001, the Secretariat
remitted the documentation obtained as helpful evidence to the parties.
iv
Provisional
measures
43. On January 26, 2001, the Inter-American
Commission informed the Court about an attack on the minor, Manuel Alberto
González Chinchilla, perpetrated by unknown persons in December 2000, as a
result of which “he was hit by two bullets and was [transferred] to a hospital
where he received medical treatment.” The
minor, González Chinchilla, is the son of the victim, Manuel de Jesús González
López, and appeared to testify at the public hearing on reparations held at
the seat of the Court on August 11 and 12, 2000 (supra 41).
44. By an order of January 29, 2001, the Court
decided:
1. To call on the State of Guatemala to adopt any necessary
measure to protect the life and physical integrity of Manuel Alberto González
Chinchilla.
2. To call on the State of Guatemala to investigate the facts
indicated and provide information on the situation of the said person, and
also about the measures adopted in compliance with the [said] order, by February
8, 2001, at the latest.
3. To call on the State of Guatemala to submit reports on
the provisional measures in the instant case every two months, as of the date
of notification of the [said] order, and on the Inter-American Commission
on Human Rights to submit its comments on these reports within six weeks of
receiving them.
45. On February 28, 2001, the State sent the
Court the report requested (supra
44.2). In this document, the State
declared that it had communicated to the minor, González Chinchilla, and to
his representative that the State was willing to provide the necessary protection
to safeguard his security and protect his life and physical integrity.
46. At the time this judgment was delivered,
the State had not submitted its first report in compliance with the third
operative paragraph of the order of the Court of January 29, 2001 (supra 44.3). These provisional measures will be maintained while it is shown
that the circumstances of extreme gravity and urgency that justified their
adoption persist.
v
Evidence relating
to reparations
47. Before examining the evidence received,
the Court will define the general criteria for evaluating the evidence and
will make some observations that are applicable to this specific case, most
of which have been developed previously by the jurisprudence of the Court.
48. Article 43 of the Rules of Procedure establishes
that:
Items
of evidence tendered by the parties shall be admissible only if previous notification
thereof is contained in the application and in the reply thereto [...].
Should any of the parties allege force
majeure, serious impediment or the emergence of supervening events as
grounds for producing an item of evidence, the Court may, in that particular
instance, admit such evidence at a time other than those indicated above,
provided that the opposing parties are guaranteed the right of defense.
49. Article 44 of the Rules of Procedure indicates
that, at any stage of the proceeding, the Court may:
1. Obtain, on is own motion, any evidence it considers helpful.
In particular, it may hear as a witness, expert witness, or in any other capacity,
any person whose evidence, statement or opinion it deems to be relevant.
2. Request the parties to provide any evidence within their
reach or any explanation or statement that, in its opinion, may be useful.
3. Request any entity, office, organ or authority of its choice
to obtain information, express an opinion, or deliver a report or pronouncement
on any given point. The documents
may not be published without the authorization of the Court.
[...]
50. According to the consistent practice of the Court, during the reparations stage,
the parties must indicate the evidence that they will offer at the first occasion
granted to them to make a written statement. Moreover, the exercise of the Court’s discretional powers, stipulated
in Article 44 of its Rules of Procedure, allows it to request the parties
to provide additional elements of evidence to help it make a more informed
decision; however, this does not grant the parties another opportunity to
expand or complete their arguments or offer new evidence on reparations, unless
the Court so allows.
51. The Court has indicated previously that
the proceedings before it are not subject to the same formalities as domestic
proceedings and that, when incorporating determined elements into the body
of evidence, particular attention must be paid to the circumstances of the
specific case and to the limits imposed by respect for legal certainty and
the equality of the parties[2]. International
jurisprudence has upheld the power of the courts to evaluate the evidence
within the limits of sound judicial discretion[3]; and has always avoided making a rigid determination
of the amount of evidence required to support a judgment[4].
52. This
practice extends to the briefs in which the representatives of the victims
or, when appropriate, their next of kin, and the Inter-American Commission
formulate their claims for reparations and to the State’s answering brief,
which are the principal documents at this stage and, in general, entail the
same formalities with regard to the submission of evidence as the application[5]. On this
basis, the Court will proceed to examine and evaluate all the elements that
make up the body of evidence in this case, according to the rule of sound
judicial discretion, within the legal framework of the case sub judice.
a) DOCUMENTARY EVIDENCE
53. The next of kin of Anna Elizabeth Paniagua
submitted one document[6] with a brief of August 27, 1998.
54. The lawyer, Mark Martel, representing the
next of kin of Mr. Vásquez, Mrs. Paniagua Morales and Mr. González López,
submitted nine annexes[7], with the brief of September 1, 1998.
55. The next of kin of William Otilio González
Rivera attached a document to their brief of March 23, 1999[8].
56. The next of kin of Julián Salomón Gómez
Ayala remitted 11 annexes[9] with notes dated April 28, 1999.
57. The next of kin of Erick Leonardo Chinchilla
attached a document[10] to a brief of April 30, 1999.
58. The Corado Barrientos family forwarded four
annexes[11] with communications of June 3 and 23, 1999.
59. With its comments on reparations of August
31, 1998, and August 2, 1999, the Commission submitted five documents[12].
60. The State included 13 annexes, with 25 documents[13] with its brief of June 13, 2000, offering comments
on the reparations requested.
*
*
*
61. In compliance with the Court’s request of
February 22, 2001 (supra 42), the State submitted 16 documents
as helpful evidence on March 16 and 30 and April 6, 2001[14].
62. On March 21, 2001, the next of kin of William
Otilio González Rivera, represented by the lawyer, Avilio Carrillo Martínez,
transmitted five documents[15], in compliance with the Court’s request of February
22, 2001 (supra 42).
63. On March 23 and 30, 2001, the lawyer, Mark
Martel, representing the next of kin of Mr. Vásquez, Mrs. Paniagua Morales
and Mr. González López, submitted 12 documents as helpful evidence[16].
64. On April 2, 2001, the lawyer, René Argueta
Beltrán, representing the next of kin of the Corado Barrientos family and
the next of kin of Erick Leonardo Chinchilla, submitted seven documents as
helpful evidence[17], in compliance with the Court’s request of February
22, 2001.
*
*
*
b) TESTIMONIAL EVIDENCE
65. At the public hearing on August 11 and 12,
2000, the Court received the statements of the witnesses and experts offered
by the Inter-American Commission. They
are summarized below in the order in which they were presented:
a) Testimony
of Salvador González Najarro, father of William Otilio González Rivera
He
is married to María Rivera Velázquez, with whom he has had five children,
including the victim. He lives in
the village of Jocote, Department
of Jutiapa, Guatemala.
His
son acquired a sales kiosk in the bus terminal in Zone 4, Guatemala City,
for Q5,000.00 (five thousand quetzales); this business generated a profit
of about Q500.00 (five hundred quetzales) a month.
However, as a result of his abduction and subsequent disappearance,
all the existing merchandise, which was valued at Q5,000.00 (five thousand
quetzales), was lost, together with the right to use the business premises.
The
relationship between father and son and the whole family was “very extensive,
respectful and considerate.” The victim
lived in Guatemala City and visited his family once every two weeks, and he
brought them some of the Q500.00 (five hundred quetzales) that he earned to
help them pay for their needs.
He
realized that his son was dead on February 10, 1988, when he went to visit
him. The following day, he found out that some bodies
had appeared. The identification of
his dead son caused him great sadness, because “it is distressing […] to see
so much cruelty” and it caused “tremendous grief to [him] and all [his] family.”
He
had to pay the expenses corresponding to the transfer of his son’s body to
his community, the wake and burial of his son, all of which cost about Q5,000.00
(five thousand quetzales).
Since
his son’s death, he has suffered many illnesses and the memories cause him
resentment, sadness and pain. His
wife’s life “has deteriorated and will never be the same again.” She suffers
from heart ailments and, owing to the lack of financial resources, cannot
be supervised by a doctor. This is
very painful for the family “because they are all suffering.” His son would
have been “the head of the family, because once [the witness] was no longer
there, he would have had to guide his siblings,” and this possibility no longer
exists.
He
recognizes that although no financial resource will bring his son back to
life, an indemnity “will help to provide some relief for what has happened
to [him].”
He
did not resort to the State institutions, because of his illness and his fear
due to threats he had received.
b) Testimony
of Blanca Esperanza Ayala de la Cruz, mother of Julián Salomón Gómez Ayala
She
is married to Petronilo Gómez Chávez, has seven children and lives in Samayach,
Guatemala.
The
victim had completed sixth year and his obligatory military service and he
worked as a mechanic. He had a companion
named Bertha Violeta Flores Gómez and a son called Julio Salomón Gómez Flores
and they lived in Guatemala City. The victim had an affectionate relationship
with his other siblings and the household was very close. He visited the family every month or two and provided them with
financial support of Q1,200.00 (one thousand two hundred quetzales) when he
was able.
When
she found out that her son had been abducted, they looked for him unsuccessfully
for about 16 days, without any help from the judicial authorities; the day
after they suspended the search, she head on the radio that her son was dead
and that he had been buried in a cemetery.
They were able to exhume him in order to bury him in Samayach. They could hold a funeral, owing to the help
of a neighbor who loaned them Q7,000.00 (seven thousand quetzales), because
the family did not have enough money.
The
victim’s companion began to work to support herself and her son, so that he
could study. She and her son went
to live with the witness so that she did not have to pay rent and the witness
helped her financially. The victim’s
son was three years of age when he died and continues to ask about his father
and why he was assassinated. His life
would have been different if his father had lived with him.
The
most difficult aspect is “the sadness [because] the other children do not
fill this empty space.” Her husband has been ill since the death of his son,
because he has had no peace and because the victim was the oldest son; he
is receiving medical treatment. Moreover,
he has not accepted fully that his son is dead.
When anyone speaks of his son he becomes sad and cries.
She
has not been summoned to testify before a Guatemalan court and has not received
any financial assistance from the State.
She was afraid for her safety as a result of these events, but now
she is tranquil to be before the Court and wants “something to be done so
that the same does not happened to others; otherwise, unjust acts will continue.”
c) Testimony
of Ingrid Elizabeth Gómez Ayala, sister of Julián Salomón Gómez Ayala
She
lives in Samayach, Guatemala.
Her
brother was a very good, friendly and honest person and she needed his advice
because he was studying and helped her a great deal.
She saw him about once a month.
When
she and her siblings found out that her brother had been assassinated it was
“horrible [and] painful.” Neither she nor her siblings accompanied their parents
in the procedures they had to undertake in the capital. It is something “that
will remain with [them ....] always.” Before her brother’s death, the family
was very close but, afterwards, it was not the same “owing to his memory,
we missed him” and because their parents became ill and are still ill today.
She
and her siblings try to console their mother a little, but they cannot take
the victim’s place in the family. When
her father remembers him he feels “downhearted, sad.” All the family visits the cemetery, with the exception of her mother
because it is very difficult for her and “because it hurts her very much.”
She has two siblings who have been unable to speak since birth and they express
their feelings in signs. She and her
siblings have a close relationship and the family supports each other financially.
The victim’s son “misses [his father] in every way.”
She
would feel a little more tranquil to know that those responsible had been
convicted “so that other families do not suffer what [they are] suffering.” She is concerned about her family and herself,
but she feels calmer appearing before the Court because she knows that, after
so many years, justice is now being done. Compensation from the State for
the death of the victim does not console her as the only consolation would
be “if he was there.”
d) Testimony
of Tino Corado Barrientos, brother of Pablo Corado Barrientos
He
lives in Guatemala and has a sister named Francisca Corado Barrientos. His
father, Marco Antonio Corado Morales, died seven years before the death of
his brother, and his mother’s name is Juana Barrientos Valenzuela.
The
victim worked in the capital, and had a kiosk where he sold bananas and plantains
in the bus terminal; he earned about Q500.00 (five hundred quetzales). Every
two weeks he visited his family and, every month, he helped them financially. His brother also gave him financial help to
buy his school materials, and owing to this, he was able to go to school. He was able to complete sixth year of primary
school, but then had to do his military service.
His
brother was a hardworking, unassuming person who worked in the agricultural
sector. He was very good to his mother
and had no vices. The witness was
11 years of age when his brother died and was in third year of primary school
and also worked in the agricultural sector.
His sister did not live with them because she was married and it was
the victim who supported the household.
They
found out about his death through a friend of the victim who brought the information
that appeared in the newspapers. That
day he was in school and when he arrived home, he found his mother “very sad,
grieving.” When she told him what
had happened to his brother and that the latter would never return, he felt
sad and began to cry. They had a wake
without the body of his brother, because to date no one knows where it is
buried. They did not start any procedure or action
to investigate as they did not have the necessary financial resources.
Following
his brother’s death, his mother and he remained in the same house. He continued to work and study and his mother
had to work as a maid to maintain the home and support him while he completed
his schooling. There was no one else
to help. He now works to support his
mother.
His
brother’s assassination has affected him considerably. He heard from the news
or from the conversations of neighbors that his brother died tortured by agents
of the State. He asks the State to
see that justice is done and that those responsible are identified.
He
feels “a little nervous and sad”, appearing before the Court, because he is
being reminded of something that happened a long time ago and because justice
has not been done.
e) Testimony
of Miriam Enoé Zelada Chinchilla, sister of Erick Leonardo Chinchilla
She
lives in Guatemala City and works in a pharmaceutical company.
They
were a very close family. At the time of Erick Leonardo’s death, she, three
siblings – Sandra del Carmen, Hugo Alejandro and Ingrid Aracely – and the
victim lived in the house of her mother, María Luisa Chinchilla Ruano. Erick was the fifth child, the youngest, and
within the family, they helped him and guided him “so that he would grow up
and obtain better jobs than [they] had.”
The
victim went to school, but as his mother was left alone, he only finished
basic primary education and, at 15 years of age, he started to work in her
bakery. The family received approximately
Q1,000.00 (one thousand quetzales) a month for the work they did in the business.
From the moment her brother was no longer there, the business declined,
because her mother lost her will to work and, due to her diabetes – resulting
from the death of her son – she could not continue working.
They
heard about what had happened through a police agent, and it was the witness,
with another brother, who identified the body.
Her mother fainted on receiving the news and then she became ill. Subsequently, no authority came to investigate
the fact. When they wanted to file
a claim they received telephone threats, telling them that if they continued
to try and find out about the death of the victim, there would be reprisals
against the family. Furthermore, the
house was shot at on two occasions and they were told that it was a warning
and that they could be killed, so they did not continue the investigation
because they were afraid.
Her
mother has to have medical treatment due to her diabetes and the medicines
cost Q1,500.00 (one thousand five hundred quetzales) a month. Her mother visits her brother in the cemetery
every day and sits by his grave talking to him for an hour.
She
and her other siblings cannot fill the vacuum that her mother feels. Her mother continues to cry every day, does
not want to continue to take her medicines and, recently, had two small heart
attacks. She and her siblings have
tried to make her think of other things, but for her mother “there can be
no distraction, [...] she just asks
to be taken to the cemetery.”
When
they discuss the cause of his death and her brother’s assassins, her mother
wants to know why they did it, when the victim did not have any enemies or
any vices and worked in the bakery. He
also liked mechanics and repaired cars. She
heard that the persons responsible for his death were agents of the State,
when she filed the claim with the police.
The
family is still afraid that the authorities will take reprisals for their
testifying before the Inter-American Court and “wanting to know the truth
in order to recover the honor” of their family member.
Her presence before the Court signifies at least “satisfying [her]
mother, that [her] brother was not a drug-trafficker, drug addict or whatever
people say.” Reparation cannot mitigate
the pain, because her brother’s life “is priceless” and “it would not take
away this illness that [her] mother has.”
f) Testimony
of María Ildefonsa Morales de Paniagua, mother of Anna Elizabeth Paniagua
Morales
She
lives in Toronto, Canada.
At
the time of Anna Elizabeth’s death, the witness, her husband, her other children
- German Giovanni and Carolina – her daughter-in-law, Blanca de Paniagua,
her four grandchildren, the victim and her daughter, María Elisa, aged four
at the time, lived in the house of one of her sons, Alberto Antonio.
Her
daughter was 23 years of age when she died and had been married, but at the
date of the facts, her husband was already dead.
Her
daughter had obtained a diploma as an expert accountant from the Carlos Federico
Mora School. Although she did not attend the Universidad de San Carlos, she
had competed in athletic events for the institution, as a runner. She
worked even on Saturdays and Sundays and was going to begin a new job just
before she died. The victim was also
studying to obtain her license as an auditor and thus help to support her
family with her earnings.
The
witness and her daughter had a good relationship.
The latter “was very obedient, she helped [the witness] with expenses,
[...] she obeyed her father” and she got on well with her siblings. When she heard about the abduction, she was
furious and, as result, became ill. They
looked for her daughter and, days later, they heard on the television that
an unidentified body had been found and she felt that it was her daughter. She examined her daughter’s body and saw that
it had suffered “a terrible death.” She
feels sad remembering that image of her daughter, because of the torture that
was inflicted on her.
Her
family left Guatemala because they felt threatened.
Since then, the witness lives in Toronto, Canada, with her husband. Some of her children live in Toronto; another
daughter lives in British Columbia and two children live in New York. The victim’s daughter stayed in Guatemala with
her paternal grandmother. She is a
sad girl of 17 years of age, who does not say much. When her daughter died, her granddaughter had failing grades at
school for several years because “she misses her mother’s love.” Although
the witness keeps in contact with her granddaughter, she would like her to
live with her family.
Her
relationship with her husband changed after the victim’s death.
She
had a stroke and she developed diabetes.
She was ill due to the sadness and now she is getting a little better,
but she cries when she remembers the victim.
Owing to the stroke, she has to use a wheelchair and walks very little.
On her daughter’s birthday, they take flowers to her grave or they
say a mass for her. She visits her grave each time she travels
to Guatemala.
g) Testimony of María Elizabeth Chinchilla
de González, widow of Manuel de Jesús González López
She
has lived in Los Angeles, United States, since 1988.
