59
investigation into the forced disappearance constituted a source of suffering and additional
anguish for the next of kin.
218. The representatives alleged the violation of said Article based on, inter alia, that the
next of kin of Florencio Chitay Nech had been victims of suffering due to the displacement,
persecution, shortages, and difficulties that they faced due to the disappearance of he who
“acted as the head and supporter of the family,” the lack of clarification of the facts, the
impossibility of carrying out a mourning period, the disintegration of their family, the
rejection of the community, and the lack of investigation.
219. The State recognized its international responsibility for the violation of Article 5 of
the Convention, to the detriment of the next of kin of Florencio Chitay Nech. (supra para.
13).
220. The Tribunal has reiterated in its jurisprudence that the next of kin of the victims of
violations of human rights can be, on their own, victims.234 In particular, in cases that
involve the forced disappearance of persons, it is possible to understand that the violation
of the right to physical and moral integrity of the next of kin of the victim is a direct
consequence, precisely, of this phenomenon, which causes them severe suffering based in
the same fact, and increases, among other factors, with the constant denial by State
authorities to provide information about the whereabouts of the victim or to begin an
efficient investigation in order to clarify what happened.235 Also, this Tribunal has found
that it can declare a violation of the right to physical and moral integrity of the direct next
of kin of victims of certain violations of human rights such as forced disappearance, by
applying a presumption iuris tantum regarding mothers and fathers, sons and daughters,
husbands and wives, and permanent domestic partners (hereinafter, “direct next of kin”),
so long as this corresponds to the particular circumstances of the case. Regarding said
direct next of kin, it corresponds to the State to rebut said presumption.236
221. In this regard, the Court remembers that in the other cases it has considered of the
continued deprivation of the truth regarding the whereabouts of a disappeared person, this
constitutes a form of cruel and inhuman treatment for the close next of kin.237 Also, the
Tribunal has indicated that given facts of forced disappearance of persons, the State has
the obligation to guarantee the right to personal integrity of the next of kin by way of
effective investigative routes. Even more, the absence of effective remedies has been
considered by the Court as a source of suffering and additional anguish for the victims and
their next of kin.238
234
Cf. Case Castillo Páez V. Perú. Merits. Judgment of 3 of November of 1997. Series C No. 34, Punto
Resolutivo cuarto; Case Anzualdo Castro V. Perú, supra note 86, para. 105, and Case Radilla Pacheco V. México,
supra note 12, para. 161.
235
Cf. Case Blake V. Guatemala. Merits. Judgment of 24 of January of 1998. Series C No. 36, para. 114;
Case Anzualdo Castro V. Perú, supra note 86, para. 105, and Case Radilla Pacheco V. México, supra note 12, para.
161.
236
Cf. Case Valle Jaramillo et. al. V. Colombia, supra note 155, para. 119; Case Kawas Fernández V.
Honduras, supra note 15, para. 128, and Case Radilla Pacheco V. México, supra note 12, para 162.
237
Cf. Case Trujillo Oroza V. Bolivia. Reparations and Costs. Judgment of 27 of February of 2002. Series C
No. 92, para. 114; Case Anzualdo Castro V. Perú, supra note 86, para. 113, and Case Radilla Pacheco V. México,
supra note 12, para. 166.
238
Cf. Case Blake V. Guatemala, supra note 235, para. 114; Case Anzualdo Castro V. Perú, supra note 86,
para. 113, and Case Radilla Pacheco V. México, supra note 12, para. 167.
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