43
investigation in order to clarify what occurred.155
127. In this regard, this Tribunal has considered that it can presume injury to the
psychological and moral integrity of the next of kin of the victims of certain violations of
human rights applying a iuris tantum presumption regarding mothers and fathers, sons
and daughters, spouses, and permanent life partners (hereinafter “direct relatives”), as
long as this responds to the specific circumstances of the case. In the case of those direct
relatives, it is the State who shall invalidate said presumption.156 In all other cases, the
Tribunal must analyze if the evidence in the case file shows some affectation on the
personal integrity of the alleged victim, regardless of whether he or she is a next of kin of
another victim in the case or not. Regarding those persons in respect of whom the Court
does not presume injury to personal integrity 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 establish an affectation on
their personal integrity and, therefore, a violation of Article 5 of the Convention. The Court
may also assess whether the alleged victims have been involved in seeking justice in the
specific case,157 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 facts.158
128. In this way, the Tribunal presumes the suffering of Mrs. Martha Castro Mendoza for
the forced disappearance of his husband, Jose Luis Ibsen Peña, and the suffering of Tito,
Rebeca and Raquel Ibsen Castro, as his children. The State did not disprove said
presumption (supra para. 125). Furthermore, the affidavits rendered and the statements
rendered at the public hearing by the next of kin of José Luis Ibsen Peña reveal the
suffering they endured due to the violations committed against him.159 The Court shall take
155
Cf. Case of Blake v. Guatemala. Merits. Judgment of January 24, 1998. Series C No. 36., para. 114;
Case of Radilla Pacheco v. Mexico, supra note 8, para. 161, and Case of Chitay Nech et al. v. Guatemala, supra
note 6, para. 220.
156
Cf. Case of Valle Jaramillo et al Vs. Colombia. Merits, Reparations and Costs. Judgment of November
27, 2008. Series C No. 192, para. 119; Case of Radilla Pacheco v. Mexico, supra note 8, para. 162, and Case of
Chitay Nech et al. v. Guatemala, supra note 6, para. 220.
157
Cf. Case of Bámaca-Velásquez v. Guatemala, Merits, supra note 117, para. 63; Case of Valle Jaramillo
et al v. Colombia. supra note 156, para. 119, and Case of Kawas Fernández v. Honduras, supra note 11, para.
129.
158
Cf. Case of Blake v. Guatemala. Merits. supra note 155, para. 114; Case of Kawas Fernández v.
Honduras, supra note 11, para. 129, and Case of Manuel Cepeda Vargas v. Colombia, supra note 6, para. 195.
159
In that regard, Ms. Martha Castro affirmed that: “while [her husband] was detained, [she] was not
allowed to see him[.] [O]nly the child, Tito, entered a few times to leave him some clothes [and] food[.]
[S]ometimes Tito would go by himself from the house to the prison in order to try to see his father[.] [O]n one of
these occations, Tito brought back Jose Luis’s bloody socks[;] that is how [she] became convinced that they
tortured and beat prisoners in there, as a woman had told [her]. [Her] suffering was terrible and what hurts [her]
the most is that [her] children also suffered. Cf. Declaration rendered before public notary (affidavit) by Mrs.
Martha Castro Ibsen (case file on the merits, volume III, folios 637 and 639). During the public hearing (supra
para. 8), Tito Ibsen Castro indicated that he was the only one allowed to see his father while he was detained in
EL Pari. He also stated that his father was kept in solitary confinement for three days and that when he entered
for the first time to bring him food he suffered “fasting and hunger.” Mr. Tito Ibsen also received from his father
his passport, ring, dental plaques and a watch, with the instruction to give them to his mother. Next day, his
father told him to take care of his mother and his sisters, because this would possibly be the last time he would
see him. On the other hand, Rebeca Ibsen Castro declared that at the time that his father was arrested she “was
10 years old and would go to the detention center and cried because she was not allowed to get in to see [her]
dad[;] […, and] that she continuously suffered very much because she could not understand [why] there was so
much cruelty with the person […] she loved so much […]”. Cf. Declaration rendered before public notary
(affidavit) by Mrs. Rebeca Ibsen Castro (case file on the merits, volume III, folio 739). Finally, Raquel Ibsen
Castro declared that “[her] greatest wish in this life is to bury [her] father[.] She wants to see [him] within a
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