Before
the facts of this case, she lived with her husband and three children in a
house in Guatemala City, which they were paying for.
Her husband had a very good relationship with his children and was
very affectionate; he also played and engaged in sporting activities with
them. He worked as a mechanic and, before he died,
he had been promoted to chief mechanic in a company that sold cars, where
he earned approximately Q800.00 (eight hundred quetzales) a month. At the same time, he was studying human relations
in order to improve his communication skills with his colleagues, because
of his new position.
The
sight of her husband’s tortured body had made a considerable impact on her. After the events, she went to live with her
brother because the house was taken away from her. Furthermore, all her belongings were stolen and it was then that
she decided to go to the United States in order to make a living and enable
her children to get ahead. When she left Guatemala, she had to spend about
US$3,000.00 (three thousand United States dollars) for travel expenses, food
and to pay someone to get her across the border. She left her children in Guatemala with her mother at that time,
and this caused her “a great deal of pain [...] because they needed to be
with their mother, with their father.” She had not seen her children from
1988, the year in which she went to the United States, until 1997, the year
in which she appeared at the hearing before the Court on the merits of this
case and, since then, she has not seen them again. This has caused her “a
great deal of sorrow, a great deal of pain.”
Her
immigration papers are not in order in the United States; she works with a
family and looks after the children; she earns about US$900.00 (nine hundred
United States dollars) a month and sends US$400.00 (four hundred United States
dollars) a month to her children..
Up
until her husband’s death she was living a normal life and they were very
happy, but in the United States she lives alone and is always working, so
that she has not had a holiday for the last 12 years.
She has always been in contact with her children and has never abandoned
them. Her oldest daughter, who is
22 years of age, desperate owing to the years of separation, traveled for
22 days to reach the United States and join her.
The
absence of a father has caused a great deal of harm to her children. Her second daughter, 19 years of age, was the
only one who was unable to get over it completely. When she was a child, the witness had to take
her to a psychologist to seek professional help, but even today she is inattentive
when she studies. Her daughter told
her that “she would give anything to be with her mother and father.”
With regard to her oldest daughter, the witness indicated that, if
the events had not occurred, they would have always been together and she
would not have had to take the decision to go to her mother; moreover, she
would have completed her studies, because she was studying business administration
in the university and she gave them up to be with her mother.
The person who was most affected was her son of 15 years of age, who
was studying basic secondary education. He
said that he would have wanted to have his father at his side always, because
the latter would have taught him many things that he cannot ask others, such
as what to do when he has problems with his friends or when he is offered
drugs.
Finally,
she has also changed the way she behaves and how she is since her husband’s
death. Before that, she was his wife
who looked after everything and this ended because, since his death “it is
not the same, [...] [she now felt] like a robot that always has to do the
same thing over and over again, working and working and nothing else, [she
has] no time for [herself].” She
thinks about her husband constantly, because if he were still here, she would
not be enduring “this loneliness, working hard.”
She
hopes for justice from the proceeding, and “that they punish those who did
this [...], because there was no reason [for doing it]”.
h) Testimony of Manuel Alberto González Chinchilla,
son of Manuel de Jesús González López
He
lives in Guatemala. He is 15 years of age and lives with his grandmother,
María Luisa de Chinchilla, his sister, Silvia Argentina, aged 19, and his
brother-in-law. He is studying basic secondary education. In the morning he goes to school, then he does
his homework and afterwards goes out to play on the street; he likes sports,
because his father played sports.
He
remembers the day they captured his father.
Although he knows what happened to his father, he does not know the
identity of the State agents who caused the latter’s death. He does not remember when his mother left,
but she has been providing financial support to him and his sisters.
In
school, he was taught about human rights, the duty of citizens to obey the
law and the obligation of the State to look after all citizens. However, owing to what happened to his father, this raised doubts,
because “the book says one thing and the States does another.”
He
has not seen his mother for three years and he speaks to her by telephone
every week or every two weeks. His
oldest sister went to the United States because she wanted to be with their
mother and he wants to go also, but cannot do anything about this.
He
has missed his father very much since he was very young. He remembers his father a great deal and would like to have him
near. He wants to be like his father,
he sees him as his guide because he considered him a good father, and this
has motivated him to be like his father, because, where he lives, “there are
many delinquents, many bad [persons] and [he] is not involved in any of this.”
When taking a decision on a problem or a situation, he has felt the need to
have his father near; for example, in his studies, because his father could
have advised him about what profession he should study.
He is now thinking about studying to be an architect or an airplane
pilot. He senses “[his] father’s presence within himself”.
He
would like them all to be together as before.
c) EXPERT EVIDENCE
66. At the public hearing of August 11 and 12,
2001, the Court received the reports of the experts proposed by the Inter-American
Commission. These reports are summarized below:
a) Expert
report of Graciela Marisa Guilis, Psychologist, specialist in mental health
and human rights violations, official of the Center for Legal and Social Studies
in Buenos Aires
A
person who has been abducted and secretly detained, who has been exposed to
an extremely stressful, traumatic experience and involved in events that represent
a real danger to his life or physical integrity, or who witnesses unexpected
or violent deaths, serious harm, threats against his life or grave injuries,
suffers what is known as the “post-trauma
stress” syndrome. A member of
the family or a person who is close to the victim “who is told about such
treatment by someone who has experienced it”, may also suffer this syndrome,
because the purpose of torture is not only “the physical and psychological
breakdown of the victim, but also of his group.”
The
whole family group is affected when one of its members is affected by a severe
traumatic situation. Those who are
subjected to such circumstances suffer the effects of being in an unbearable
situation of absolute abandonment, called “encerrona
trágica” (tragic seclusion), in which the life of a person is exposed
to the arbitrary decision of another person on whether they live or die. This occurs, above all, in cases when the victims
are assassinated, since the family is invaded by a feeling of terror, because
the events are usually caused by institutions that, in principle, are supposed
to guarantee safety and protection.
Thus,
“post-trauma stress” can be defined as “a
severe reaction to situations of crisis such as wars, catastrophes, [and]
crime [...], which has consequences that are not always apparent, capable
of provoking severe problems of adaptability in the social, family, work and
creative spheres, as well as disorders with different characteristics that,
if they become chronic, can lead to total disability and even death.”
Traumas
endure over time and it is rare that they heal until there is some possibility
that the mourning for the lost member of the family can be closed. In normal circumstances, mourning is a distressing
and arduous psychological process; however, it can be closed with the acceptance
of death as something that is “irreducible to every human being.”
Pathological bereavements are those that become chronic and do not
end, because there is no information on the cause of death and, consequently,
the member of the family feels that he is responsible for the death of the
loved one.
Pathological
bereavement also causes the subject to isolate himself, to withdraw from reality
and to build his own world. Furthermore,
pre-existing loving relationships can be destroyed, as in the case of the
witness, María Ildefonsa Paniagua, who blames the victim’s father for not
having protected him enough. When
there is no guilty person or perpetrator, every effort must be made to find
one. The human psyche is characterized by the need to have an explanation
and a response to its questions. When
they do not exist, it creates them. These are imaginary constructions or truths.
Furthermore,
in all families who are experiencing a pathological bereavement, there is
a kind of atemporality; yesterday is today, the event is always present. The lack of explanations as to the cause of
death and the lack of the ability to connect to other “love objects” after
the loss of a loved person are also characteristic.
In
all the families interviewed there was a before and after the traumatic situation
they underwent, so that there was a radical change in their lives. When bereavement becomes chronic, the person
loses interest in the external world and has a feeling of despair. In the case of the victims’ parents, none of
them has been able to take charge either of themselves or of their families
as they did before. The bereavement
is “absolutely unbearable and cannot be understood by the parents [and] generally
the siblings are those that seek to heal their parent’s grief in some way.”
The parents used to take care of, protect and support their children. This
is inverted after a trauma and it is the children who then have to become
responsible for their parents. This happened to Ingrid Elizabeth Gómez Ayala
and limited her possibilities of developing and living the life of a young
woman with all the potential that life offers.
It
also produces self-absorption, a retraction in the affectivity of the victim’s
family, as if re-establishing loving ties put them at risk of new losses. However, it is important to emphasize that
there are differences within the family, according to the kind of ties that
united each member to the victim. “The effects on the parents, the children
and the siblings are different.”
In
general, those affected do not want anything and often say that they want
to die because the pain is so intense that death seems to be the only escape
from it.
Another
constant factor in the next of kin of the victims is the physical damage,
because they suffer from multiple illnesses; particularly in the case of the
parents, where ailments of a psychosomatic nature start from the time their
children are assassinated.
1. Concerning
the witness Salvador González Najarro
She
stated that he has problems swallowing and with his digestive system. Often various days go by when he cannot eat
and has intestinal problems, a burning sensation; this indicates that he may
have an ulcer. According to Mr. González,
these problems arose when he found out that his son had died and, since then,
his health has not recovered. It is important to emphasize that the victim
was his oldest child, because in his culture, the oldest son is very important
and his loss cannot be substituted by another child.
2. Concerning
the witness Blanca Esperanza Ayala de la Cruz
This
witness also mentioned health problems to her, in particular a heart disease.
She emphasized that the psychosomatic illnesses that exist are not
invented by the patient and have a psychological origin. Blanca Esperanza
told her that she has been unable to return to work since the event.
3. Concerning
the witness Tino Corado Barrientos
She
indicated that he belonged to a family where all the boys have died, for different
reasons. Tino is the last male representative
in his household and, as a result, he feels very responsible.
She underlined the significance of his choice of occupation as a bodyguard
and observed that this fact could be interpreted as a form of “controlling
death,” or also as a way of putting his life at risk, to continue the family
genealogy, in what could be considered a pathological identification with
the victim’s strongest aspects.
4.
Concerning the witness Miriam Enoé Zelada Chinchilla
Her
situation is similar to that of Tino Corado Barrientos, because she is the
sister of one of the victims. All
her anxiety and concern relates to her mother’s grief, because the latter
has never been able to get over the death of her son.
Her mother locked herself up in the victim’s room for 15 days after
his death and, according to Miriam, is unable to leave this space, as if it
was a tomb. It appears that, as a
psychosomatic result, her mother began to have symptoms of diabetes. She also visits the cemetery almost every day
because she says that it is the only way to soothe her anxiety and calm herself
down.
5.
Concerning the witness María Ildefonsa Morales de Paniagua
She
has suffered serious health problems as a result of the death of her daughter,
including, in particular, the immediate appearance of symptoms of diabetes
and a stroke that made it impossible for her to walk. Also, the fact that she had to flee from her country seeking asylum
is a dramatic situation that dispersed her household.
6. Concerning
the witness María Elizabeth Chinchilla de González
When
her husband was abducted, relationships were broken; there was a loss of trust
among her neighbors and she was left alone in this situation, because people
were afraid and did not offer her help.
Also, there were many tragic factors: María Elizabeth’s husband died,
she lost her home, her belongings were stolen, she has been threatened, she
has gone to live illegally in the United States to work on a temporary basis
and, finally, she feels guilty for having abandoned her children. The latter
may result in an inability to build new emotional relationships with other
human beings. The contrast between
a previous state of happiness and the current situation may produce phenomena
of exaggeration that could intensify the sadness of being alone. Human beings
tend to idealize lost situations, lost loves.
7. Concerning
the witness Manuel Alberto González Chinchilla
The
family gave the impression that he was a good father, and Manuel Alberto decided
to identify with this. In his case,
the existence of favorable conditions that allowed him a healthy development
was positive. Also elements such as
knowing the truth and justice being done would be positive for his psychological
well-being.
With
regard to the other members of the families of the victims who she did not
interview directly, she stated that, since this case involves social traumas,
such acts harm the whole household, so that if they affect one member of the
family, it is certain that they have damaged the whole nuclear family. In the case of the next of kin who were children
when the events occurred, “post-trauma
stress” generally affects their mental system differently from that of
adults, because they are still growing and have developed fewer defense mechanisms.
Moreover, the pathological bereavement suffered by a father or mother
has an impact on their capacity to maintain loving ties with their children,
and this has repercussions on the latter’s normal development.
Finally,
she stated that the denial of justice and impunity affect the psyche and enhance
the fear of the next of kin, particularly, that the situation could be repeated
within their family. So that “truth
and justice always help to heal these wounds, [although] not to eradicate
them.”
b) Expert report of Robin Eric Hahnel, doctorate
in Economics, Professor at the American University in Washington D.C., specialist
in micro-economic theory and in the calculation of loss of earnings
The
victims of the human rights violations and their next of kin lost the benefits,
income and salary that they would have earned during their working life. It
is therefore necessary to calculate what they would have earned and then calculate
what should be paid to the victims’ next of kin for loss of earnings, according
to the payment system used.
To
make this calculation, it is essential to have an estimate of the time that
the victim would have worked, and this makes it necessary to establish his
life expectancy, according to his age at the time of his death, and not with
regard to the average lifespan of any member of the population. It is also necessary to use the most recent
data to make this calculation, and not the tables published at the time of
his birth.
The
most appropriate way to calculate the loss of earnings of the victims is to
establish two different dates, using as a basis the moment of the events of
the case and the age at which the victim would have died from natural causes.
The
first period would be calculated as of the moment of the events until the
date on which payment would be made. During
this first stage, the State would make payment in arrears, so this would entail
the payment of interest. The second
period would commence on the date of payment until the time when the victim
would have died from natural causes, which would result in a pre-payment;
therefore, it would be necessary to discount an amount in favor of the State.
In the instant case, the next of kin would have had to take out loans,
paying an active rate of interest to replace the State’s payments in arrears
and this is twice as high as the passive rate of interest.
However, when the next of kin receive pre-payment for the future period
they can invest this and it can be assumed that this investment would be at
an interest rate equal to the rate received for a minimum-risk investment. Accordingly, in the case of the discount, it is necessary to use
a different rate of interest to the rate of interest used to collect from
the State for not having paid from the time of the abduction forwards. If it is decided to use 3% for the discount
period, at least 6% should be used for the unpaid interest on the part owed
from 1988 until the present.
Another
reason for making the division into two periods is because no one knows what
would have happened in the future with the earnings of these persons; however,
based on the information available, it is possible to define the human capital
of the victim and find out from available data and information, the job development
of persons similar to the victim from 1988 to the present. In other words, firm data exist for calculating
the earnings of the victims from 1988 until today, but not for the future.
In relation to the second period, it must be remembered that people
receive salary increases. Every year the victims would have progressed
in their position within the Guatemalan workforce, due to their age, personal
experience and seniority. Also, in
the long-term, the whole workforce of Guatemala increases its productivity
and receives salary increases in real terms.
Finally, it is likely that the victims would have received increases
in nominal salaries due to inflation in the country. With regard to the first period in the case sub judice, the criteria applicable in
order to make a reasonable calculation of such increases is determined from
available data. If there is a lack of information on the earnings of similar
persons in Guatemala, this can be obtained by consulting data produced by
the International Labor Organization (ILO), which indicates that salaries
increased by 24% between 1988 and 1998.
Moreover, according to statistical data prepared by the Banco Central de Guatemala salary increases
had risen slightly more than 50% per year in 1998 and 1999. It should be noted that this was mostly due
to inflation, but also to real causes. For
the second period, experience points to increases of 2%. We also have to observe
the recent history of Guatemala with regard to the increase of the gross national
product per capita, which is 1.5%,
and World Bank documents could be consulted, as they give estimates about
the Guatemalan economy as regards increases in productivity for the next five
years, and these would be useful for the period extending from now until the
future.
*
*
*
The considerations of the Court
67. The body of evidence in the case constitutes
an indivisible whole that is made up of the evidence submitted during the
different stages of the proceeding. Thus,
the statements made by María Elizabeth Chinchilla, María Ildefonsa Morales
de Paniagua, Alberto Antonio Paniagua Morales, Blanca Lidia Zamora de Paniagua,
Oscar Humberto Vásquez and Raquel de Jesús Solórzano during the public hearing
on the merits of the case held before this Court on September 22, 23 and 24,
1997, and the statement by Gilberto González Saquij contained in the police
report of March 22, 1998, also form part of the body of evidence that will
be considered during this stage.
68. The parties have contributed various tables
to the file showing the life expectancy of the victims at the time of the
events. These tables, which do not
contradict each other, but represent different ways of making the calculation,
are incorporated into the body of evidence.
Owing to the discussion between the parties about this item, the Court
makes some comments on these tables. The document entitled “Guatemala: los contrastes del desarrollo humano”
(Guatemala: contrasts in human development), sponsored by the United Nations,
measures life expectancy at birth by sex in the department of Guatemala.
These calculations, which consider life expectancy at birth, cannot
be used, because the victims had already lived a certain number of years;
this factor improved their situation, so that the life expectancy applied
to them, is greater. The 1990-1995 summary mortality table for Guatemala,
prepared by the National Institute of Statistics corresponds to the general
population by five-year period, age group and sex. Lastly, the leaflet of the National Institute
of Statistics of Guatemala entitled “Indicadores Sociales de Guatemala” (Guatemalan Social Indicators),
prepared by the Department for Production and Dissemination of Statistics
in January 1999, establishes life expectancy by five-year periods. The Court will take the data contained in the
last two tables and will determine the life expectancy of the victims, understood
as the number of additional years that each victim might have lived, taking
into account data such as age, sex and geographical zone of residence (supra 66.b)
69. In this case, as in others, the Court accepts
the evidentiary value of those documents submitted by the parties at the due
procedural opportunity or as helpful evidence that were not contested or opposed
and the authenticity of which was not questioned[18].
70. Regarding the testimony given by the next
of kin of the victims in this case, the Court admits it when it is consistent
with the purpose of the line of questioning proposed by the Commission. In this respect, this Court considers that,
as they are close relatives and have a direct interest in the case, their
statements cannot be evaluated in isolation, but rather within the context
of all the evidence in the proceedings. With
regard to reparations, the testimony of the next of kin is useful, provided
they can supply additional information about the consequences of the violations
that were committed.
