43
circumstances of the violations committed against their loved ones and of the subsequent
acts and omissions of the State authorities in response to those violations.131 The issues that
must be considered include the following: (1) the existence of a close family tie; (2) the
particular circumstances of the relationship with the victim; (3) the extent to which the
family member was involved in the search for justice; (4) the State’s response to their
efforts;132 (5) the context of a “system that prevents free access to justice,” and (6) the
constant uncertainty in which the next of kin live as a result of not knowing the victim’s
whereabouts.
164. In this regard, the Court observes, first, that the representatives named the
grandchildren of Heliodoro Portugal, Román and Patria Kriss Mallah Portugal, as alleged
victims of the violation of the right to personal integrity. While the Commission did not
include them either in its application or in its report under Article 50 of the Convention, it
did refer to them in its final written arguments.
165. According to the Court’s case law, the alleged victims must be indicated in the
application and the Commission’s report on admissibility under Article 50 of the Convention.
Article 33(1) of the Court’s Rules of Procedure establishes that it is the Commission, and not
the Court, that must identify the alleged victims in a case before the Court precisely and at
the appropriate procedural opportunity.133 Therefore, in keeping with this case law and the
State’s right of defense, the Court will not consider Heliodoro Portugal’s grandchildren as
alleged victims in this case because they were not named as such by the Commission at the
appropriate procedural opportunity.
166. Regarding Graciela De León, Patria Portugal and Franklin Portugal, the companion
and children of Heliodoro Portugal, respectively, the Commission and the representatives
presented evidence of their close family ties to Heliodoro Portugal, their involvement in
seeking justice, and the effect of the State’s response on their efforts.
167. Before proceeding, the Court considers it necessary to reiterate that it will take into
consideration the facts described in the application that occurred before June 9, 1990, the
date on which the State accepted the Court’s competence, to the extent that doing so is
necessary to contextualize the alleged violations that took place after that date.134
168. Graciela De León testified before the Court that she looked for her companion,
Heliodoro Portugal “in all the hospitals and barracks and asked all his friends about him.”135
The psychologist, Jacqueline Riquelme, indicated that, owing to the disappearance of her
companion, Graciela De León “relives that traumatic experience every day; this manifests
itself in her silence, fear and shunning of social participation.”136 Furthermore, Patria
131
Cf. Case of Blake, supra note 130, paras. 114 to 116, and Case of Albán Cornejo et al., supra note 22,
para. 46.
132
Cf. Case of Bámaca Velásquez, supra note 15, para. 163; Case of Albán Cornejo et al., supra note 22,
para. 46, and Case of Cantoral Huamaní and García Santa Cruz, supra note 18, para. 112.
133
Cf. Case of Plan de Sánchez Massacre v. Guatemala. Merits. Judgment of April 29, 2004. Series C No. 105,
para. 48; Case of Kimel, supra note 61, para. 102, and Chaparro Álvarez and Lapo Íñiguez. v. Ecuador. Preliminary
objection, merits, reparations, and costs. Judgment of November 21, 2007. Series C No. 170, para. 224.
134
Cf. Case of the Serrano Cruz Sisters v. El Salvador. Merits, reparations, and costs. Judgment of March 1,
2005. Series C No. 120, para. 27.
135
Statement made before notary public by the witness Graciela De León on December 28, 2007 (file of
affidavits and the corresponding observations, f. 8916).
136
Cf. Statement made before notary public by the psychologist, Jacqueline Riquelme Caniuñir, on January 8,
2008 (file of affidavits and the corresponding observations, f. 9091).
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