been constituted and its cessation, if applicable, necessarily implies finding the remains and
establishing their identity as reliably as possible, because, until the remains have been identified,
the forced disappearance continues to be perpetrated. 30
65.
Despite the continuing nature of forced disappearance, the Court considers that a
reasonable reading of the Judgment leads to the conclusion that the spouse or permanent
companion who should inherit part of the compensation established in the Judgment in favor of
the disappeared victims refers to the one the victim had when the forced disappearance started.
Therefore, the Court notes that the phrase “at the time of death” in subparagraph (b) of
paragraph 364 of the Judgment, contains a material omission, because it does not specify that,
with regard to the disappeared victims, the fifty percent (50%) of the compensation must be
paid to the person who was the spouse or permanent companion of the victim at the start of
their forced disappearance. In application of Article 76 of the Rules of Procedure and taking into
account the provisions of paragraph 26 supra, the Court finds it pertinent to rectify this material
error in the Judgment. In addition, the Court notes that, the dates established in this regard in
the proven facts of the Judgment should be taken as the date of the start of the forced
disappearance of the 26 disappeared victims.
66.
The Court notes that the State argued that “Guatemalan law establishes the procedure to
determine the date of death of a disappeared person” and, therefore, regardless of the Court’s
interpretation, the State “can only take into account the decision of the judge who declares the
presumed death of each person” (supra para. 29). In this regard, the Court reiterates that all
aspects of the obligation to provide reparation are regulated by international law and, therefore,
cannot be modified or disregarded by the State invoking its domestic law (supra para. 61).
B.4) Application of subparagraph (d) of paragraph 364 of the Judgment
67.
The Court observes that the representatives inquired about the method for distributing
the compensation of the disappeared victims, if it had to be delivered to the parents or siblings of
these victims. In this regard, the Court considers that, from reading paragraph (d) of the said
paragraph 364, it is clear that, if the compensation established in favor of the victims recorded in
the Diario Militar must be delivered to their parents, it must be divided in equal parts between
the two parents. Also, pursuant to its case law, the Court interprets that if one of the parents is
deceased, the total compensation must be paid to the surviving parent. 31 In the absence of both
parents, the third scenario established in paragraph 364 of the Judgment is applied, whereby the
compensation established in favor of the victim recorded in the Diario Militar is paid to his or her
siblings in equal shares (supra para. 35).
B.5) Scope and application of subparagraph (e) of paragraph 364 of the Judgment
68.
The Court also observes that the representatives posed specific questions about the
eventual application of subparagraph (e) of paragraph 364 of the Judgment. In particular, they
asked whether the reference to domestic inheritance laws in this scenario “means that, for the
purposes of the distribution of the payment, the criteria established in Guatemala’s civil laws
should be used or whether an inheritance proceeding should be initiated in keeping with those
30
Cf. Case of Gudiel Álvarez (“Diario Militar”) v. Guatemala, supra, paras. 206 and 207, citing: Case of Tiu Tojin
v. Guatemala. Merits, reparations and costs. Judgment of November 26, 2008. Series C No. 190, para. 84; Case of
Ibsen Cárdenas and Ibsen Peña v. Bolivia, supra, para. 82, and Case of the Río Negro Massacres v. Guatemala, supra,
para. 113
31
Cf. Case of Goiburú et al. v. Paraguay. Merits, reparations and costs. Judgment of September 22, 2006. Series
C No. 153, para. 148 (b); Case of the 19 Tradesmen v. Colombia, supra, para. 230 (c), and Case of the La Rochela
Massacre v. Colombia. Merits, reparations and costs. Judgment of May 11, 2007. Series C No. 163, para. 237(c).
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