71. As for the expert reports by Graciela Marisa
Guilis and Robin Eric Hahnel, this Court admits them, insofar as they are
consistent with the purpose proposed by the Commission.
vi
Obligation
to make reparation
72. In the seventh operative paragraph of the
judgment of March 8, 1998, the Court decided that Guatemala “[was] obliged
to make reparation for the consequences of the declared violations and to
pay fair compensation to the victims and, where appropriate, to their next
of kin” (supra 3.7). The Court will decide the disagreement
on this issue in this judgment.
73. In the eighth operative paragraph of the
same judgment, the Court decided to open the reparations stage and authorize
the President to adopt the corresponding procedural measures.
74. Article 63(1) of the American Convention
in fine applies to reparations; it establishes
[The Court] 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 (the original is not underlined).
75. In its
consistent jurisprudence, this Court has reiterated that it is a principle
of international law that any violation of an international obligation that
has produce damage entails the obligation to make adequate reparation[19].
76. Reparation
of the damage resulting from the violation of an international obligation
requires, whenever possible, the full restitution (restitutio in integrum), which consists in the re-establishment of
the previous situation. If this is
not possible, as in the instant case, the international court must determine
a series of measures, which, in addition to guaranteeing the rights that have
been violated, make reparation for the consequences of the violations, and
also must also order the payment of an indemnity as compensation for the damages
caused[20].
77. The State may not invoke provisions of domestic
law in order to modify or fail to comply with the obligation to make reparation
– all aspects of which (scope, nature, forms and determination of the beneficiaries)
are regulated by international law[21].
78. As the Court has indicated, Article 63(1)
of the American Convention codifies a rule of common law that is one of the
fundamental principles of contemporary international law on State responsibility[22]. When an
unlawful act occurs that may be attributed to a State, the international responsibility
of the latter is immediately engaged for the violation of an international
law, with the resulting obligation to make reparation and to ensure that the
consequences of the violation cease.
79. As the word indicates, reparations consist
in the measures that are intended to eliminate the effects of the violations
that were committed. Their nature
and amount depend on the damage caused at both the pecuniary and the non-pecuniary
level. Reparations are not supposed
to enrich or impoverish the victim or his heirs[23].
80. Regarding violations of the right to life,
as in the case of five of the victims in the instant case, in view of the
nature of the asset affected and according to international jurisprudential
practice, the reparation is usually in the form of a pecuniary indemnity or
compensation to which should be added the guarantee that the harmful act will
not be repeated[24].
81. The reparations established in this judgment
must be consistent with the violations found in the judgment on merits delivered
by the Court on March 8, 1998 (supra
3).
vii
Beneficiaries
82. The Court now proceeds to determine the
person or persons who, in the instant case, should be considered the “injured
party” in the words of Article 63(1) of the American Convention. Since the violations of the American Convention
that the Court established in its judgment of March 8, 1998, were committed
with regard to Anna Elizabeth Paniagua Morales, Julián Salomón Gómez Ayala,
William Otilio González Rivera, Pablo Corado Barrientos, Manuel de Jesús González
López, Augusto Angárita Ramírez, Doris Torres Gil, Marco Antonio Montes Letona,
Oscar Vásquez and Erick Leonardo Chinchilla, it should be considered that
they are all included in this category and are eligible for the reparations
that the Court establishes. In the
case of the victims who died, it will also be necessary to determine which
of the reparations that are established in their favor may be transmitted
by succession to their next of kin, and to which of the latter.
83. No one disputes that Augusto Angárita Ramírez,
Doris Torres Gil and Marco Antonio Montes Letona are beneficiaries.
Nor is there any dispute about the daughter of Anna Elizabeth Paniagua
Morales (María Elisa Meza Paniagua) and the González Chinchilla family (María
Elizabeth Chinchilla, Silvia Argentina, Karen Paola and Manuel Alberto, all
González Chinchilla). The Court considers
that this designation is in keeping with its jurisprudence, because they are
beneficiaries as successors of their dead family members (infra 96, 167, 187 and 193).
84. The Court considers that the right to reparation
for the damages suffered by the victims until the time of their death is transmitted
by succession to their heirs. As this Court has stated:
[i]t is a norm common to most legal
systems that a person’s successors are his or her children. It is also generally accepted that the spouse
has a share in the assets acquired during a marriage; some legal systems also
grant the spouse inheritance rights along with the children. If there is no spouse or children, private
common law recognizes the ascendants as heirs.
It is the Court’s opinion that these rules, generally accepted by the
community of nations should, be applied in the instant case, in order to determine
the victims’ successors for purposes of compensation[25].
85. Moreover, the next of kin or third parties
may claim the damage that the death of the victim caused them in their own
right[26]. However this Court has indicated that certain conditions
must be met; these include the existence of a relationship of regular and
effective financial support between the victim and the claimant, the possibility
of realistically presuming that this support would have continued if the victim
had not died, and that the claimant would have had a financial need that was
regularly satisfied by the support provided by the victim[27].
86. With regard to such claimants, the onus probandi corresponds to the next of
kin of the victim[28], and the expression “next of kin of the victim”
should be understood in an extensive form that covers all those persons closely
related to him; in other words, his children, parents and siblings, who could
be considered next of kin and have the right to receive a compensation, provided
they fulfill the requirements established by the Court’s jurisprudence[29]. For the effects of the case sub judice, this type of reparation will be examined in the corresponding
section (infra IX), according to
the circumstances of each of the victims and the body of evidence that the
next of kin have submitted to this Court.
viii
Proven facts
87. The Court will base itself on the facts
admitted as proven in the judgment of March 8, 1998, in order to determine
the measures of reparation that are in order in this case. Moreover, at this
stage of the proceeding, the parties have also submitted new elements of evidence
to the file to demonstrate the existence of complementary facts that are relevant
for determining the measures of reparation.
1)
Concerning the victims in the case
a) The exchange rate for the Guatemalan currency
in relation to the United States dollar in February and March 1988 was Q2.55
(two quetzales and fifty-five cents), applicable to all except Julián Salomón
Gómez Ayala, who died on June 1, 1987 (infra 87.3.b).
Cf. Table of statistics of the average monthly exchange rate from January
1985 to January 2001, prepared by the Department of Economic Studies of the
Banco de Guatemala.
b) In Guatemala there are legal provisions
in favor of workers in the private and public sectors.
Cf. Decree
No. 78-89 “Bonificación-Incentivo Sector Privado” (Private Sector Incentive-Bonus)
adopted on December 7, 1989, and ratified on December 19, 1989; decree No.
42-92 adopted and ratified on June 2, 1992; and decree No. 7-2000 adopted
on March 1, 2000, and ratified on March 6, 2000.
2)
Concerning Anna Elizabeth Paniagua Morales
a) She was 25.6 years of age at the time
of her detention and subsequent execution.
Cf. Copy
of the certification of the birth certificate of Anna Elizabeth Paniagua Morales;
copy of the identity card of Anna Elizabeth Paniagua Morales; copy of the
registration of the death of Anna Elizabeth Paniagua Morales; Affidavit by
Alberto Paniagua Morales; and testimony of María Ildefonsa Morales de Paniagua
before the Inter-American Court on August 11, 2000.
b) At the time of the facts, she lived with
her daughter, María Elisa Meza Paniagua, her parents, Alberto Antonio Paniagua
and María Ildefonsa Morales Chavez, her brother, Alberto Antonio Paniagua
Morales, her sister-in-law, Blanca Lidia Zamora Martínez, and her nieces.
Cf. Testimony of Blanca
Lidia Zamora de Paniagua before the Inter-American Court on September 22,
1997; testimony of María Ildefonsa Morales before the Inter-American Court
on September 22, 1997; testimony of Alberto Antonio Paniagua Morales before
the Inter-American Court on September 22, 1997; testimony of María Ildefonsa
Morales before the Inter-American Court on August 11, 2000; and copy of the
birth certificate of Alberto Antonio Paniagua Morales.
c) She worked as a bookkeeper.
Cf. Affidavit by Elsa
Carolina Paniagua Morales; Affidavit by Alberto Antonio Paniagua Morales;
and testimony of María Ildefonsa Morales de Paniagua before the Inter-American
Court on August 11, 2000.
d) The life expectancy of a woman of 25.6
years of age in Guatemala in 1988 was 48.33 additional years (supra 68).
Cf. Summary mortality
tables for Guatemala of the National Institute of Statistics (period 1990-1995);
and leaflet prepared by the National Institute of Statistics “Indicadores
Sociales de Guatemala” (Guatemalan Social Indicators).
2.1)
Concerning the next of kin of Anna Elizabeth Paniagua Morales
a) Her daughter is María Elisa Meza Paniagua,
her parents are María Ildefonsa Morales de Paniagua and Alberto Antonio Paniagua,
and her siblings, Blanca Beatriz, Alberto Antonio, Hugo Morani, Elsa Carolina
and German Giovanni, all of them Paniagua Morales.
Cf. Copy of the birth
certificate of María Ildefonsa Morales Chávez; copy of the birth certificate
of Hugo Morani Paniagua Morales; copy of the birth certificate of Alberto
Antonio Paniagua Morales; copy of the birth certificate of Elsa Carolina Paniagua
Morales; copy of the birth certificate of German Giovanni Paniagua Morales;
copy of the birth certificate of Blanca Beatriz Paniagua Morales; copy of
the certification of the birth record of Anna Elizabeth Paniagua Morales;
testimony of María Ildefonsa Morales de Paniagua before the Inter-American
Court on September 22, 1997; and testimony of María Ildefonsa Morales de Paniagua
before the Inter-American Court on August 11, 2000.
b) The members of the family with whom she
lived, suffered pecuniary and non-pecuniary damages owing to the detention
and execution of Anna Elizabeth Paniagua Morales.
Cf. Newspaper article
“Trading murder, torture for peace, freedom”. The Intelligence. Tuesday, March
15, 1988, p. 13; affidavit by Alberto Paniagua; testimony of María Ildefonsa
Morales de Paniagua before the Inter-American Court on September 22, 1997;
testimony of Alberto Antonio Paniagua Morales before the Inter-American Court
on September 22, 1997; testimony of María Ildefonsa Morales de Paniagua before
the Inter-American Court on August 11, 2000; and expert report of Graciela
Marisa Guilis before the Inter-American Court on August 11, 2000.
c) The victim’s mother and sister-in-law
(Blanca Lidia Zamora de Paniagua) began the search for her in various police
premises and took pertinent measures under domestic law in order to try and
find her, all of which generated certain expenses.
Cf. Testimony of María
Ildefonsa Morales de Paniagua before the Inter-American Court on September
22, 1997; testimony of Blanca Lidia Zamora de Paniagua before the Inter-American
Court on September 22, 1997; and testimony of María Ildefonsa de Paniagua
before the Inter-American Court on August 11, 2000.
d) As a result of the threats they received
after the death of Anna Elizabeth Paniagua Morales, members of the Paniagua
Morales family left Guatemala for the United States and Canada.
Cf. Testimony of María
Ildefonsa Morales de Paniagua before the Inter-American Court on September
22, 1997; testimony of Alberto Antonio Paniagua Morales before the Inter-American
Court on September 22, 1997; testimony of María Ildefonsa Morales de Paniagua
before the Inter-American Court on August 11, 2000; and expert report of Graciela
Marisa Guilis before the Inter-American Court on August 11, 2000.
2.2)
Concerning the next of kin’s representation and related expenses
The
lawyer, Mark Martel, represented the next of kin of Anna Elizabeth Paniagua
Morales in the measures they took before the Inter-American Court and Commission,
and assumed certain expenses related to these measures.
Cf. Affidavit by Mark Martel; and power of attorney granted by Alberto
Paniagua to Mark Martel.
3)
Concerning Julián Salomón Gómez Ayala
a) He was 24.2 years of age at the time of
his detention and subsequent execution.
Cf. Copy of the birth
certificate of Julián Salomón Gómez Ayala; and copy of the identity card of
Julián Salomón Gómez Ayala.
b) The exchange rate of the Guatemala currency
in relation to the United States dollar on June 1, 1987, was Q2.75 (two quetzales
and seventy-five cents).
Cf. Table of statistics of the average monthly exchange rate from January
1985 to January 2001, prepared by the Department of Economic Studies of the
Banco de Guatemala.
c) At the time of the facts, he lived with
him companion, Bertha Violeta Flores Gómez, and his son, Julio Salomón Gómez
Flores, in Guatemala City.
Cf. Testimony of Blanca Esperanza Ayala de la Cruz before the Inter-American
Court on August 11, 2000.
d) The life expectancy of a man of 24.2 years
of age in Guatemala in 1988 was 43.98 additional years (supra 68).
Cf. Summary mortality
tables for Guatemala of the National Institute of Statistics (period 1990-1995);
and leaflet prepared by the National Institute of Statistics “Indicadores
Sociales de Guatemala”
e) His parents are Petronilo Gómez Chávez
and Blanca Esperanza Ayala de la Cruz, his companion is Bertha Violeta Flores
Gómez, his son is Julio Salomón Gómez Flores and he had seven siblings: Danilo
Abraham, Deifin Olivia, Ingrid Elizabeth, Israel, Jorge Isaías, Douglas Moises
and Lidia Marisa, all Gómez Ayala.
Cf. Copy of the identity
card of Bertha Violeta Flores Gómez; copy of the certification of the birth
certificate of Julio Salomón Gómez Flores; copy of the identity card of Blanca
Esperanza Ayala de la Cruz; copy of the identity card of Petronilo Gómez Chávez;
copy of the identity card of Lidia Marisa Gómez Ayala; copy of the identity
card of Deifin Olivia Gómez Ayala; copy of the identity card of Ingrid Elizabeth
Gómez Ayala; copy of the identity card of Danilo Abraham Gómez Ayala; copy
of the identity card of Israel Gómez Ayala; copy of the identity card of Jorge
Isaías Gómez Ayala; copy of the certification of the birth certificate of
Douglas Moises Gómez Ayala; and testimony of Blanca Esperanza Ayala de la
Cruz before the Inter-American Court on August 11, 2000.
3.1
Concerning the next of kin of Julián Salomón Gómez Ayala
a) His parents, his companion and his son
suffered pecuniary and non-pecuniary damages owing to the detention and execution
of Julián Salomón Gómez Ayala.
Cf. Testimony of Blanca
Esperanza Ayala de la Cruz before the Inter-American Court on August 11, 2000;
testimony of Ingrid Elizabeth Gómez Ayala before the Inter-American Court
on August 11, 2000; and expert report of Graciela Marisa Guilis before the
Inter-American Court on August 11, 2000.
b) His companion and his parents began searching
for him in various police premises, took pertinent measures under domestic
law in order to find him and, subsequently, resorted to the inter-American
system, all of which generated various expenses.
Cf. Testimony of Blanca Esperanza Ayala de la Cruz before the Inter-American
Court on August 11, 2000; and testimony of Ingrid Elizabeth Gómez Ayala before
the Inter-American Court on August 11, 2000.
3.2)
Concerning the next of kin’s representation and their respective expenses
The
lawyers, Viviana Krsticevic, Ariel Dulitzky, Marcela Matamoros, Juan Méndez
and José Miguel Vivanco, represented the next of kin of Julián Salomón Gómez
Ayala in the measures they took before the Commission. At the reparations
stage before the Court, the next of kin assumed their own defense and did
not establish that these measures generated expenses.
Cf. The Commission’s briefs of August 31, 1998, and August 2, 1999 (supra 11 and 29); and the briefs
of the next of kin of April 28, 1999, submitted directly, without the assistance
of a lawyer (supra 25).
4) Concerning
William Otilio González Rivera
a) He was 26.7 years of age at the time of his detention and subsequent
execution.
Cf. Copy of the certification
of the birth certificate of William Otilio González Rivera; and copy of the
certificate issued by the Secretary of the Municipality of Comapa, in the
Department of Jutiapa, dated June 5, 2000, regarding the identity card of
William Otilio González Rivera.
b) He had an informal sales kiosk in one
of the markets in Guatemala City.
Cf. Statement by Gilberto González Saquij contained in a police report
dated March 22, 1988; testimony of Salvador González Najarro before the Inter-American
Court on August 11, 2000; and official letter No. 100-2000 of May 22, 2000,
from Mercados de Guatemala, the municipality’s public services.
c) The life expectancy of a man of 26.7 years
of age in Guatemala in 1988 was 42.37 additional years (supra 68).
Cf. Summary mortality
tables for Guatemala of the National Institute of Statistics (period 1990-1995);
and leaflet prepared by the National Institute of Statistics “Indicadores
Sociales de Guatemala”
4.1)
Concerning the next of kin of William Otilio González Rivera
a) His parents are Salvador González Najarro
and María Asunción Rivera Velásquez and he had five siblings: Santos Hugo,
José Alfredo, Julio Moises, Anatanahel and Leydi Rosibel, all of them González
Rivera.
Cf. Birth
certificate of William Otilio González Rivera; birth certificate of Santos
Hugo González Rivera; birth certificate of José Alfredo González Rivera; birth
certificate of Julio Moises González Rivera; birth certificate of Anatanahel
González Rivera; birth certificate of Leydi Rosibel González Rivera; and testimony
of Salvador González Najarro before the Inter-American Court on August 11,
2000.
b) His next of kin suffered pecuniary and
non-pecuniary damages owing to the detention and execution of William Otilio
González Rivera.
Cf. Testimony of Salvador
González Najarro before the Inter-American Court on August 11, 2000; and expert
report of Graciela Marisa Guilis before the Inter-American Court on August
11, 2000.
4.2)
Concerning the representation of the next of kin and the respective
expenses
The
lawyers, Viviana Krsticevic, Ariel Dulitzky, Marcela Matamoros, Juan Méndez
and José Miguel Vivanco, represented the next of kin of William Otilio González
Rivera before the Inter-American Commission and the lawyer, Avilio Carrillo
Martínez, represented them before the Inter-American Court at the reparations
stage. These measures generated certain expenses.
