36
presumption,186 applicable in cases of massacres and extrajudicial executions,187 with
respect to the family members of the deceased. In circumstances where the presumption
is not in order, the Court must evaluate the existence of a link between the family member
and the victim that would permit establishing a harm to that person’s personal integrity
and whether the evidence in the file of the case confirms a violation of the right to personal
integrity.188
124. In this case, it may be presumed that the right to personal integrity of the direct
family members of the deceased persons of October 5, 1995 were affected. The Court
does not have the elements to refute this presumption. In addition, it may be considered
here that the harm to the personal integrity of those family members was aggravated
because they lived through the incident189 and, in some cases, were eyewitnesses to the
death of a loved one.190. In addition, there is no record that the State provided medical
or psychological care in this situation.191 Therefore, Guatemala violated the right to
personal integrity of the direct family members of the deceased victims.
125. As to the next of kin of the injured persons, the Commission and the representative
only indicated as alleged victims the next of kin of Francisco Hernández. Nevertheless,
the next of kin of Santiago Maquín Quip and Rosendo Morales Ortiz should also be
considered in this same category since, with respect to both, the Court did not hold a
violation of their right to life since it determined that it was not possible to establish a link
between their deaths and the injuries suffered on October 5, 1995 (supra para. 112).192
126. Regarding the case of the next of kin of Francisco Hernández, the information
provided by the parties and the statements of his family members do not allow
establishing an additional suffering as a result of the special circumstances that they lived
through.193 The Court, thus, considers that there was not, in relation to the injuries
suffered by Francisco Hernández, an infringement to the personal integrity of Cruz
That presumption would shift the burden of proof, since it would not be necessary to prove the violation of
the right of such “direct family members,” but it would be for the State to disprove it (cf. Case of Valle Jaramillo
et al. v. Colombia, supra, para. 119 and Case of Herzog et al. v. Brazil, supra, para. 351).
187
Cf. Case of the Mapiripán Massacre v. Colombia, supra, para. 146; Case of La Cantuta v. Peru, supra, para.
218 and Case of Herzog et al. v. Brazil, supra, para. 351.
188
Cf. Case of Valle Jaramillo et al. v. Colombia, supra, para. 119 and Case of V.R.P., V.P.C. et al. v. Nicaragua,
supra, para. 328.
189
The incident witnessed by the family members of the deceased victims was related by some of them. Cf.
1.- statements on video recordings of March 21, 2017 of Atilana Hernández Maldonado, Efraín Grave Morente,
Florinda Sales Jacinto, José Coc Cajbón, María Medina, María Miguel, Mario Alberto Ramírez Hernández,
Manuela Toma Gómez, Natividad Sales Calmo, Pedro Coc Chén, Petrona Miguel Méndez, Ramón Mateo and
Tomás Grave Morente, incorporated as documentary evidence, presented together with the brief with pleadings
and motions; 2.- Statements of Tomás Grave Morente and Natividad Sales Calmo before the Commission,
supra; 3.- Statement of AMQ (evidence file, annex 3 to the Merits Report, fs. 5 to 8); 4.- Statement of Efraín
Grave Morente before the Guatemalan judiciary, supra, and 5.- Statement of Efraín Grave Morente before the
Court, supra.
190
Cf. Statement of Tomás Grave Morente before the Court, supra, in which he related the final words of his
mother, Hilaria Morente de la Cruz. Mr. Grave Morente said: “I went to her and I could see that she had
received two wounds in the chest, she was bleeding, and then she said to me: ‘my son, my son, take care of
yourself, I can’t stand it any longer’ and began to say goodbye, already with signs of dying. What I did was,
take off my shirt and put it over her face because she didn’t look good.”
191
Similarly, reference is made to the statement of Efraín Grave Morente before the Court, supra. Regarding
the lack of psychological assistance, he indicated”: “I did not receive psychological help from the State, totally
abandoned, we had support but it was from an NGO, the Doctors of the World of Spain, but that does not have
anything to do with the State of Guatemala, the State of Guatemala didn’t even give us one pill to calm our
nerves.”
192
Neither did the Court find the violation of the right to life of Gerardo Maldonado Sales that had been alleged,
but with respect to him there was no indication of next of kin.
193
Cf. Statements of Atilana Hernández Maldonado and Rolando Hernández Maldonado by video recordings of
March 23, 2017, incorporated as documentary evidence, presented with the brief with pleadings and motions.
186