37
2.
The forced displacement, the disintegration of the Chitay Rodriguez family
and the effects on the cultural life of the indigenous children
A.
The forced displacement of the Chitay Rodriguez family
135. The representatives alleged that as a result of the acts of intimidation and
persecution that the members of the Chitay Rodriguez family suffered, they were obligated
to escape suddenly from San Martín Jilotepeque and to move to Guatemala City, leaving all
of their belongings either abandoned or destroyed. Since then it has been impossible to
return to their place of origin, given that no authority has intervened in order to protect
them, and there still exists a great amount of insecurity in the area, for which they fear
they are targets of reprisals from the persons that took their father. Finally, they noted
that for the children of Florencio Chitay Nech, the forced displacement implicated the loss
of their culture, traditions, language and ancestral past which had an “even more dramatic
effect given the fact that they are indigenous, as a result of the cultural value that the
lands have from the point of view of the Mayan culture.”
136. The Commission did not allege the violation of the freedom of movement and
residence. Nevertheless, in the application, paragraphs 69, 70, 187, and 188, it described
that the Chitay Rodriguez family was obligated to escape to Guatemala City due to the
harassments and persecutions against them.
137. The State did not make specific allegations to distort the claims of the
representatives, but only mentioned that “the State of Guatemala, at no moment impeded
or prohibited the freedom of movement and residence of the petitioners, and as such the
State is not responsible for the supposed violation of Article 22.”
138. As previously considered, the Court finds it necessary to point out that in the
present case, the supposed violation of Article 22 of the Convention, which was not alleged
before the Commission, is based on the fact that Mr. Chitay Nech and his next of kin were
objected to various acts of harassment and threats, for which they had to escape from San
Martín Jilotepeque to Guatemala City (supra para. 74). The Tribunal has stated that the
State had the opportunity to refer to said allegation in various procedural opportunities.
Nevertheless, it did not present any specific arguments regarding the alleged violation, and
only opposed the objection of non-exhaustion of domestic remedies, which was resolved by
the Tribunal (supra para. 31 and 34). Consequently, the Court considers that the lack of
claims regarding Article 22 in the processing before the Commission has not affected the
procedural balance of the parties, nor has diminished the right of defense of the State
regarding it having the opportunity to present its arguments and evidence through the
process before this Tribunal.
145
Cf. Statement of Pedro Chitay Rodríguez, supra note 55; statement of Eliseo Chitay Rodríguez, supra note
59, and statement of Estemerio Chitay Rodríguez, supra note 131.
146
Cf. Statement of Pedro Chitay Rodríguez, supra note 55.
147
Cf. Statement of Encarnación Chitay Rodríguez, supra note 58.
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