Cf. The briefs of the next of kin of the victim of March 23, 1999, and
March 21, 2001 (supra 23), and the Commission’s briefs of August 31, 1998,
and August 2, 1999 (supra 11 and 29).
5)
Concerning Pablo Corado Barrientos
a) He was 24.9 years of age at the time of
his detention and subsequent execution.
Cf. Copy of the certification of the birth certificate of Pablo Corado
Barrientos; and certificate issued by the Municipal Secretary of the Public
Registry of the town of El Adelanto, Department of Jutiapa on May 19, 2000,
concerning the identity card of Pablo Corado Barrientos.
b) He had an informal stall in one of the
markets in Guatemala City.
Cf. Statement by Gilberto González Saquij contained in police report
dated March 22, 1988; testimony of Tino Corado Barrientos before the Inter-American
Court on August 11, 2000; and official letter No. 100-2000 of May 22, 2000,
from Mercados de Guatemala, the municipality’s public services.
c) The life expectancy of a man of 24.9 years
of age in Guatemala in 1988 was 43.98 additional years (supra 68).
Cf. Summary mortality
tables for Guatemala of the National Institute of Statistics (period 1990-1995);
and leaflet prepared by the National Institute of Statistics “Indicadores
Sociales de Guatemala”.
5.1)
Concerning the next of kin of Pablo Corado Barrientos
His
mother is Juana Barrientos Valenzuela and his siblings, Tino and Francisca
Corado Barrientos;
Cf. Copy of the identity
card of Tino Corado Barrientos; copy of the identity card of Juana Barrientos
Valenzuela; copy of the certification of the birth certificate of Tino Corado
Barrientos; copy of the certification of the birth certificate of Pablo Corado
Barrientos; testimony of Tino Corado Barrientos before the Inter-American
Court on August 11, 2000; and copy of the birth certificate of Francisca Corado
Barrientos.
5.2)
Concerning the next of kin’s representatives and the respective expenses
The
lawyers, Viviana Krsticevic, Ariel Dulitzky, Marcela Matamoros, Juan Méndez
and José Miguel Vivanco, represented the next of kin of Pablo Corado Barrientos
before the Inter-American Commission, and the lawyer, Antonio René Argueta
Beltrán, represented them before the Inter-American Court at the reparations
stage. These measures generated certain expenses.
Cf. The briefs of the next of kin of the victim of June 3 and 23, 1999
(supra 28); the Commission’s briefs of August 31, 1998, and August 2, 1999
(supra 11 and 29); and power of attorney granted by Tino Corado Barrientos
and Juana Barrientos Valenzuela to COJUPO, through its lawyer, Antonio René
Argueta Beltrán, received by the Secretariat on June 3, 1999.
6)
Concerning Manuel de Jesús González López
a) He was 29.1 years of age at the time of
his detention and subsequent execution.
Cf. Identity card
of Manuel de Jesús González López; birth certificate of Manuel de Jesús González
López; and copy of the registration of the death of Manuel de Jesús González
López.
b) At the time of the facts, he lived with
his wife, María Elizabeth Chinchilla, and his three children, Karen Paola,
Silvia Argentina and Manuel Alberto, all González Chinchilla.
Cf. Copy of the registration
of the death of Manuel de Jesús González López; copy of the registration of
the birth of Karen Paola González Chinchilla; copy of the registration of
the birth of Silvia Argentina González Chinchilla; copy of the registration
of the birth of Manuel Alberto González Chinchilla; testimony of María Elizabeth
Chinchilla before the Inter-American Court on September 22, 1997; and testimony
of María Elizabeth Chinchilla before the Inter-American Court on August 11,
2000.
c) He was a mechanic by trade and earned
a salary of Q598.82 (five hundred and ninety-eight quetzales and eighty-two
cents) a month.
Cf. Affidavit by María
Chinchilla dated August 31, 1998; certificate issued by Ramiro R. Velásquez
dated August 31, 1998; copy of the registration of the death of Manuel de
Jesús González López; copy of the registration of the birth of Karen Paola
González Chinchilla; copy of the registration of the birth of Silvia Argentina
González Chinchilla; copy of the registration of the birth of Manuel Alberto
González Chinchilla; testimony of María Elizabeth Chinchilla before the Inter-American
Court on September 22, 1997; and testimony of María Elizabeth Chinchilla before
the Inter-American Court on August 11, 2000.
d) The life expectancy of a man of 29.1 years
of age in Guatemala in 1988 was 40.05 additional years (supra 68).
Cf. Summary mortality
tables for Guatemala of the National Institute of Statistics (period 1990-1995);
and leaflet of the National Institute of Statistics “Indicadores Sociales
de Guatemala”.
6.1
Concerning the next of kin of Manuel de Jesús González López
a) His family comprises his wife, María Elizabeth
Chinchilla, and his three children, Karen Paola, Silvia Argentina and Manuel
Alberto, all González Chinchilla.
Cf. Copy of the birth
certificate of Manuel de Jesús González López; copy of the registration of
the death of Manuel de Jesús González López; copy of the registration of the
birth of Karen Paola González Chinchilla; copy of the registration of the
birth of Silvia Argentina González Chinchilla; copy of the registration of
the birth of Manuel Alberto González Chinchilla; testimony of María Elizabeth
Chinchilla before the Inter-American Court on September 22, 1997; and testimony
of María Elizabeth Chinchilla before the Inter-American Court on August 11,
2000.
b) These family members suffered pecuniary
and non-pecuniary damages owing to the detention and subsequent execution
of Manuel de Jesús González López.
Cf. Affidavit by María
Elizabeth Chinchilla dated August 31, 1998; testimony of María Elizabeth Chinchilla
before the Inter-American Court on August 11, 2000; testimony of Manuel Alberto
González Chinchilla before the Inter-American Court on August 11, 2000; and
expert report of Graciela Marisa Guilis before the Inter-American Court on
August 11, 2000.
c) His wife started searching for him in
various State premises, all of which generated certain expenses.
Cf. Testimony of María Elizabeth Chinchilla before the Inter-American
Court on September 22, 1997; and testimony of María Elizabeth Chinchilla before
the Inter-American Court on August 11, 2000.
d) The members of the González Chinchilla
family are currently supported by the earnings of their mother, who had to
go and work in Los Angeles, United States.
Cf. Testimony of María
Elizabeth Chinchilla before the Inter-American Court on September 22, 1997;
testimony of María Elizabeth Chinchilla before the Inter-American Court on
August 11, 2000; testimony of Manuel Alberto González Chinchilla before the
Inter-American Court on August 11, 2000; and expert report of Graciela Marisa
Guilis before the Inter-American Court on August 11, 2000.
6.2) Concerning the next of kin’s representatives and the respective
expenses
The
lawyer, Mark Martel, represented the next of kin of Manuel de Jesús González
López in the measures they took before the Inter-American Commission and Court
and assumed certain expenses related to these measures.
Cf. Affidavit by Mark
Martel dated August 31, 1998; and power of attorney granted to Mark Martel
by María Elizabeth Chinchilla on March 25, 1999.
7) Concerning Oscar Vásquez
The
lawyer, Mark Martel, represented the next of kin of Oscar Vásquez in the measures
they took before the Inter-American Commission and Court and assumed certain
expenses related to these measures.
Cf. Affidavit by Mark
Martel dated August 31, 1998; and power of attorney granted to Mark Martel
by Oscar Vásquez.
8)
Concerning Erick Leonardo Chinchilla
a) His mother is María Luisa Chinchilla Ruano.
Cf. Testimony of Miriam
Enoé Zelada Chinchilla before the Inter-American Court on August 11, 2000;
and copy of the birth certificate of María Luisa Chinchilla Ruano.
b) The next of kin of Erick Leonardo Chinchilla
took pertinent judicial measures under domestic law, which generated various
expenses.
Cf. Testimony of Miriam Enoé Zelada Chinchilla before the Inter-American
Court on August 11, 2000.
c) The lawyers, Viviana Krsticevic, Ariel
Dulitzky, Marcela Matamoros, Juan Méndez and José Miguel Vivanco, represented
the next of kin of Erick Leonardo Chinchilla before the Inter-American Commission
and the lawyer, Antonio René Argueta Beltrán, represented them before the
Inter-American Court at the reparations stage. These measures generated various expenses.
Cf. The briefs of
the next of kin of the victim of April 30, 1999 (supra 26); the Commission’s briefs of August 31, 1998, and August 2, 1999 (supra
11 and 29); and power of attorney
granted by María Luisa Chinchilla Ruano to the Coordinadora Jurídica Popular,
headed by the lawyer, Antonio René Argueta, received by the Secretariat on
March 26, 1999.
*
*
*
No
evidence was submitted with regard to las reparations corresponding to Doris
Torres Gil, Augusto Angárita Ramírez and Marco Antonio Montes Letona.
ix
reparaciones
ANNA ELIZABETH PANIAGUA MORALES
Pecuniary
damage
The arguments of the next of kin
88. Under the general heading of pecuniary damage,
the next of kin of Anna Elizabeth Paniagua Morales included two items in their
brief of September 1, 1998:
a) the
loss of earnings of the victim, who had been working as an accountant for
four years and would have obtained her licentiate in economics in 1990. Therefore,
from 1988 to 1990 she would have received a salary of US$10,000.00 (ten thousand
United States dollars); after receiving her degree in economics she would
have earned the equivalent of US$16,650.00 (sixteen thousand six hundred and
fifty United States dollars) – the average salary for an auditor – during
the following 10 years and then a salary of US$20,000.00 (twenty thousand
United States dollars) a year for the rest of her working life, which would
have been 47 more years, considering her life expectancy. As an average, they
requested an approximate monthly salary of US$1,600.00 (one thousand six hundred
United States dollars); and
b) The
expenses that the next of kin incurred, including the funeral expenses for
the victim and the transfer of 12 members of the Paniagua Morales family to
the United States and Canada, for a total of US$17,000.00 (seventeen thousand
United States dollars); also, concerning certain patrimonial losses suffered
by the victim’s brother, German Giovanni Paniagua Morales, as a result of
what happened to her, including the expenses of the transfer to Canada, his
loss of earning for two years in Guatemala as a primary school teacher and,
then, what he would have received as a lawyer and notary for nine years, for
a total of US$708,000.00 (seven hundred and eight thousand United States dollars).
The Commission’s arguments
89. Under the general heading of “pecuniary
damage”, the Commission indicated the following in its briefs of August 31,
1998, and August 2, 1999:
a) with
regard to the loss of earnings of Anna Elizabeth Paniagua Morales, it endorsed
the calculations submitted by the victim’s next of kin and underlined that
the life expectancy of a woman in Guatemala was 46.53 additional years and
that the victim had a daughter of five years of age.
It also established that the victim would have earned US$1,600.00 a
month, for the remaining years of her life expectancy, less 25% for personal
use, and plus interest;
b) with
regard to the other expenses, the Commission also endorsed the information
submitted by the victim’s next of kin.
The State’s arguments
90. The State objected to the claims and calculations
made by the next of kin of Anna Elizabeth Paniagua Morales and the Commission,
making the following observations:
a) with
regard to the victim’s loss of earnings, it claimed that she was not registered
as an expert accountant in the Ministry of Public Finance, which was an essential
requirement for the exercise of that profession in Guatemala and that, according
to information from the Identity Card Registry of the Municipality of Guatemala,
the victim had stated that her profession was “office assistant”, so that
the calculation of loss of earning should be based on that activity. In the
absence of salary records, the minimum salary reported by the Ministry of
Labor and Social Insurance for 1988 should be used and this was Q150.00 (one
hundred and fifty quetzales) a month for an administrative employee.
It also indicated that the victim was not studying economics at the
Universidad de San Carlos at the time of the facts and that the life expectancy
for women who were born during the period 1960 to 1965 was 47.90 years, according
to the National Institute of Statistics of Guatemala; and
b) with
regard to the other expenses incurred by the victim’s next of kin, it claimed
that the alleged expenditure to learn the whereabouts of the victim had not
been adequately proven and that the expenses for the funeral were excessive.
With regard to the expenses defrayed by the Paniagua Morales family,
it had not been shown that these were the immediate consequence of the principal
fact. Lastly, with regard to the expenses of German Giovanni Paniagua
Morales, it stated that they were unreal in Guatemala.
The considerations of the Court
91. Identity card No. 661077 establishes that
the victim was born on July 25, 1962; in other words, she was 25.6 years of
age at the date of her death.
92. On this identity card, it is stated that
her profession was office assistant, but on her death certificate she appears
as a housewife. Yet, in their statements,
her next of kin claim that she was an expert accountant and worked as such.
However, there is no document that certifies in which institution she
trained as an expert accountant. The State does not accept the claim of the
victim’s next of kin because Mrs. Paniagua Morales did not appear as an expert
accountant in the Ministry of Public Finance, which is a requirement to exercise
the profession, and there are no tax declarations to prove this point.
93. The Court cannot accept that the victim
had studied economics at the university, as there are divergencies in the
testimony with regard to the indication that she studied at the Universidad
de San Carlos de Guatemala. Her own mother declared before the Court that
this was not true and this higher education establishment certified that Anna
Elizabeth Paniagua Morales had not been a student in any of its academic units.
94. In these circumstances and owing to the
lack of evidence, it is difficult to foresee that the victim would have been
able to study at the university eventually and complete the program of studies
in economics. The Court is inclined
to accept that the victim worked as a bookkeeper and, consequently, the pecuniary
damage corresponding to the loss of earnings suffered by the victim should
be based on the salary that she earned as a bookkeeper.
95.
The Court observes that the minimum
salary for an administrative employee was Q150.00 (one hundred and fifty quetzales)
at the time the victim died. From
the preceding information, the Court grants the amount of five minimum salaries
for this type of activity in favor of the victim; that is, the sum of Q750.00
(seven hundred and fifty quetzales), which is equivalent to US$294.00 (two
hundred and ninety-four United States dollars) as the monthly salary of a
bookkeeper. The calculation will be made on the basis of 12 salaries a year,
plus the corresponding annual bonuses, in accordance with Guatemalan norms
(supra 87.1.b.). These are the earnings that
the victim would presumably have enjoyed during her life expectancy of 48.33
years, the period from the victim’s age at the time of the facts until the
end of the life expectancy of a woman in Guatemala in 1988 (supra 87.2.d.). 25% must be
deducted from this amount for personal expenses. The resulting amount must then be brought to its value at the date
of the judgment. Consequently, the
amount for this item is US$108.759.00 (one hundred and eight thousand seven
hundred and fifty-nine United States dollars).
96. According to the criteria established by
this Court, the fact that the victim had formed a household and that, as a
result, her daughter, María Elisa Meza Paniagua, was born, makes the latter
the primary successor of any benefit corresponding to Anna Elizabeth Paniagua
Morales (supra 83). Owing to the foregoing, this Court considers
that it is appropriate to grant María Elisa Meza Paniagua, the amount recognized
in the previous paragraph.
*
*
*
97. In her testimony during both the merits
and the reparation stages, María Ildefonsa Morales de Paniagua indicated that
she suffered from various ailments as a result of the death of her daughter,
which required medical treatment; however, she submitted no evidence.
98. The next of kin of Anna Elizabeth Paniagua
Morales have also asked to be reimbursed for the expenses incurred for transport
and visits to public institutions to search for the victim, the funeral and
the expenses corresponding to the transfer of the next of kin to the United
States and Canada. Also, the loss
of earnings and education suffered by the victim’s brother, German Giovanni
Paniagua Morales, owing to his relocation to Canada. On previous occasions, this Court has granted
expenses corresponding to the search for the victim and relocation outside
the country[30].
99. The Court considers that it is not possible
to establish a relationship of cause and effect between the fact and the alleged
consequences suffered by the brother, German Giovanni, with regard to his
occupation and academic preparation. However,
the Court considers that, in real terms, there was a general damage to the
patrimony of the family group owing to what happened to the victim for reasons
that may be attributed to the State, which caused the family financial, health
and other types of problems for which, in fairness, reparation must be made[31].
100. The Court
bears in mind that, as the State indicated, the evidence submitted to support
the calculation of the damage caused to the victim’s family is neither sufficient
nor conclusive, since it is based on various testimonies given by the members
of the family themselves (supra
100). Considering this, the Court,
in fairness, establishes the amount of US$10,000.00 (ten thousand United States
dollars) for this concept, which will be delivered to María Ildefonsa Morales
Chávez, as the victim’s mother, so that she may distribute it in accordance
with the different expenses that the family incurred.
*
*
*
Non-pecuniary damage
The arguments of the next of kin
101. The victim’s next of kin requested the sum
of US$125,000.00 (one hundred and twenty-five thousand United States dollars)
for non-pecuniary damage and indicated that the following factors had been
taken into account when calculating this:
a) the
physical pain and emotional suffering of the victim, caused by the torture
to which she was submitted;
b) the
emotional suffering of the next of kin for the disappearance and subsequent
discovery of the mutilated body of the victim and, in particular, the trauma
that the parents suffered because of the death of their daughter;
c) the
dispersion of the family, since some members have had to flee their country,
seeking asylum in countries such as the United States and Canada;
d) the
trauma suffered by the victim’s daughter, who was four years old at the time
of the facts and, today, is a very introverted person; and
e) the
loss of the son with whom the victim was pregnant when she was killed.
The Commission’s arguments
102. In its briefs of August 31, 1998, and August
2, 1999, the Commission argued that the Paniagua
Morales family should receive an indemnity of US$125,000.00 (one hundred and
twenty-five thousand United States dollars), based on the following factors:
a) that
the clandestine detention, the isolation, the deliberate ill-treatment and
the intention of inflicting grave physical and mental pain, which could be
inferred from the condition in which the victim’s body was found, caused her
physical and mental suffering; and
b) the
psychological suffering and distress that her next of kin experienced, owing
to the fruitless search for the victim, the abandonment of her body on a path
and its identification, during which they could see the severe injuries suffered
by the victim; also, the anguish due to the impunity, and the threats and
attacks suffered by the next of kin and the consequent need for some of them
to leave the country.
