9
time when most people are away on holidays”; that is why the Attorney’s Office was
informed by telephone that two of the three persons that were called “were in other cities
up country, […] so it was impossible for them to appear on December 28, 2007.” Likewise,
it was stated that the victims’ next of kin appeared at the Attorney’s Office on July 16, 2008
and that “such meetings were focused on the description of the physiognomic features of
the dead victims.” Specifically, the representatives pointed out that on August 26, 2008 and
more recently, on September 24, 2009, “the victims’ next of kin and their representative
requested [at the Division for the Protection of Fundamental Rights of the General
Attorney’s Office of Venezuela] a DNA test as the most reliable evidence so that these
identifications could be really adequate.” However, so far “the 30th Attorney’s Office has not
received any answer from that Department […] and there is no record in the file that such
proceedings have been carried out.” Furthermore, for the representatives “the fact that the
State indicates that the exhumation processes shall not start until such data has been
provided by the next of kin is unacceptable[,] since […] such data have already been
provided by the next of kin on several occasions.” Likewise, the representatives highlighted
that the “30th Attorney’s Office is fully competent at the National Level of the Attorney’s
Office and expressed that the exhumation processes have not started, among other
[reasons], because it has not been defined yet who shall bear the expenses of these
processes, indicating that the possibility for the victims’ next of kin to run with such
expenses should be considered.” Additionally the representatives considered that “the
exhumation processes to be carried out to deliver the remains of the dead victims must be
made by international independent experts ensuring the victims’ next of kin full
identification of their beloved.” Independent of this, they indicated that “within a maximum
term of ten days the State must provide […] detailed information about the plan of action to
locate, identify and deliver the [victims’] bodies to their next of kin.” Similarly, they pointed
out that the State shall “allow the victims’ next of kin to participate in such processes.”
Lastly, they indicated that “the exhumation and identification and documentation of the
injuries should be completed in two months maximum.”
25.
That the Commission “acknowledged the efforts by the State” to comply with the
obligation to locate the bodies of José León Ayala Gualdrón and Edgar José Peña Marín, but
“it considered that the State must continue informing periodically on the progress of this
process[, p]articularly […] taking into account that the representatives have expressed their
concern about the mechanism to identify the bodies on several occasions.”
26.
That the information provided by the parties shows that the bodies of Messrs. José
León Ayala Gualdrón and Edgar José Peña Marín have been apparently located (supra
Considering clauses 23, 24 and 25). However, the State shall make the necessary
proceedings to exhume the bodies, identify them and, in case those are effectively the
bodies of such victims, the State shall deliver them to their next of kin. According to the
brief of October 7, 2009, presented by the State, the exhumation process may be carried
out within the next two months, i.e. before the end of 2009. The identification and delivery
of the bodies would be carried out by mid-June 2010 (supra Considering clause 23).
However, the State also indicated that the exhumation processes shall not start until the
next of kin provide some “pre-morten” data required, and as pointed out by the
representatives, the State allegedly refuses to start any exhumations until it is clear who
shall bear the corresponding costs (supra Considering clause 24). On this matter, the Court
reiterates what it expressed in paragraph 142 of the Judgment where it established that the
State shall bear all costs of delivery of the bodies of the two victims to their next of kin and
any burial expenses they may incur. Likewise, as informed by the representatives, the “premortem” data required by the State apparently have already been provided by their next of
kin when they appeared before the Attorney’s office on July 16, 2008 (supra Considering
clause 24). Therefore, the State must start the exhumation and identification process and, if