38
or representatives may invoke different rights from those included in the application filed by
the Commission, based on the facts alleged therein.155 In this case, the Court notes that
given that the arguments raised by the representatives regarding the violation of Article
5(1) of the American Convention to the detriment of the next of kin of Blanca Jeannette
Kawas-Fernández are based on facts contained in the application, the Court will proceed to
consider such arguments.
128. On several occasions,156 the Inter-American Court has declared the violation of the
right to humane treatment in respect of the next of kin of victims of certain human rights
violations or with respect to other persons having close relationships with such victims. In
this connection, in the Case of Valle-Jaramillo et al. v. Colombia, the Court held that a
violation of the right to mental and moral integrity of the direct next of kin of victims of
certain human rights violations may be declared by applying a rebuttable presumption with
regard to mothers and fathers, daughters and sons, husbands and wives, permanent
companions (hereinafter “direct next of kin”) provided it responds to the specific
circumstances of the case. With regard to such direct next of kin, it is for the State to rebut
said presumption.157
129. In all other cases, the Court must analyze if the evidence in the records of the case
shows a violation of the right to humane treatment of the alleged victim, regardless of
whether he/she is a next of kin of another victim in the case or not. As regards those
persons in respect of whom the Court does not presume that the right to humane treatment
has been violated because they are not direct next of kin, the Court must assess, for
example, whether there is a particularly close relationship between them and the victims in
the case that would enable the Court to find that the right to humane treatment has been
violated. The Court may also assess whether the alleged victims have been actively involved
in seeking justice in the specific case,158 or whether they have suffered as a result of the
facts of the case or of subsequent acts or omissions on the part of the State authorities in
relation to the incidents.159
130. The Court notes that the representatives have requested that the State be found
responsible for the violation of Articles 5(1) and 5(2) of the American Convention to the
detriment of the following direct next of kin of Blanca Jeannette Kawas-Fernández: Mr.
Jacobo Kawas-Kury, father;160 Blanca Fernández, mother;161 Selsa Damaris Watt-Kawas,
155
Cf. Case of “Five Pensioners” V. Perú. Merits, Reparations and Costs. Judgment of February 28, 2003.
Series C No. 98, para. 155; Case of Ríos et al. Preliminary Objections, Merits, Reparations and Costs, supra note
10, para. 42; and Case of Perozo et al. Preliminary Objections, Merits, Reparations and Costs, supra note 10, para.
32.
156
Cf. Case of Blake V. Guatemala. Merits. Judgment of January 24, 1998. Series C No. 36, para. 114; Case
of Heliodoro-Portugal. Preliminary Objections, Merits, Reparations, and Costs, supra note 123, para. 163; Case of
Valle-Jaramillo et al. v. Colombia. Merits, Reparations, and Costs, supra note 8, para. 119.
157
Cf. Case of Valle-Jaramillo et al. V. Colombia. Merits, Reparations, and Costs, supra note 8, para. 119.
158
Cf. Case of Bámaca-Velásquez V. Guatemala. Merits. Judgment of November 25, 2000. Series C No. 70,
para. 163; Case of Heliodoro-Portugal. Preliminary Objections, Merits, Reparations, and Costs, supra note 123,
para. 163, and Case of Valle-Jaramillo et al. V. Colombia. Merits, Reparations, and Costs, supra note 8, para. 119.
159
Cf. Case of Blake. Merits, supra note 156, para. 114; Case of Heliodoro-Portugal. Preliminary Objections,
Merits, Reparations and Costs, supra note 123, para. 163; and Case of Valle-Jaramillo et al. Merits, Reparations
and Costs, supra note 8, para. 119.
160
Cf. Birth certificate of Blanca Jeannette Kawas-Fernández, supra note 145.
161
Cf. Birth certificate of Blanca Jeannette Kawas-Fernández, supra note 145.
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