The State’s arguments
103. The State indicated that it considered the
sum of US$10,000.00 (ten thousand United States dollars) to be appropriate
for this item; to be delivered to the “victm’s legal heirs.”
The considerations of the Court
104. The Court considers that jurisprudence can
serve as a guide to establish principles in this matter, although it cannot
be invoked as an absolute criterion, since the particularities of each case
must be examined[32].
105. Regarding non-pecuniary damage, international
courts have indicated on many occasions that a judgment of condemnation constitutes,
per se, a form of reparation[33].
However, the Court considers that it is insufficient, bearing in mind the
physical and mental suffering caused to the victim and her next of kin in
a case such as this, and that reparation for this suffering must be made in
an alternative form, by pecuniary compensation, which must be established
in fairness, since non-pecuniary damage cannot be calculated precisely[34].
106. In the case sub judice, the non-pecuniary damage inflicted on the victim is evident,
because it is only human nature that any person subjected to the aggression
and abuse that she endured (unlawful detention, torture and death) experiences
profound physical and mental suffering, which extends to the closest members
of the family, particularly those who had a close affective relationship with
the victim. The Court considers that
no evidence is required to reach this conclusion[35].
107. The
representatives of the victim’s next of kin and the Commission requested the
Court to establish compensatory amounts for the non-pecuniary damage in favor
of the victim’s next of kin. The statements
made before this Court by the next of kin: Blanca Lidia Zamora (sister-in-law),
Alberto Antonio Paniagua Morales (brother) and María Ildefonsa Morales de
Paniagua (mother) on the merits of the case and by the latter together with
the report of Graciela Marisa Guilis at this stage (supra 66.a), reveal the different forms
of suffering that the abduction, torture and death of Anna Elizabeth Paniagua
Morales caused the family. These statements
emphasize the grief caused by the loss of a member of their family, the transfer
of the siblings to Canada and the United States and the disintegration of
the family.
108. In the case of the victim’s parents, it is
not necessary to demonstrate the non-pecuniary damage, because this is presumed[36]. Similarly,
the physical and mental suffering of the victim’s daughter can be presumed.
109. With regard to her siblings, it is necessary
to take into account the degree of relationship and affection that existed
between them. In the case sub judice, it can be seen that there were
close ties between the victim and her brother, Alberto Antonio Paniagua Morales,
and her sister-in-law, Blanca Lidia Zamora de Paniagua, who lived in the same
house. Moreover, with regard to the latter, the Court has taken into consideration
that she participated intensively in the search for and identification of
the mutilated body of her sister-in-law; this is recorded in the judgment
of March 8, 1998, and is an important element of proof for various family
matters.
110. With regard to the victim’s other siblings,
it is evident that they form part of the family[37] and even when they do not appear to have participated
directly in the measures taken in the situation by the mother and by the sister-in-law,
this does not mean that they were indifferent to the suffering caused by the
loss of their sister, particularly when the circumstances of death were so
singularly traumatic. Therefore, considering that they should be beneficiaries of compensation,
the Court must determine the amount according to the principle of fairness
and, consequently, establishes compensatory reparation for non-pecuniary damage
of US$4,000.00 (four thousand United States dollars) for the Paniagua Morales
siblings[38].
111. In view of the foregoing, this Court considers
that it is fair to establish a global amount of US$54,000.00 (fifty-four thousand
United States dollars) for the non-pecuniary damage caused to the victim and
her next of kin. This amount to be distributed as follows: US$20,000.00 (twenty
thousand United States dollars) for María Elisa Meza Paniagua (the victim’s
daughter), US$15,000.00 (fifteen thousand United States dollars) for María
Ildefonsa Morales Chávez (mother), US$5,000.00 (five thousand United States
dollars) for Antonio Paniagua (father), US$5,000.00 (five thousand United
States dollars) for Blanca Lidia Zamora (the victim’s sister-in-law), US$5,000.00
(five thousand United States dollars) for Alberto Antonio Paniagua Morales
(brother), and the sum of US$1,000.00 (one thousand United States dollars)
each, to Blanca Beatriz, Hugo Morani, Elsa Carolina and German Giovanni, all Paniagua Morales.
*
*
*
JULIÁN SALOMÓN GÓMEZ AYALA
Pecuniary
damage
The arguments of the next of kin
112. Under the general heading pecuniary damage,
the next of kin of Julián Salomón Gómez Ayala included two items in their
brief of April 26, 1999:
a) the
loss of earnings of the victim as a car mechanic with a monthly wage of Q1,400.00
(one thousand four hundred quetzales) and an annual income, including periodic
or seasonable income, of Q17,400.00 (seventeen thousand four hundred quetzales),
with an annual increase of Q305.00 (three
hundred and five quetzales); and
b) the
expenses that the next of kin incurred, including: Q5,800.00 (five thousand
eight hundred quetzales) for the search for the victim (daily transport to
Guatemala City and food during about 20 days in the city); Q7,500.00 (seven
thousand five hundred quetzales) for funeral expenses and transport to the
capital city to this end, and Q800.00 (eight hundred quetzales) for medical
consultations for two members of the family, for a total of Q14,100.00 (fourteen
thousand one hundred quetzales). They also included the patrimonial damage
to the household that affected his parents and also his wife and son, because
the victim was responsible for supporting the latter financially and from
time to time sent money to the former. Finally,
they added the loss of the victim’s documents and personal effects such as
a gold medal and clothes.
The Commission’s arguments
113. In its briefs of August 31, 1998, and August
2, 1999, the Commission indicated the following under the general heading
of “pecuniary damage”:
a) regarding
the loss of earnings of Julián Salomón Gómez Ayala, that the life expectancy
for a man in Guatemala was 45.59 additional years; that the victim was working
as a mechanic at the time of the facts and that his companion, his son “of
two and half years of age” and his mother, to whom he provided financial assistance,
depended on his income. In its first
brief, the Commission indicated that, according to International Labor Organization
data, a worker in the transport sector would have had a monthly wage of Q266.66
(two hundred and sixty-six quetzales with sixty-six cents) in 1987, and, therefore,
requested compensation of US$30,528.74 (thirty thousand five hundred and twenty-eight
United States dollars and seventy-four cents). However, in its second brief,
the Commission endorsed the calculation of earnings claimed by the victim’s
next of kin and adjusted them to the criteria established by this Court; for
example, deduction of 25% for personal use, calculation of interest and of
the current value of the corresponding amounts; and
b) with
regard to the other expenses, in its first brief, the Commission indicated
that the victim’s mother and companion searched for him for 12 days, and on
the following day the body appeared and was buried in Guatemala City, so that
his mother had to obtain a judicial order to exhume the body and transfer
the remains to “Suchitepéquez”, which involved expenses of Q4,000.00 (four
thousand quetzales); the next of kin also incurred expenditures of Q7,000.00
(seven thousand quetzales) for various funeral expenses. Lastly, the Commission claimed that the victim was wearing a gold
medal at the time of the facts, and the value of this should be reimbursed.
In its second brief, the Commission endorsed the calculations and figures
submitted by the victim’s next of kin.
The State’s arguments
114. The State contested the claims and calculations
made by the next of kin of Julián Salomón Gómez Ayala and the Commission,
observing the following, among other matters:
a) with
regard to the loss of earnings of the victim, it claimed that, according to
his identity card, he worked as a farm laborer and, owing to the inexistence
of information on the income earned by the victim, the minimum wage for this
activity established by the Ministry of Labor in the respective decree should
be used; for 1988, this was set at the sum of Q135.00 (one hundred and thirty-five
quetzales). It expressed its agreement with the items used by the Commission
to calculate this amount, except for the deduction of 25% a year for personal
expenses, which should be higher, and it rejected the payment of 3% interest
since 1987; and
b) regarding
the other expenses incurred by the victim’s family, it stated that there was
no proof for the calculation of the expenditures made by the next of kin.
It also declared that the expenses for investigating the facts and obtaining
the remains of the victim were excessive; that, regarding the funeral expenses,
there is a contradiction between the information submitted by the Commission
and that presented by the victim’s next of kin. Lastly, with regard to the gold medal, it maintained that “this
item cannot be proved and, therefore, cannot be relevant for the Court.”
The considerations of the Court
115. According to identity card No. 649865, the
victim was born on March 30, 1963; in other words, he was 24.2 years of age
at the date of his death.
116. This identification document records his occupation
as a farm laborer. However, it is
also true that this document was issued on April 10, 1981, so that the Court
considers it possible that the victim had changed his occupation in the following
six years and that the change was not recorded. On the other hand, the brief submitted by the
next of kin states that he was a mechanic and that, as such, he earned a monthly
wage of Q1,400.00 (one thousand four hundred quetzales). The Court considers
that these declarations are not supported by any document that would allow
the Court to establish effectively that this was the victim’s occupation;
consequently, as it is not possible to determine the real wage, owing to lack
of precise information, the minimum salary in force in the country must be
used[39].
117. According to the documentation in the body
of evidence in the case sub judice,
at the time of the facts, the minimum salary for the basic basket, which the
victim would have received, was Q153.00 (one hundred and fifty-three quetzales),
equal to US$60.00 (sixty United States dollars) a month. The calculation will be made on the basis of
12 salaries a year, plus the corresponding annual bonuses, in accordance with
Guatemalan norms (supra 87.1.b). These are the earnings that the victim would
presumably have enjoyed during his life expectancy of 43.98 years, the period
between the victim’s age at the time of the facts and the end of the life
expectancy of a man of 24.2 years of age in Guatemala in 1987 (supra 87.3.d). 25% should be deducted from
this amount for personal expenses. The
resulting amount should be brought to the current value at the date of the
judgment. Consequently, the amount for this item is US$25,855.00 (twenty-five
thousand eight hundred and fifty-five United States dollars).
118. According to the criteria it has established,
this Court considers that the fact that the victim had formed his own household
with Bertha Violeta Flores Gómez and that, as a result, a son, Julio Salomón
Gómez Flores, had been born, makes these two persons beneficiaries of any
compensation granted to the victim. Consequently, the amount of US$25,855.00 (twenty-five
thousand eight hundred and fifty-five United States dollars) must be shared
in equal parts by the victim’s son, Julio Salomón Gómez Flores, and his companion,
Bertha Violeta Flores Gómez.
*
*
*
119. Reimbursement has also been requested for
the expenses defrayed by the next of kin of Julián Salomón Gómez Ayala, for
his exhumation; the corresponding transfer of his remains to “Samayach”; the
funeral expenses; the loss of his personal effects, such as a gold medal,
and the medical expenses incurred by his parents, as a result of what happened
to the victim. The Court considers
that, in real terms, there was general damage to the patrimony of the family
group owing to what happened to the victim, for reasons that may be attributed
to the State, which caused the family financial and other problems for which
reparation must be made. In the case
sub judice, the Court observes that the
family’s requests concerning expenses lack documentary support; however, taking
into account the circumstances of the case, it would seem reasonable that
sufficient evidence does not exist. Therefore,
in fairness, the Court establishes the amount of US$3,000.00 (three thousand
United States dollars).
120. Owing
to the special circumstances of this case, the Court considers it pertinent
to distribute this amount in equal parts between the victim’s parents, Petronilo
Gómez Chávez and Blanca Esperanza Ayala de la Cruz, and his companion, Bertha
Violeta Flores Gómez-.
*
*
*
Non-pecuniary damage
The arguments of the next of kin
121. On April 26, 2000, the victim’s next of kin
indicated that they had suffered various “emotional and biological problems”
that prevented them from “carrying out [their] daily tasks and [...] having
a normal life”, as a result of what happened to Julián Salomón Gómez Ayala;
however, they did not request any amount in compensation.
The Commission’s arguments
122. In its briefs of August 31, 1998, and August
2, 1999, the Commission considered that the Gómez Ayala family should receive
compensation of US$125,000.00 (one hundred and twenty-five thousand United
States dollars), based on the following factors:
a) the
clandestine detention, the isolation, the deliberate ill-treatment and the
intention of inflicting grave physical and mental pain that was evident from
the state in which the victim’s body was found, caused the family acute physical
and mental suffering; and
b) the
psychological suffering and distress that his next of kin experienced, owing
to the fruitless search for the victim, the abandonment of his body on a path
and its identification, during which they could see the severe injuries suffered
by the victim; also, the anguish due to the impunity and the need of the victim’s
companion and child to leave Guatemala City for safety reasons.
The State’s arguments
123. The State indicated that it considered US$10,000.00
(ten thousand United States dollars) to be an appropriate amount, to be delivered
to the “victim’s legal heirs.”
The considerations of the Court
124. This Court has indicated the general criteria
that regulate the reparation of non-pecuniary damage, which should also be
considered in the case of Julián Salomón Gómez Ayala (supra 104 and 105). The non-pecuniary damage
inflicted on the victim is evident, because it is only human nature that any
person subjected to aggression and abuse, such as those he endured (unlawful
detention, torture and death), experiences profound physical and mental suffering,
which extends to the closest members of the family, particularly those who
had a close affective relationship with the victim. The Court considers that no evidence is required
to reach this conclusion
125. The parents, companion and son of the victim,
also experienced the situation mentioned in the previous paragraph and the
Court must presume that the grave violations against Gómez Ayala had repercussions
on them. This presumption has not
been disproved by the State, and therefore it is in order to grant compensatory
damages for non-pecuniary damage to these next of kin.
126. In the case of the victim’s siblings, as members
of the family, it must be considered that they were not indifferent to the
suffering of Julián Salomón Gómez Ayala, despite the objection posed by the
State (supra 110). Consequently,
the victim’s siblings will also be beneficiaries of non-pecuniary damage,
and, in fairness, the Court establishes this in the sum of US$7,000.00 (seven
thousand United States dollars) to be distributed between the Gómez Ayala
siblings.
127. In view of the foregoing and in fairness,
the Court establishes the global amount of US$27,000.00 (twenty-seven thousand
United States dollars) for non-pecuniary damage caused to the victim and his
next of kin. This amount must be distributed
as follows: US$20,000.00 (twenty thousand United States dollars), divided
in equal parts between Bertha Violeta Flores Gómez, the victim’s companion,
Julio Salomón Gómez Flores, his son, and his parents, Petronilo Gómez Chávez
and Blanca Esperanza Ayala de la Cruz. And also US$1,000.00 (one thousand
United States dollars) each for Danilo Abraham, Deifin Olivia, Ingrid Elizabeth,
Israel, Jorge Isaías, Douglas Moises and Lidia Marisa, all Gómez Ayala.
*
*
*
WILLIAM OTILIO GONZÁLEZ RIVERA
Pecuniary
damage
The arguments of the next of kin
128. Under the general heading of pecuniary damage,
the next of kin of William Otilio González Rivera included two items in their
brief of March 23, 1999:
a) the
victim’s loss of earnings as a vegetable seller with a monthly income of about
Q6,000.00 (six thousand quetzales) from his business; calculated from the
time of the facts, this would amount to Q792,000.00 (seven hundred and ninety-two
thousand quetzales). According to
his father’s statement at the public hearing, his monthly income was Q500.00
(five hundred quetzales). In addition, the damage caused to the family patrimony,
because the victim provided financial support to his parents; and
b) other
expenses that the next of kin incurred, in particular, the transfer of the
victim’s body, the funeral expenses and the loss of the victim’s business
and, consequently, the inventory, for a total of Q120,000.00 (one hundred
and twenty thousand quetzales).
The Commission’s arguments
129. Under the general heading of “pecuniary damage”,
the Commission indicated the following in its briefs of August 31, 1998, and
August 2, 1999:
a) regarding
the loss of earnings of William Otilio González Rivera, it underlined that
the life expectancy of a man in Guatemala was 46.53 additional years, that
the victim worked in his own business selling vegetables at the time of the
facts and that his companion, his sons and his parents, to whom he provided
financial assistance, depended on his income.
In its first brief, the Commission indicated that, according to the
International Labor Organization data, in 1988 a worker in the retail/wholesale
sector would have had a monthly wage of Q434.82 (four hundred and thirty-four
quetzales and eighty-two cents). However, as he owned his vegetable stall,
it calculated his income at Q500.00 (five hundred quetzales) and requested
an indemnity of US$51,679.55 (fifty-one thousand six hundred and seventy-nine
United States dollars and fifty-five cents). In its second brief, the Commission
endorsed the arguments of the next of kin and added that the victim’s monthly
income, adjusted to its current value was Q6,000.00 (six thousand quetzales).
From the amount resulting from the previous calculation, 25% should be deducted
for personal use and the corresponding interest should be added; and
b) with
regard to other expenses, the Commission indicated that the victim’s father
went to Guatemala City to search for his son, to lodge a complaint about the
abduction, to claim the remains of the victim and to transfer the body to
Jutiapa; that he defrayed the funeral expenses which amounted to Q1,000.00
(one thousand quetzales); and that the victim lost his vegetable stall and
also the money that he was carrying, for a total of
Q7,000.00 (seven thousand quetzales).
In its brief with additional comments, the Commission endorsed the
arguments of the next of kin and supported the amount that they had indicated,
that is a total of Q120,000.00 (one hundred and twenty thousand quetzales).
The State’s arguments
130. The State contested the claims and calculations
made by the next of kin of William Otilio González Rivera and the Commission,
observing the following, among other matters:
a) regarding
the victim’s loss of earnings, it stated that he worked as a farm laborer,
because he did not appear as a tradesman in the Mercantile Registry of the
Ministry of Economy, there were no tax declarations in the Ministry of Public
Finance and no record of his tax identification number, nor was it possible
to establish whether the victim effectively owned a stall for selling vegetables.
