110
following next of kin of Myrna Mack Chang: Lucrecia Hernández Mack, Yam Mack
Choy, Zoila Chang Lau, Helen Mack Chang, Marco Mack Chang, Freddy Mack Chang,
and Ronald Chang Apuy.
XI
VIOLATION OF ARTICLES 5 AND 1(1)
(RIGHT TO HUMANE TREATMENT AND
OBLIGATION TO RESPECT RIGHTS)
Pleadings of the representatives of the next of kin of the victim
219. In their autonomous brief with pleadings, requests, and evidence, the
representatives asked the Court to find that the State has violated Article 5 of the
American Convention to the detriment of the direct next of kin of Myrna Mack Chang,
who are: Lucrecia Hernández Mack, daughter; Yam Mack Choy, the deceased father;
Zoila Chang Lau, the mother; Freddy Mack Chang, brother; Marco Mack Chang,
brother; Helen Mack Chang, sister; and Ronald Chang Apuy, first cousin. In this
regard, they stated that:
a)
the violation was due to the fact that the next of kin of the victim felt
deep suffering and anguish because of the following situations: 1) the
circumstances of the death of Myrna Mack Chang; 2) the harassment
campaign directed against those who insisted on finding out the truth
regarding the death of Myrna Mack Chang; and 3) inaction of the State to
punish all those responsible;
b)
for more than “twelve” years, the next of kin of the victim and,
especially, Helen Mack Chang, have made numerous efforts to attain justice in
the case and, since then, have lived under the imminent threat of suffering
aggression as personal punishment for their struggle against impunity.
Insistence of the family on trying all those responsible–direct perpetrators and
accessories- of the murder of Myrna Mack Chang has been counteracted by
the efforts of certain Guatemalan sectors to ensure impunity through acts of
intimidation and violence. The feeling of insecurity and anguish that stems
from having to live with this harsh reality must be considered non-humane
treatment;
c)
while the Commission did not expressly point to violation of Article 5 of
the Convention in its application, that does not impede the Court from
addressing this matter. The representatives of the next of kin of the victim
have the autonomous power to allege violations of rights independently of the
pleadings submitted by the Commission, inasmuch as the facts that are the
object of the case brought before the Court are respected. The aim of the
new Rules of Procedure of the Court is to enable autonomous defense of the
interests of the victims or their next of kin, facilitating their active
participation in the development of the proceeding. For this reason, forcing
the representatives of the victims to restrict the content of their claim to the
application submitted by the Commission would be contrary to the
amendment. It is therefore consistent for the Court to recognize the right of
the victim to autonomously requests a juridical solution of the case. If the
Court did not explicitly recognize said right of the victim or the
representatives of the victim, in any case it is competent to rule on the
request based on the iura novit curia principle.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents