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5.
We must also state, regarding this subject matter, that personal identity
encompasses not only strictly biological concepts, but also various other concepts
such as the individual’s cultural, historical, religious, ideological, political,
professional, social, and family heritage, for which reason, in the instant case,
detriment to the cultural identity of the Yakye Axa Community also injured the
personal identity of each of its members. In the instant Judgment, the Court
stopped at the issue of the juridical personality of the Yakye Axa indigenous
Community under Paraguayan domestic law (paras. 83 and 84); it is our
understanding that beyond this matter one must always take into account, at a
different level, the legal personality of each of the members of the Yakye Axa
Community under international human rights law, specifically under the American
Convention.
6.
In the instant case, what we do not understand is why the Court, once it
found that Article 4(1) of the Convention had been abridged, in the aforementioned
terms (para. 3, supra), deemed that it did not have “sufficient evidence to prove
violation of the right to life” to the detriment of members of the Yakye Axa
indigenous Community, who in fact died under the aforementioned conditions, that
is, living, or surviving, along the route from Pozo Colorado to Concepción, outside
the territory that they claim as their ancestral right.
7.
In our opinion, the death of some of these individuals (cf. para. 8 infra.),
based on the Court’s own reasoning, rather than requiring a higher standard of proof
of the causal link with the demise of these individuals, as the majority of the Court
unfortunately deemed, is instead an aggravating circumstance of the abridgment of
the right to life (Article 4(1) of the Convention), already established by the Court
itself.
8.
The following list clearly manifests what we stated above, regarding ten of the
sixteen deceased, 1 with regard to whom there is no doubt, in our opinion, that they
died due to lack of medical care and as a direct consequence of the completely
destitute and truly subhuman conditions under which they lived or survived:
1)
Griselda Flores (2 years old): died on March 2, 1997 due to dysentery without
receiving medical care before her death;
2)
Alcides Morel Chávez (6 years old): died in November 1997 due to dysentery
and sores, without receiving medical care before his death;
3)
Adolfo Ramírez (64 years old): died on August 15, 1998 due to cachexia,
without receiving medical care before his death;
With regard to the other six deceased persons, listed below, there may be some doubts regarding
the cause of their death: 1) Hilario Gómez (20 years old): he died on March 7, 2005 due to convulsions
associated with a congenital neurological lesion, without receiving medical care before his demise; 2)
Mauro Fernández Gómez (1 year old): he died on January 20, 1998 of meningitis, without receiving
medical care at a hospital before his death. He was discharged after 22 days of hospitalization with a
diagnosis of meningitis with ensuing complications and no possibility of being cured; 3) N/N Sosa Chávez
(one month old) died in August 1998 due to tetanus. He was seen at the regional hospital in Concepción
and released with a diagnosis of tetanus; 4) Santiago Gómez (78 years old) died between June 30 and
July 7, 2002, of suffocation, without receiving medical assistance before his death; 5) Ignacio Torales (68
years old) died on January 2, 2003 due to mitral insufficiency –chronic congestive cardiac insufficiency-,
without receiving medical assistance before his death; and 6) Severa Benítez Alvarenga (80 years old)
died on January 5, 2003 from arrhythmia –chronic congestive cardiac insufficiency- having been examined
by physician Pablo Balmaceda prior to her death.
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