Therefore, his occupation as a farm laborer should apply with the minimum
salary of Q199.00 (one hundred and ninety-nine quetzales) during 20.20 years
as the life expectancy (from 26 to 46.20 years of age); it rejected the amount
stated by the next of kin, as there was no supporting evidence; and
b) with
regard to the other expenses that the victim’s family incurred, it stated
that there was no evidence to support the calculation of the expenses that
the victim’s next of kin had made under this heading. As for the funeral expenses,
it stated that there was a contradiction between the data provided by the
next of kin and the Commission, and considered that the amount indicated by
the Commission should apply, which was Q1,000.00 (one thousand quetzales).
The considerations of the Court
131. William Otilio González Rivera was born on
June 12, 1961, according to identity card No. 15077; therefore he was 26.7
years of age at the time of his death (supra
87.4.a). This document, which was
issued on February 22, 1980, states that his occupation was farm laborer;
however, this Court considers that it is reasonable that, over eight years,
the victim could have changed his occupation and that there was no record
of this situation. In his testimony,
his father, Salvador González Najarro, stated that the victim had a vegetable
stall in the capital, and worked in this business.
The State objects to recognizing that the victim was a retail salesman
by occupation. It should be added
that he carried out his activity informally, and for this reason it was not
registered.
132. The judgment of March 8, 1998, established
that he was detained (together with Pablo Corado Barrientos) (supra 87.4.a) at a market stall in Guatemala
City. In view of these antecedents, the Court accepts the minimum salary for
an informal salesman for the victim, which amounts to Q211.20 (two hundred
and eleven quetzales and twenty cents), which equals US$82.82 (eighty-two
United States dollars and eighty-two cents). The calculation will be made on the basis of
12 salaries a year, plus the corresponding annual bonuses, in accordance with
Guatemalan norms (supra 87.1.b).
These are the earnings that the victim would presumably have enjoyed during
his life expectancy of 42.37 years, the period between his age at the time
of the facts and the end of the life expectancy of a man in Guatemala in 1988
(supra 87.4.c). 25% must be deducted from
this amount for personal expenses. The
resulting amount must be brought to its value at the date of the judgment. Consequently, the amount under this heading
is US$32,545.00 (thirty-two thousand five hundred and forty-five United States
dollars).
133. In this case, there are contradictions about
who should be considered the beneficiaries of the amounts corresponding to
the damage suffered by the victim. On
the one hand, based on information provided by the victim’s next of kin, the
Commission indicated that William Otilio González Rivera had a son.
On the other hand, in their brief on reparations the next of kin refer
to pecuniary and non-pecuniary damages suffered by the parents and, in general,
by the next of kin, without mentioning the existence of a descendant.
Lastly, during his statement at the public hearing on reparations,
the victim’s father mentioned the victim’s parents and siblings, without identifying
the latter, as beneficiaries. Accordingly,
this Court considered it appropriate to request the next of kin to provide
proof of the relationship of the siblings, son or next of kin who lived with
the victim at the time of the facts, and, as a result, the next of kin submitted
five birth certificates of the siblings of William Otilio González Rivera
(supra 62), and indicated that they were
“the only documents that they possess[ed].”
134. In view of the foregoing and in accordance
with its criteria, this Court considers that, although the existence of an
alleged son of the victim has not been confirmed, should this son exist, he
should be awarded the totality of the indemnity to compensate the victim’s
loss of income.
135. In view
of the findings of the previous paragraph, the victim’s next of kin and the
Commission must provide the State with any information they have, in order
to identify the son of William Otilio González Rivera, so that the State may,
in turn, verify his existence. If,
within one year from the date of notification of this judgment, the son has
not been identified, the victim’s parents will be the beneficiaries of the
compensation indicated in the previous paragraph.
*
*
*
136. In his testimony during this reparations stage,
Salvador González Najarro indicated that, as a result of the death of his
son, he and his wife, María Asunción Rivera Velásquez, suffered a series of
illnesses that required medical treatment; however, there is no supporting
evidence on this point.
137. Reimbursement of the expenses defrayed by
the next of kin of William Otilio González Rivera in their search for the
victim, the exhumation, transfer of his remains to Jutiapa, funeral expenses
and the loss of the victim’s business and the merchandise in it at the time
has also been requested. In the case
sub judice, the Court considers that it
is not possible to establish a relation of cause and effect between the event
that occurred to the victim and the alleged loss of the stall and merchandise.
138. With regard to the other expenses, the Court
considers that, in real terms, a general patrimonial damage was caused to
the family group owing to what happened to the victim, for reasons that may
be attributed to the State. These
generated financial, health and other types of problems to the family for
which, based on the principle of fairness, reparation should be made, even
though the evidence submitted to support the calculation of the damage caused
is insufficient and there are contradictions in the amounts indicated. Therefore, the Court proceeds to establish
a fair amount of US$2,000.00 (two thousand United States dollars), to be handed
to Salvador González Najarro, as the victim’s father, so that he may proceed
to distribute this amount in accordance with the expenses that the family
incurred.
*
*
*
Non-pecuniary
damage
The arguments
of the next of kin
139. In their brief of March 23, 1999, and during
the public hearing (supra 23 and
41), the victim’s next of kin indicated that they had been affected by the
treatment that he received and by his death.
They therefore requested the amount of Q4,000,000.00 (four million
quetzales) as compensation under this heading.
The Commission’s arguments
140. In its initial brief, the Commission requested
US$100,000.00 (one hundred thousand United States dollars) for the non-pecuniary
damage suffered by both the victim and his next of kin. However, in its supplementary brief, the Commission
asked that a fair amount should be established, which took into account the
information presented by the victim’s next of kin and the evidence submitted
by the Commission and that the amount of US$100,000.00 (one hundred thousand
United States dollars) requested “should be considered a minimum”. This request
was based on the following factors:
a) the
damage produced by the physical and mental trauma suffered by the victim owing
to the abduction, signs of beating, cuts and burns that were present on different
parts of his body, including the face, and his subsequent assassination; and
b) the
psychological suffering and distress that his next of kin experienced owing,
on the one hand, to the unsuccessful search for the victim, the abandonment
of his body on a path and the subsequent identification, at which time they
could observe the severe injuries suffered by the victim and, on the other,
to the impunity that followed the events.
The State’s arguments
141. The State indicated that, under this heading,
it considered the amount of US$10,000.00 (ten thousand United States dollars)
to be appropriate; to be given to the “victim’s legal heirs.”
The considerations of the Court
142. This Court has already indicated the general
criteria that regulate reparation for non-pecuniary damage (supra 104 and 105), and these must taken
into consideration also in the case of William Otilio González Rivera. Since he was subjected to aggression and abuse
(unlawful detention, torture and death), it is natural that he experienced
profound physical and mental suffering, which extends to the closest members
of his family, particularly those who had a close affective relationship with
the victim. The Court considers that
no evidence is required to reach this conclusion
143. The victim’s parents and alleged son experienced
the situation mentioned in the previous paragraph and the Court must presume
the repercussions that the grave violations committed against González Rivera
had on them. This presumption has
not been disproved by the State and, therefore, it is in order to grant compensatory
damages for non-pecuniary damage to the said next of kin. However, the identity of the son of William
Otilio González Rivera has not been proved during this proceeding; consequently
his existence must be authenticated before the State, so that the reparations
ordered may be made effective (supra
134 and 135).
144. Regarding the victim’s siblings, as members
of the family, it must be considered that they were not be indifferent to
the suffering of William Otilio González Rivera, despite the objection posed
by the State (supra 110). Therefore, based on the principle of fairness,
the Court establishes a compensation for non-pecuniary damage of US$5,000.00
(five thousand United States dollars) for the González Rivera siblings.
145. In view of the foregoing, the Court considers
that the total amount of US$25,000.00 (twenty-five thousand United States
dollars) is fair reparation for the non-pecuniary damage suffered by the victim
and his next of kin. This amount must
be distributed as follows: US$20,000.00 (twenty thousand United States dollars)
divided equally between the parents and alleged son of William Otilio González
Rivera, taking into account the considerations in paragraphs 133 to 135; in
other words, should it be impossible to determine the existence of and identify
the said son within one year, the amount that corresponds to him will proportionately
increase the compensation of the victim’s parents; and the amount of US$1,000.00
(one thousand United States dollars) to each of the siblings, Santos Hugo,
José Alfredo, Julio Moises, Anatanahel and Leydi Rosibel, all González Rivera.
*
*
*
PABLO CORADO BARRIENTOS
Pecuniary damage
The arguments of the next of kin
146. Regarding “pecuniary damage”, the next of
kin of Pablo Corado Barrientos endorsed the arguments of the Commission and
then included two items in their communication of June 11, 1999:
a) the
victim’s loss of earnings as a vegetable seller in Guatemala City. Lacking evidence about the victim’s income,
they stated that they endorsed the calculation of the amount made by the Commission;
and
b) with
regard to other losses incurred by the next of kin, they indicated the financial
support that his mother and his brother received from the victim and that,
as a direct consequence of the facts, his mother had to work as a maid to
provide the income that the victim had given them. They also indicated that what happened to Pablo Corado Barrientos
led to his brother abandoning school and also to the abandonment of the project
to build a house and expand the vegetable selling business. Owing to the foregoing, they considered that
50% should be added to the amount claimed by the Commission for the victim’s
loss of earnings, giving a total of US$24,895.25 (twenty-four thousand eight
hundred and ninety-five United States dollars and twenty-five cents).
The Commission’s arguments
147. In its briefs of August 31, 1998, and August
2, 1999, the Commission indicated that two items should be included under
the general heading of “pecuniary damage”:
a) regarding
the loss of earnings of Pablo Corado Barrientos, it underlined that the life
expectancy of a man in Guatemala was 45.59 years, that the victim worked in
his own business selling vegetables at the time of the facts and that his
mother and one brother, to whom he provided financial assistance, depended
on his income. In its first brief,
the Commission indicated that, according to the International Labor Organization
data, in 1988, a worker in the retail/wholesale sector would have had a monthly
wage of Q434.82 (four hundred and thirty-four quetzales and eighty-two cents),
and requested a compensation totaling US$49,791.85 (forty-nine thousand seven
hundred and ninety-one United States dollars and eighty-five cents). In its
supplementary brief, the Commission indicated that this calculation represented
a “minimum threshold, because it did not have more specific information at
this time”; and
b) with
regard to other losses suffered by the next of kin, the Commission indicated
that it had very little information.
The State’s arguments
148. The State contested the claims and the calculations
made by the next of kin of Pablo Corado Barrientos and the Commission, observing
the following, among other matters:
a) with
regard to the victim’s loss of earnings, it was not possible to confirm that
his activity was that of a retailer, because this is not recorded in any public
register, and he appears as a farm worker on his identity card, which is the
only existing document. Therefore,
it considers that the salary established by the Ministry of Labor and Social
Insurance for the latter activity should be applied: this is Q199.80 (one
hundred and ninety-nine quetzales and eighty cents); also, according to the
National Institute of Statistics of Guatemala, the life expectancy for men
born between 1960 and 1965 was 46.20 years; and
b) regarding
the household’s other losses, the State declared that the alleged income of
the next of kin was not duly proved; that a relation of cause and effect had
not been established between the facts and the household’s loss of support;
and that this item was not included in the reparations brief.
The considerations of the Court
149. According to the birth certificate of Pablo
Corado Barrientos and the certification of his identity card issued by the
Municipal Secretary of the Public Registry of the town of El Adelanto, Department
of Jutiapa, on May 19, 2000, the victim was born on March 10, 1963; since
the victim died on February 10, 1988, according to the judgment on merits
delivered by this Court, he was 24.9 years of age at the time of the facts.
150. This Court considers that although the identity
document, issued in 1982, shows his occupation as farm laborer, it is reasonable
that, over six years, the victim could have changed his occupation and that
there was no record of this situation. Added to this, his activity was of an informal nature, so that it
was not registered.
151. The judgment of March 8, 1998, established
that he was detained (together with William Otilio González Rivera) (supra 87.5.a) at a vegetable stall in a
market in Guatemala City. In these circumstances, the Court considers that,
in view of the victim’s occupation, an amount of Q211.20 (two hundred and
eleven quetzales and twenty cents), equal to US$82.82 (eight-two United States
dollars and eight-two cents) should be accepted; this amount corresponds to
the minimum wage of an informal salesman.
The calculation will be made on the basis of 12 salaries a year, plus
the corresponding annual bonuses, in accordance with Guatemalan norms (supra 87.1.b). These are the earnings that
the victim would presumably have enjoyed during his life expectancy of 43.98
years, the period from his age at the time of the facts until the end of the
life expectancy of a man in Guatemala in 1988 (supra 87.5.c). 25% must be
deducted from this amount for personal expenses. The resulting amount must
be brought to its value at the date of the judgment. Consequently, the amount
under this heading is US$32,814.00 (thirty-two thousand eight hundred and
fourteen United States dollars).
152. In view of the foregoing, and since it is
impossible to grant the victim himself compensation for the damage he suffered,
it is in keeping with the criteria of this Court (supra 84) to grant the amount of US$32,814.00 (thirty-two thousand
eight hundred and fourteen United States dollars) to the mother of Pablo Corado
Barrientos (supra 87.5.1) as the
beneficiary of the victim’s loss of earnings.
*
*
*
153. Compensation has also been requested for the
various injuries suffered by the next of kin of Pablo Corado Barrientos (supra 146.b), although no specific item
of expenditure has been established or proven in relation to the facts that
occurred to the victim. In fairness,
this Court proceeds to establish an amount of US$2,000.00 (dos thousand United
States dollars) for expenses, to be given to Juana Barrientos Valenzuela,
as the victim’s mother.
*
*
*
Non-pecuniary damage
The arguments of the next of kin
154. In their brief of June 11, 1999, the victim’s
next of kin claimed that it was difficult to estimate the non-pecuniary damage
caused by a crime such as that suffered by the victim, which has remained
in the most complete impunity. However, they asked that the circumstances of the facts should be
considered, together with the gravity of the violations and the suffering
caused to the victim. Considering
this, and also that the next of kin do not know the whereabouts of the victim’s
remains, they requested a total of US$200,000.00 (two hundred thousand United
States dollars).
The Commission’s arguments
155. The Commission requested US$100,000.00 (one
hundred thousand United States dollars) for the non-pecuniary damage suffered
by both the victim and his next of kin, owing to the following factors:
a) the
damage produced by the physical and mental trauma that the victim suffered
owing to the abduction, beating, cuts and burns that he presented in different
parts of his body, and his subsequent assassination; and
b) the
psychological suffering and distress suffered by the next of kin, due to the
unsuccessful search for the victim and not knowing who had perpetrated this
harm and why, a situation that continues to this day.
The State’s arguments
156. The State indicated that it considered the
amount of US$10,000.00 (ten thousand United States dollars) to be appropriate;
to be delivered to the “victim’s legal heirs.”
The considerations of the Court
157. This Court has indicated the general criteria
that regulate reparation of non-pecuniary damage, which should also be considered
in this particular case (supra 104
and 105). The non-pecuniary damage inflicted on the victim is evident, because
it is only human nature that any person subjected to acts of aggression and
abuse, such as those he endured (unlawful detention, torture and death), experiences
profound physical and mental suffering, which extends to the closest members
of the family, particularly those who had a close, affective relationship
with the victim. The Court considers
that no evidence is required to reach this conclusion.
158. The victim’s mother experienced the situation
mentioned in the previous paragraph, and the Court must presume that the grave
violations committed against Pablo Corado Barrientos had repercussion on her.
This presumption has not been disproved by the State, so that it is
in order to establish compensatory damages for non-pecuniary damage for his
mother and the Court considers that US$20,000.00 (twenty thousand United States
dollars) is a fair amount. As it is impossible to grant the victim himself
this compensation, this amount must be delivered to his mother, Juana Barrientos
Valenzuela.
159. With regard to the victim’s siblings, the
Court observes that they did not participate in the search for the victim’s
body, or obtaining it, or in his subsequent burial, according to evidence
in the proceeding on merits before this Court. However, based on the principle
of fairness, the Court establishes reparation for non-pecuniary damage of
US$2,000.00 (two thousand United States dollars) for the Corado Barrientos
siblings (supra 110).
160. In view of the foregoing, this Court, in fairness,
establishes a total amount of US$22,000.00 (twenty-two thousand United States
dollars) for the non-pecuniary damage caused to the victim and his next of
kin. This amount must be distributed as follows: US$20,000.00 (twenty thousand
United States dollars) to his mother, Juana Barrientos Valenzuela, and US$1,000.00
(one thousand United States dollars) to each of his siblings, Francisca and
Tino Corado Barrientos.
*
*
*
MANUEL DE JESÚS GONZÁLEZ LÓPEZ
Pecuniary
damage
The arguments of the next of kin
161. Under the general heading of pecuniary damage,
the next of kin included two items in their brief of September 1, 1998:
a) the
loss of earnings of Manuel de Jesús González López during 41.57 years (from
29 to 70.57 years of age) as a car mechanic, with a monthly income of approximately
Q598.82 (five hundred and ninety-eight quetzales and eight-two cents) plus
two annual bonuses equal to two months wages, which would add up to an annual
salary at the time of the facts of Q8,400.00 (eight thousand four hundred
quetzales) “or its equivalent of US$5,500.00” (five thousand five hundred
United States dollars) in 1998. In
this respect, it indicated that the figure requested was very conservative,
because he had just received an increase in salary at work and was studying
human relations which would have further improved his income; and
b) the
expenses that the next of kin incurred, including travel expenses for the
victim’s wife to travel from Guatemala to Los Angeles, United States, amounting
to US$1,620.00 (one thousand six hundred and twenty United States dollars).
In a subsequent brief and during the public hearing, the representative of
the next of kin explained that the amount was US$1,720.00 (one thousand seven
hundred and twenty dollars) and not US$1,620.00 (one thousand six hundred
and twenty United States dollars) as had been reported in the initial brief.
