-83-
159. With regard to the mother and siblings of Ernestina and Erlinda Serrano Cruz,
the Court has presumed that the suffering or death of a person causes his parents
and siblings non-pecuniary damage, which does not have to be proved.47 Based on
the testimony of the next of kin and the expert reports, the Court considers that they
have suffered as a result of the uncertainty about what happened to Ernestina and
Erlinda and about their whereabouts. In this regard, the Court emphasizes that it is
inherent in human nature that a person feels sorrow when he does not know what
has happened to a child or a sibling, particularly when this is aggravated by
impotence in the face of the failure of the State authorities to instigate a diligent
investigation into what happened. As the Court has established, the suffering caused
to the victim “extends to the closest members of the family, particularly those who
were in close affective contact with the victim.”48
160. Bearing in mind the different facets of the damage adduced by the
Commission and the representatives, the testimonial evidence and the expert reports
in the proceedings, the Court establishes, in fairness, compensation for nonpecuniary damage, based on the following parameters:
a)
To establish compensation for the non-pecuniary damage suffered by
Ernestina and Erlinda Serrano Cruz, the Court takes into account that this is a
case in which the facts investigated by the Chalatenango Trial Court refer to
their alleged abduction by members of the Atlacatl Battalion during a military
operation (supra para. 48(22)) and which provides an example of the
repercussions of the problem of the children who disappeared during the
armed conflict. The Court considers that the absence of access to justice and
a diligent investigation during the habeas corpus procedure and the criminal
proceedings (supra paras. 106 and 107) have not allowed their whereabouts
to be determined and, should they be alive, have prevented them from being
able to re-establish their family relationships and know their true origins, and
this has caused them non-pecuniary damage that must be repaired. The
Court establishes, in fairness, the sum of US$50,000.00 (fifty thousand
United States dollars) or the equivalent in Salvadoran currency, for nonpecuniary damage in favor of Ernestina Serrano Cruz, and the same amount
in favor of Erlinda Serrano Cruz;
b)
When determining the compensation corresponding to María Victoria
Cruz Franco, the mother of Ernestina and Erlinda Serrano Cruz, and to their
siblings, Suyapa and José Fernando, it should be taken into account that
these family members had the closest contact with the children before the
facts occurred that are under investigation by the Chalatenango Trial Court.
Also, Oscar Serrano Cruz has been the brother of Ernestina and Erlinda who
suffered most, because he lived with their mother and had to accompany her
and take care of her while she was looking for them and making efforts to
ensure that the State authorities would try and trace them. These members
of the family started the search for Ernestina and Erlinda in order to know
what happened to them and, should they be found alive, to achieve family
47
Cf. Case of the Gómez Paquiyauri Brothers, supra note 10, para. 197; Case of the 19 Tradesmen,
supra note 15, para. 229; and Case of Maritza Urrutia, supra note 19, para. 169.
48
Cf. Case of the Gómez Paquiyauri Brothers, supra note 10, para. 218; Case of the 19 Tradesmen,
supra note 15, para. 249; and Case of Molina Theissen. Reparations, supra note 4, para. 48(