The Commission’s arguments
162. In its briefs of August 31, 1998, and August
2, 1999, the Commission indicated the following under the general heading
of pecuniary damage:
a) regarding
the loss of earnings of Manuel de Jesús González López, it underlined that
the life expectancy of a man in Guatemala at the time of the facts was 46.53
additional years, and that the victim worked as a mechanic at the time of
the facts. In its second brief, the Commission endorsed the income claimed
by the next of kin and adjusted it to the criteria established by this Court,
in particular, with regard to the deduction of 25% for personal use and the
addition of interest; and
b) with
regard to the other expenses, the Commission indicated in its first brief
that, on the day following the victim’s abduction, his wife took steps to
lodge a complaint about the fact before the State institutions, she started
the search, identified the body when it appeared, and made the burial arrangements. The Commission also claimed that some time
later she was robbed and then decided to leave Guatemala. The Commission endorsed
the amounts indicated by the victim’s next of kin under this heading.
The State’s arguments
163. The State contested the claims and the calculations
made by the next of kin of Manuel de Jesús González López and the Commission,
observing the following, among other matters:
a) regarding
the victim’s loss of earnings, it indicated that no evidence had been submitted
to prove that the victim was an experienced mechanic and that, to the contrary,
his identity card established his occupation as that of a laborer; accordingly,
it requested that the minimum salary for the construction and repair industry
should be applied, which corresponded to Q180.00 (one hundred and eighty quetzales)
a month in 1988 for 14.6 years as the life expectancy (from 29.1 to 43.70
years of age); and
b) regarding
the other expenses that the victim’s family had incurred, it rejected the
connection made by the Commission between the robbery suffered by his surviving
wife and the violations suffered by the victim, since they were unrelated
events. It also declared that the
Court should apply the principle of prudence, because it did not have sufficient
documents or evidence about the funeral expenses and the need for the victim’s
wife to move to the United States.
The considerations of the Court
164. Identity card No. 590279 of Manuel de Jesús
González López establishes December 29, 1958, as his date of birth and, according
to evidence submitted to this Court in the judgment on merits, he was detained
by agents of the State on February 11, 1988, and found dead on February 13
that year, which suggests that the victim was 29.1 years of age at the time
of the facts (supra 87.6.d).
165. The Court observes that although his identity
card gives his profession as a laborer, the victim’s death certificate and
the birth certificates of his three children, documents that are also issued
by State institutions, state his occupation to be a mechanic. This information concurs with the declarations
of his wife, at both the hearing on merits and the hearing on reparations.
Lastly, this status is supported by a certificate issued by Ramiro
R. Velásquez on August 31, 1998, which establishes that the victim worked
for the company Gustavo Molina & Cía. Ltda. and that for the month before his
death, January 1988, he had earned a salary of Q598.82 (five hundred ninety-eight
quetzales and eight-two cents).
166. Based on these antecedents, the Court recognizes
the amount of Q598.82 (five hundred ninety-eight quetzales and eight-two cents),
equal to US$234.75 (two hundred and thirty-four United States dollars and
seventy-five cents), as the monthly salary of a mechanic. The calculation will be made on the basis of
12 salaries a year, plus the corresponding annual bonuses, in accordance with
Guatemalan norms (supra 87.1.b). These are the earnings that the victim would
presumably have enjoyed during his life expectancy of 40.05 years, the period
from his age at the time of the facts until the end of the life expectancy
of a man in Guatemala in 1988 (supra
87.G.d). 25% of this amount must be deducted for personal expenses. The resulting amount must be brought to its
value at the date of the judgment. Consequently,
the amount under this heading is US$78,372.00 (seventy-eight thousand three
hundred and seventy-two United States dollars).
167. The compensatory amount established in the
previous paragraph shall be delivered to be distributed as follows (supra 83): half the amount to his wife,
María Elizabeth Chinchilla, equal to US$39,186.00 (thirty-nine thousand one
hundred and eight-six United States dollars) and the other half, that is,
US$39,186.00 (thirty-nine thousand one hundred and eight-six United States
dollars) to be shared equally between the victim’s three children: Karen Paola,
Silvia Argentina and Manuel Alberto, all Gonzalez Chinchilla; in other words,
US$13,062.00 (thirteen thousand and sixty-two United States dollars) each.
*
*
*
168. With regard to the expenses incurred by the
victim’s next of kin as a result of the complaint lodged before the State
institutions, the search for the victim and the corresponding burial, the
Court, in fairness, will consider a compensatory amount for this effect, since
the Commission did not calculate a determined amount and there is insufficient
evidence on this point.
169. As for the robbery of the González Chinchilla
family’s belongings, it is noted that Mrs. Chinchilla herself, when giving
testimony before this Court, doubted that there was a connection between this
event and what happened to her husband, so that this claim is no longer valid.
Regarding the wife of the victim’s move to the United States, this Corte considers
that there is a relation of cause and effect between what happened to the
victim and this fact.
170. In view of the foregoing, the Court establishes
the fair amount of US$3,000.00 (three thousand United States dollars) for
María Elizabeth Chinchilla.
*
*
*
Non-pecuniary damage
Arguments of the victim’s next of kin
and the Commission
171.
The victim’s next of kin and the
Commission requested the amount of US$110,000.00 (one hundred and ten thousand
United States dollars) for non-pecuniary damage, based on the following factors:
a) the
clandestine detention, isolation, deliberate ill-treatment and intention of
causing grave physical and mental pain, which was reflected in the state in
which the victim’s body was found (signs of hanging, cigarette burns on all
parts of the body and profound wounds in the face), caused him acute physical
and mental suffering; and
b) the
psychological suffering and distress that the next of kin suffered because
the victim was unlawfully detained in front of his wife; the search for Mr.
González López was unsuccessful; the body of the victim showed signs of abuse;
the children have suffered a great deal owing to the loss of their father;
and the continuing impunity in this case.
All this, added to the mother’s move to the United States and, recently,
that of one of her daughters also, led to emotional damage to both his wife
and his three children.
The State’s arguments
172. The State indicated that it considered US$10,000.00
(ten thousand United States dollars) to be an appropriate amount; to be delivered
to the “victim’s legal heirs.”
The considerations of the Court
173. The general criteria established by this Court
for the reparation of non-pecuniary damage (supra 104 and 105) will be applied in the case sub judice. The non-pecuniary damage inflicted on the victim is evident,
since he was unlawfully detained, tortured and assassinated. The Court considers that no evidence is required
to reach the conclusion that a human being in this situation experiences intense
physical and mental suffering and it recognizes that this suffering extends
to the closest members of his family, particularly those who were in close,
affective contact with the victim.
174. The victim’s wife and children experienced
such circumstances; in the judgment on merits, it was established that the
victim was detained and abused in front of his wife (supra 70); that she carried out an intensive search and then found
the victim’s mutilated body; subsequently and owing to what had happened to
her husband, she was forced to abandon her country, leaving her three minor
children in the care of their grandmother, so that they not only lost their
father, but were also deprived of their mother (supra 87.6.1.b and 65.g), who, during all these years and at great
personal cost, has continued to support her children, even though she has
been unable to see them for a long time.
175. In view of the foregoing, the Court establishes,
in fairness, a total amount of US$40,000.00 (forty thousand United States
dollars) for non-pecuniary damage, to be delivered in equal parts to María
Elizabeth Chinchilla, the victim’s wife and to his children, Karen Paola,
Silvia Argentina and Manuel Alberto, all González Chinchilla; in other words,
US$10,000.00 (ten thousand United
States dollars) each.
*
*
*
ERICK LEONARDO CHINCHILLA
The arguments of the next of kin
176. In their brief of April 30, 1999, the next
of kin indicated that, as a result of the facts, the victim’s mother had suffered
physical and mental damage that prevented her from continuing with the bakery
that supported the family and of which the victim was the administrator. Owing to this, they requested an amount of
US$35,000.00 (thirty- five thousand United States dollars). Also, the lack of investigation into the victim’s
disappearance has seriously affected the physical and mental health of the
next of kin in general, and they therefore requested US$15,000.00 (fifteen
thousand United States dollars) for the mother and US$10,000.00 (ten thousand
United States dollars) for each of the victim’s four siblings.
The Commission’s arguments
177. In its briefs of August 31, 1998, and August
2, 1999, the Commission indicated that, owing to the violation declared by
the Court with regard to this victim, that is, for not initiating the corresponding
judicial proceeding and obtaining an effective official investigation into
the victim’s assassination, a general compensatory amount of US$15,000.00
(fifteen thousand United States dollars) should be granted.
The State’s arguments
178. In its communication of June 13, 2000, the
State declared that it did not share the Commission’s opinion, because the
State’s obligation did not entail a specific positive result to an investigation
into the death of the victim, but to “provide legal methods to prosecute the
crime.” However, the State would agree to establishing the amount of the compensation
at US$5,000.00 (five thousand United States dollars).
The considerations of the Court
179. In its judgment on merits, this Court considered
that there was insufficient evidence to attribute responsibility for the death
of Erick Leonardo Chinchilla to the State[40]. Therefore, with regard to this victim, the Court
is unable to condemn the State to pay compensations for facts that do not
relate to the declared violation of Article 8(1) of the Convention, which
is the case of the next of kin’s request for reimbursement for the loss of
the family business.
180. Owing to the nature of the declared violation
in this case, the Court considers, in fairness, that it is appropriate to
establish a compensation in the sum of US$8,000.00 (eight thousand United
States dollars), an amount to be delivered to the mother of Erick Leonardo
Chinchilla, María Luisa Chinchilla Ruano.
181. As for the dispute between the parties about
the investigation in the judicial sphere, this Court will refer to that point
in the section corresponding to other forms of reparation (infra X).
*
*
*
OSCAR VÁSQUEZ AND AUGUSTO ANGÁRITA
RAMÍREZ
The victim’s arguments
182. The next of kin of Oscar Vásquez agreed with
the facts set out by the Commission (infra
183), and added that the victim’s son, who gave testimony before the Inter-American
Court, was unlawfully detained and severely beaten by a group of armed men,
which caused him to flee the country. Also, “other members of the family abandoned their home” for safety
reasons. Consequently, the family
requested a compensation of US$25,000.00 (twenty-five thousand United States
dollars).
The Commission’s arguments
183. The Commission requested a general compensation
of US$25,000.00 (twenty-five thousand United States dollars) and US$20,000.00
(twenty thousand United States dollars), respectively, for the victims, Oscar
Vásquez and Augusto Angárita Ramírez, owing to their unlawful detention and
the inhuman treatment that “they suffered at the hands of agents of the Treasury
Police.” It also underlined the threats
and attacks suffered by both Oscar Vásquez and his family, and “the fact that
[Vásquez] was assassinated just before the final hearing [before the Commission]
prior to the preparation of the report under Article 50” of the American Convention.
The State’s arguments
184. The State indicated that it considered US$10,000.00
(ten thousand United States dollars) to be an appropriate amount “in both
cases” to reimburse the damage that the State might have caused the victims.
The considerations of the Court
185. With regard to Augusto Angárita Ramírez, in
the judgment on merits of March 8, 1998, the Court considered that his right
to personal freedom had been violated (Article 7 of the Convention) owing
to his detention, and also his right to humane treatment (Article 5(1) and
5(2) of the Convention), since he had been subjected to cruel, inhuman and
degrading treatment.
186. Regarding Oscar Vásquez, the Court did not
consider that there had been a violation of his personal liberty (Article
7 of the Convention); in the said judgment, it established that the State
violated his right to humane treatment (Article 5(1) and 5(2) of the Convention).
Furthermore, from the body of evidence concerning Oscar Vásquez which appears
in the file, there is no indication that there is a relation of cause and
effect between the violation declared by the Court and the damage claimed
by the victim’s next of kin, such as the detention of his son and the latter’s
move.
187. In view of the foregoing, the Court considers
that in the cases of Augusto Angárita Ramírez and Oscar Vásquez, a compensation
should be determined for the damage that the victims suffered owing to the
violations of their rights by agents of the State. This Court considers that
it is fair to establish a compensatory amount of US$8,000.00 (eight thousand
United States dollars) for each of them (supra 83). This compensation shall be given directly to the victims,
or their heirs, if applicable.
188. The Court observes that Augusto Angárita Ramírez
did not appear before the Court in person to submit his claims, despite the
measures taken to locate the victims in the case sub judice in Guatemala (supra
13).
*
*
*
DORIS TORRES GIL AND MARCO ANTONIO
MONTES LETONA
The Commission’s arguments
189. The Commission requested US$15,000.00 (fifteen
thousand United States dollars) as compensation for each of them, based on
the fact that they had been arbitrarily detained, so that they had the right
to their lost salaries and compensation for damage to their reputation and
for the emotional effects of the violations.
The State’s arguments
190. The State indicated that the fact that these
persons were acquitted in the domestic sphere constitutes the principal reparation
that they could obtain. However, it established that, in view of the financial
losses and damage that were caused, it considered it appropriate to grant
a compensatory amount of US$5,000.00 (five thousand United States dollars).
The considerations of the Court
191. Although measures were taken to locate the
victims in this case, Doris Torres Gil and Marco Antonio Montes Letona, in
Guatemala (supra 13), these persons
did not appear personally and neither did they submit their claims to the
Court.
192. With regard to Doris Torres Gil and Marco
Antonio Montes Letona, in the judgment on merits of March 8, 1998, the Court
considered that their right to personal liberty (Article 7 of the Convention)
had been violated owing to their detention.
And although they were later acquitted in the proceeding before Guatemalan
justice, this does not eliminate the violation of the said right.
193. In view of the foregoing, the Court considers
that it is fair to establish the amount of US$3,000.00 (three thousand United
States dollars) for Doris Torres Gil and Marco Antonio Montes Letona as compensation
for the damage caused to each of them (supra 83). The victims or their heirs,
if applicable, shall receive this compensation directly.
x
Other forms
of reparation
The arguments of the next of kin and the Commission
194. Both the Commission and the next of kin of
Erick Leonardo Chinchilla and Julián Salomón Gómez Ayala requested, as an
essential part of the reparation, that the State should conduct a real and
effective investigation to identify the persons responsible for the violations
and, eventually, punish them. During the public hearing, the Commission added
that “a central and essential component of [the] reparation is that justice
should be done, that there should be investigation and punishment” and, with
regard to the caso sub judice, it
is important that the State take some action against the 27 persons accused
in the domestic sphere. Lastly, the
Commission observed that the State had taken no action with regard to the
assassinations of the witnesses related to the case.
195. The Commission also indicated that the State
should establish and guarantee the operation of a register of detentions.
This register should include: identification of those detained, reason
for the detention, competent authority, hour of entry and of liberation, and
information on the arrest warrant.
196. Moreover, the Commission requested the State
to provide the necessary resources to locate, exhume and transfer the remains
of Pablo Corado Barrientos to the village where his family lives in the Department
of Jutiapa.
The State’s arguments
197. Guatemala recognized that State officials
“failed to conduct an exhaustive and impartial investigation”; however, it
indicated that it is holding discussions with the petitioners with a view
“to undertaking actions in order to reopen the pertinent judicial proceedings,
in those cases where there are no antecedents and/or rechannel those that
have already been opened when the State of Guatemala has omitted an adequate
judicial investigation.” It also expressed
its agreement to providing reparations of a “pecuniary or other nature in
those cases that merit this,” such as “a public declaration of reprobation
for practices that violate human rights, the recovery of the memory of the
victims, the investigation into the facts that led to the human rights violations
and the prosecution of those who are found responsible for these regrettable
facts.”
The considerations of the Court
198. The American Convention guarantees access
to justice to all persons in order to protect their rights and it is the obligation
of the States Parties to prevent, investigate, identify and punish the authors
of human rights violations and their accomplices[41].
199. In accordance with the sixth operative paragraph
of the judgment on merits delivered on March 8, 1998, the State of Guatemala
must conduct an effective investigation to identify the persons responsible
for the human rights violations declared in this judgment and punish them,
when appropriate. The Court has stated
that the obligation concerning the guarantee and effectiveness of the rights
and freedoms established in the Convention is autonomous and differs from
the obligation to repair. This is
because, while the State is obliged to investigate the facts and punish those
responsible, the victim or, in his absence, his next of kin may waive the
measures available to them to repair the damage caused[42]. In brief, the State that leaves human rights violations
unpunished violates its obligation to guarantee the free and full exercise
of the rights of the persons subject to its jurisdiction[43].
200. On repeated opportunities, this Court has
insisted on the right of the victims’ next of kin to know what happened[44], and the identity of the State agents responsible
for the facts[45]. As this Court has indicated, “the investigation
of the facts and the punishment of those responsible, [...] is an obligation
that corresponds to the State whenever a human rights violation has occurred
and this obligation must be complied with seriously and not as a mere formality”[46].
201. As the Court stated in the merits stage of
this case, impunity signifies “the total lack of investigation, prosecution,
capture, trial and conviction of those responsible for violating the rights
protected by the American Convention”. The
State
[...] is obliged to combat this
situation by all available legal means, because impunity leads to the chronic
repetition of the human rights violations and the total defenselessness of
the victims and their next of kin[47].
202. Consequently, the State is obliged to investigate
the facts that generated the violations of the American Convention in this
case, identify those responsible and punish them.
203. Although, in its judgment on merits, the Court
did not decide that Guatemala had violated Article 2 of the Convention – the
provision establishing that, among the general obligations, the State must
adopt “the legislative or other measures that are necessary to make effective”
the rights recognized in the Convention – this is an obligation that the State
must fulfill because it has ratified this normative instrument. Accordingly, this Court considers that, in
accordance with Article 2 of the Convention, Guatemala must implement in its
domestic law, the legislative, administrative and any other kind of measures
that are necessary in order to adapt Guatemalan legislation to the provisions
of the Convention on the rights to personal liberty, to a fair trial and to
judicial guarantees, in order to avoid cases such as this one in the future[48]. This Court considers that, should it not exist
already, a register of detainees should be established, such as the one proposed
by the Commission.
204. With regard to the request for the transfer
of the body of Pablo Corado Barrientos, on many occasions this Court has indicated
that the next of kin have the right to know the whereabouts of the remains
of a loved one and has established that this “represents a fair expectation
that the State must satisfy insofar as possible”[49].
Accordingly, this Court considers that Guatemala must provide the necessary
conditions to transfer the mortal remains of the victim to the place chosen
by his next of kin, at no cost to them.
xi
Costs and
expenses
The arguments of the victims
205. In the instant case, some of the next of kin
of the victims were represented or received legal assistance from private
lawyers during their participation in the reparations stage before the Court
(supra 87.2.2, 87.4.2, 87.5.2, 87.6.2, 87.7
and 87.8.c).
206. In this respect, the next of kin of Anna Elizabeth
Paniagua Morales, Oscar Vásquez and Manuel de Jesús González López were represented
in the inter-American jurisdiction by the lawyer, Mark Martel, who requested
payment of US$30,000.00 (thirty thousand United States dollars) as compensation
for legal expenses and fees resulting from this case.
207. Also, the next of kin of Erick Leonardo Chinchilla
and Pablo Corado Barrientos had the legal assistance of the lawyer, René Argueta
Beltrán, during part of this stage and estimated at US$15,000.00 (fifteen
thousand United States dollars) the amount corresponding to the advice received
by each family.
208. Mr. González Najarro, father of William Otilio
González Rivera, also received legal assistance from the lawyer, Avilio Carrillo
Martínez, during part of this stage; however, he does not mention this item
in his brief on reparations.
209. The next of kin of Julián Salomón Gómez Ayala
indicated in their brief that they had not received the professional services
of a lawyer and did not refer to any other type of legal expenses.
The Commission’s arguments
210.
In its application, the Commission
requested the Court to order the State to pay any reasonable costs and expenses
that the victims and their next of kin had incurred in order to process this
case before the domestic jurisdiction and before the organs of the regional
system, and also lawyer’s fees for their legal representation. This petition was repeated in its briefs on
reparations, in which the Commission endorsed the calculations indicated by
the next of kin of the victims and considered that the victims, their next
of kin and lawyers should not have to absorb expenses to “make justice effective
when this has been denied by the State.”
The State’s arguments
211. The State expressed its agreement to recognizing
payment “to the person(s) who have effectively provided legal assistance,
directed and sponsored this case,” in an amount equal to a tenth of the total
compensation received in this judgment on reparations.
The considerations of the Court
212. It should be understood that costs and expenses
are included within the concept of reparation established in Article 63(1)
of the American Convention, because the measures taken by the victim or victims,
their successors or their representatives to have access to international
justice imply disbursements and commitments of a financial nature that must
be compensated when the judgment of condemnation is delivered. This Court
therefore considers that the costs referred to in Article 55(1) of the Rules
of Procedure also include the various necessary and reasonable expenses that
the victim or victims incur to have access to the inter-American system for
the protection of human rights. The
fees of those who provide legal assistance are included among the expenses.
Consequently, the Court must assess prudently the scope of the costs
and expenses, bearing in mind the particular circumstances of the case, the
nature of the international jurisdiction for the protection of human rights
and the characteristics of the respective proceedings, which are unique and
differ from those of other national or international proceedings[50].
213. As in previous cases, the quantum for this item may be established
on the basis of the principle of fairness[51], even in the absence of evidence concerning the
precise amount of the expenses that the parties have incurred[52], provided that the amounts respond to the criteria
of reasonableness and proportionality.
214. As for the State’s position that the costs
should be determined in proportion to the amount of the compensation obtained
by the victims or their next of kin, the Court considers that this procedure
is inadequate, since there are other elements that allow the quality and pertinence
of the measures taken to be assessed, such as the contribution of evidence
to support the facts set forth by the parties, the legal advice provided to
those they represent, the diligence in executing the various procedural measures
before the Court and the degree of knowledge of international jurisprudence[53].
215. When determining costs and expenses, the Court
will not make a decision with regard to the next of kin of Julián Salomón
Gómez Ayala, the Center for Justice and International Law and Human Rights
Watch/Americas, as they did not submit any requests in this respect (supra 5).
216. Based on the foregoing, the Court considers
that, in order to determine the fees of the lawyer, Mark Martel, it is necessary
to take into consideration his participation as the legal representative of
the next of kin of Anna Elizabeth Paniagua Morales, Oscar Vásquez and Manuel
de Jesús González López from the first stages of the case before the Commission,
and also during all its processing before the Court.
With regard to the lawyers, René Argueta Beltrán and Avilio Carrillo
Martínez, the amount should correspond to their subsequent involvement in
the case, once this reparations stage had been initiated.
Also, with regard to the lawyer, René Argueta, his representation of
the Corado Barrientos and González Chinchilla families must be taken into
account.
217. In view of the foregoing, the Court establishes
the costs and expenses corresponding to the lawyer, Mark Martel, representative
of the next of kin of Anna Elizabeth Paniagua Morales, Oscar Vásquez and Manuel
de Jesús González López, in the amount of US$20,000.00 (twenty thousand United
States dollars); for the lawyer, René Argueta Beltrán, representative of the
next of kin of Erick Leonardo Chinchilla and Pablo Corado Barrientos, the
Court considers that it is fair to grant him US$2,000.00 (two thousand United
States dollars) for this item; and for the lawyer, Avilio Carrillo Martínez,
representative of the next of kin of William Otilio González Rivera, it establishes
the amount of US$1,000.00 (one thousand United States dollars).
xii
Form of compliance
The Commission’s
arguments
218. The
Commission requested the Court to order that:
a) Guatemala
be obliged to pay the compensatory amounts that are established within four
months of the delivery of the respective judgment;
b) the
compensation be paid in United States dollars or the equivalent amount in
quetzales, the Guatemalan national currency, and also that the need to maintain
the purchasing power of the compensation be considered, in view of the devaluation
and depreciation of that currency;
c) the
compensation be free of all current and future taxes; and
d) in
its judgment, it establish that it will maintain its competence in this case
until it has been certified that all the measures of reparation ordered have
been complied with.
219. The
State and the representatives of the next of kin of the victims made no reference
to this point.
The considerations
of the Court
220. In
order to comply with this judgment, the State must pay the compensatory damages,
reimburse the costs and expenses and adopt the other measures that have been
ordered within six months of notification of this judgment.
221. The
payment of the compensatory damages established for the adult next of kin
of the victims, or for the victims, as is the case, shall be made directly
to them. Should any of them have died
or die, the payment shall be made to their heirs.
222. The
expenses generated by the measures taken by the next of kin of the victims
and their representatives and the costs resulting from the internal proceedings
and the international proceeding before the inter-American protection system
shall be paid to Mark Martel, René Argueta Beltrán and Avilio Carrillo Martínez,
as previously determined (supra 217).
223. Regarding
the compensation for the under age beneficiaries, the State shall set up an
account or a deposit certificate in a solvent Guatemalan banking institution
in United States dollars or the equivalent in Guatemalan currency, within
six months and in the most favorable conditions that legislation and banking
practice allow. The benefits deriving
from the interest shall increase the capital owed, which shall be delivered
to the minors, María Elisa Meza Paniagua, Julio Salomón Gómez Flores, Manuel
Alberto González Chinchilla and the alleged son of William Otilio González
Rivera, in its totality, when they reach their majority.
In case of death, the right shall be transmitted to the corresponding
heirs. With regard to the alleged son of William Otilio González Rivera, the
prior procedure to establish his identity set forth in paragraphs 133, 134,
135 and 145 of this judgment must be taken into account.
224. If,
for any reason, it should not be possible for the adult beneficiaries of the
compensatory payments to receive them within the indicated period of six months,
the State must deposit the amounts in their favor in an account or a deposit
certificate in a solvent financial institution, in United States dollars or
the equivalent in Guatemalan currency, in the most favorable financial conditions.
If after ten years, the compensation has not been claimed, the amount
will be returned to the State of Guatemala, with the interest earned.
225. The
State may comply with its obligations by making the payments in United States
dollars or the equivalent in Guatemalan currency, using the exchange rate
between these two currencies in force in the New York, United States, market
on the day before the payment, to make the calculation.
226. The
payments ordered in this judgment shall be exempt of any current or future
tax.
227. Should
the State fail to pay the amounts on time, it shall pay interest on the amount
owed corresponding to the banking interest on overdue payments in Guatemala.
228. In
accordance with its consistent practice, this Court reserves the right to
monitor full compliance with this judgment.
The case shall be closed once the State has fully complied with all
its provisions.
xiii
Operative
Paragraphs
229. Therefore,
the court,
decides:
unanimously,
1. To
order the State of Guatemala to pay:
A. For
Anna Elizabeth Paniagua Morales
a. US$108,759.00
(one hundred and eight thousand seven hundred and fifty-nine United States
dollars)[54], as compensation
for the loss of earnings of Anna Elizabeth Paniagua Morales, and this amount
shall be given to her daughter, María Elisa Meza Paniagua;
b. US$10,000.00
(ten thousand United States dollars)[55],
for the expenses incurred by the family of Anna Elizabeth Paniagua Morales,
and this amount shall be given to María Ildefonsa Morales Chávez, as the victim’s
mother so that she may distribute it in accordance with the expenses that
the family incurred; and
c. US$54,000.00
(fifty-four thousand United States dollars)[56],
for non-pecuniary damage caused to Anna Elizabeth Paniagua Morales and to
her next of kin, this global amount to be distributed as follows: US$20,000.00
(twenty thousand United States dollars) for María Elisa Meza Paniagua (the
victim’s daughter), US$15,000.00 (fifteen thousand United States dollars)
for María Ildefonsa Morales Chávez (mother), US$5,000.00 (five thousand United
States dollars) for Antonio Paniagua (father), US$5,000.00 (five thousand
United States dollars) for Blanca Lidia Zamora (the victim’s sister-in-law),
US$5,000.00 (five thousand United
States dollars) for Alberto Antonio Paniagua Morales (brother) and US$4,000.00
(four thousand United States dollars), to be distributed equally between the
siblings: Blanca Beatriz, Hugo Morani, Elsa Carolina and German Giovanni,
all Paniagua Morales.
B. For
Julián Salomón Gómez Ayala:
a. US$25,855.00
(twenty-five thousand eight hundred and fifty-five United States dollars)[57],
as compensation for the loss of earnings of Julián Salomón Gómez Ayala, and
this amount shall be divided equally and given to the victim’s son, Julio
Salomón Gómez Flores, and to his companion, Bertha Violeta Flores Gómez;
b. US$3,000.00
(three thousand United States dollars)[58],
for the expenses incurred by the next of kin of Julián Salomón Gómez Ayala,
and this amount shall be divided equally and given to the victim’s parents,
Petronilo Gómez Chávez and Blanca Esperanza Ayala de la Cruz, and his companion,
Bertha Violeta Flores Gómez; and
c. US$27,000.00
(twenty-seven thousand United States dollars)[59]
as compensation for the non-pecuniary damage caused to Julián Salomón Gómez
Ayala and to his next of kin, this global amount to be distributed as follows:
US$20,000.00 (twenty thousand United States dollars), distributed in equal
parts to Bertha Violeta Flores Gómez, the victim’s companion, Julio Salomón
Gómez Flores, his son, and his parents, Petronilo Gómez Chávez and Blanca
Esperanza Ayala de la Cruz, and the amount of US$7,000.00 (seven thousand
United States dollars) to be distributed in equal parts to the siblings: Danilo
Abraham, Deifin Olivia, Ingrid Elizabeth, Israel, Jorge Isaías, Douglas Moises
and Lidia Marisa, all Gómez Ayala.
C. For
William Otilio González Rivera:
a. US$32,545.00
(thirty-two thousand five hundred and forty-five United States dollars)[60]
as compensation for the loss of earnings of William Otilio González Rivera,
and this amount shall be given to his alleged son, as established in paragraphs
133 to 135 of this judgment;
b. US$2,000.00
(two thousand United States dollars)[61]
for the expenses incurred by the next of kin of William Otilio González Rivera,
and this amount shall be given to Salvador González Najarro, as the victim’s
father, so that he may distribute this amount in accordance with the expenses
that the family incurred; and
c. US$25,000.00
(twenty-five thousand United States dollars)[62]
for the non-pecuniary damage caused to William Otilio González Rivera and
his next of kin, this global amount to be distributed as follows: US$20,000.00
(twenty thousand United States dollars), allocated in equal parts to Salvador
González Najarro and María Asunción Rivera Velásquez, the victim’s parents
and to his alleged son, as established in paragraph 145 of this judgment;
and the amount of US$5,000.00 (five thousand United States dollars), to be
distributed in equal parts between the siblings Santos Hugo, José Alfredo,
Julio Moises, Anatanahel and Leidy Rosibel, all González Rivera.
D. For
Pablo Corado Barrientos:
a. US$32,814.00
(thirty-two thousand eight hundred and fourteen United States dollars)[63]
as compensation for the loss of earnings of Pablo Corado Barrientos, and this
amount shall be given to Juana Barrientos Valenzuela, the victim’s mother.
b. US$2,000.00
(dos thousand United States dollars)[64]
for the expenses incurred by the next of kin of Pablo Corado Barrientos, and
this amount shall be given to Juana Barrientos Valenzuela, as the victim’s
mother.
c. US$22,000.00
(twenty-two thousand United States dollars)[65]
for the non-pecuniary damage caused to Pablo Corado Barrientos and his next
of kin, this global amount to be distributed as follows: US$20,000.00 (twenty
thousand United States dollars), allocated to his mother, Juana Barrientos
Valenzuela; and the sum of US$2,000.00 (dos thousand United States dollars)
to be distributed equally between the siblings, Francisca and Tino Corado
Barrientos.
E. For
Manuel de Jesús González López:
a. US$78,372.00
(seventy-eight thousand three hundred and seventy-two United States dollars)[66]
as compensation for the loss of earnings of Manuel de Jesús González López,
to be distributed as follows: US$39,186.00 (thirty-nine thousand one hundred
and eighty-six United States dollars) shall be given to his wife, María Elizabeth
Chinchilla, and US$39,186.00 (thirty-nine thousand one hundred and eighty-six
United States dollars) shall be distributed in equal parts between the victim’s
three children, Karen Paola, Silvia Argentina and Manuel Alberto, all González
Chinchilla; in other words, US$13,062.00 (thirteen thousand and sixty-two
United States dollars) each.
b. US$3,000.00
(three thousand United States dollars)[67]
for the expenses incurred by the next of kin of Manuel de Jesús González López,
and this amount shall be given to María Elizabeth Chinchilla.
c. US$40,000.00 (forty thousand United States dollars)[68] for the non-pecuniary damage caused to Manuel de Jesús González López and to his next of kin; this global amount shall be given, in equal parts to María Elizabeth Chinchilla, the victim’s wife and to his children, Karen Paola, Silvia Argentina and Manuel Alberto, all González Chinchilla; in other words, US$10,000.00 (ten thousand United States dollars) each.
F. For
Erick Leonardo Chinchilla, a reparation in the amount of US$8,000.00 (eight
thousand United States dollars)[69],
as established in paragraph 180 of this judgment, to be given to his mother,
María Luisa Chinchilla Ruano.
G. For
Oscar Vásquez and Augusto Angárita Ramírez, a reparation in the amount of
US$8,000.00 (eight thousand United States dollars)[70],
as established in paragraph 187 of this judgment, to be given to each of the
victims or, if applicable, to their heirs.
H. For
Doris Torres Gil and Marco Antonio Montes Letona, a reparation in the amount
of US$3,000.00 (three thousand United States dollars)[71],
as established in paragraph 193 of this judgment, to be given to each of the
victims or, if applicable, to their heirs.
unanimously,
2. That
the State of Guatemala must investigate the facts that generated the violations
of the American Convention on Human Rights in this case, and identify and
punish those responsible.
unanimously,
3.
That the State of Guatemala must provide the resources and adopt the
other necessary measures for the transfer of the mortal remains of Pablo Corado
Barrientos and his subsequent burial in the place chosen by his next of kin,
as established in paragraph 204 of this judgment.
unanimously,
4. That,
in accordance with Article 2 of the American Convention on Human Rights, the
State of Guatemala must adopt, in its internal legislation, the legislative,
administrative and any other kind of measures necessary to set up the register
of detainees established in paragraphs 195 and 203 of this judgment, guarantee
its reliability and publicize it.
unanimously,
5. That
the State of Guatemala must, in fairness, pay, in reimbursement of the expenses
and costs generated in the inter-American jurisdiction, the amount of US$20,000.00
(twenty thousand United States dollars) to the lawyer, Mark Martel, representative
of the next of kin of the victims, Anna Elizabeth Paniagua Morales, Oscar
Vásquez and Manuel de Jesús González López; the amount of US$2,000.00 (dos
thousand United States dollars) to the lawyer, René Argueta Beltrán, representative
of the next of kin of Erick Leonardo Chinchilla and Pablo Corado Barrientos;
and the amount of US$1,000.00 (one thousand United States dollars) to the
lawyer, Avilio Carrillo Martínez, representative of the next of kin of William
Otilio González Rivera.
unanimously,
6. That
the State of Guatemala must comply with the measures of reparation ordered
in this judgment within six months of its notification.
unanimously,
7. That
the payments ordered in this judgment must be exempt of any current or future
charge or tax.
unanimously,
8.
That it shall monitor compliance with this judgment and shall close
this case once the State of Guatemala has fully complied with all its provisions.
Judge Carlos Vicente de Roux Rengifo informed the
Court of his concurring opinion, which accompanies this judgment.
Done,
at San José, Costa Rica, on May 25, 2001, in Spanish and English, the Spanish
text being authentic.
Antônio A.
Cançado Trindade
President
Hernán Salgado-Pesantes
Oliver Jackman
Alirio Abreu-Burelli
Sergio García-Ramírez
Carlos Vicente
de Roux-Rengifo
Edgar E. Larraondo-Salguero
Judge ad hoc
Manuel E. Ventura-Robles
Secretary
So ordered,
Antônio A.
Cançado Trindade
President
Manuel E.
Ventura-Robles
Secretary