44
includes the community of which the family forms a part. In this regard, the expert witness
Rosalina Tuyuc indicated the grave effects that the Mayan families suffered as a
consequence of the forced disappearances and the displacement, and she stated that:
[t]he armed conflict sadly took the right of many families to be there as a family […], for us the
significance of having family means being with the grandfather, the grandmother, with the
father, with the mother, with all the siblings, with the aunts and uncles [, and this] was one of
the biggest impacts because many of the sons and daughters had to separate, some completely
and others maybe even though under situations of poverty, misery, displacements […] two or
three children stayed together with the mother. Nevertheless, [in many cases] this was not
possible and therefore the impact was that the coexistence of the family was lost [as well as] to
be under the nucleus of the land where they were born.
160. Also, she signaled that the disappearance of the father or the mother not only
signified a change in the roles in the sense that the surviving father has to assume the role
of the mother and of the father at the same time, but that above all, this impeded the
parents transmitting their knowledge in an oral manner, conforming to the traditions of the
Mayan family. In this sense, she expressed that:
The Mayan families […] never abandoned their children, the girls are always with their
mother, […] with the father […] if it is a boy so that it corresponds to make their time equal
they are together with the father to see how to prepare the land, how to classify the seeds,
how the times of the rain are, of summer, of the drought, or of floods, and it is in this way
that […] with [the loss of one of the parents] a long path of learning and oral education is cut
short.
161. Also, the Chitay Rodriguez brothers were prohibited from enjoying from the
coexistence of their family due to the well-founded fear of returning to their place of origin,
when other next of kin had disappeared, as well as the need to feed and educate
themselves. Therefore, they had to grow up separated due to the fact that while their
mother returned to San Martín Jilotepeque with Estermerio and María Rosaura, the other
brother Encarnacion had to stay to work in the capital, his brother Pedro was admitted to a
seminar, and Eliseo went to help an aunt in the capital. This Court notes that this situation
of rupture of the family structure is evident today, given that the three younger siblings live
abroad and only the two older brothers reside in their country of origin. (supra para. 133
and 134).
162. The Court takes into account that the forced disappearance had as its purpose to
punish not only the victim but also his community and his family. (supra para. 67). In the
present case, the Tribunal considers that, the forced disappearance of Florencio Chitay Nech
aggravated the situation of displacement and the cultural uproot that the family suffered. In
this way, the disintegration of their land affected the members of the Chitay Rodriguez
family in a particularly grave manner due to their condition as Mayan indigenous persons.
163. Due to the prior considerations and the assent by the State, the Court finds that
there was a direct effect on the members of the Chitay Rodriguez family due to the constant
threats and persecutions that they suffered, the displacement of which they were the
victims, the uproot from of their community, the fragmentation of their familial nucleus, and
the loss of the essential figure of their father that they suffered through the disappearance
of Florencio Chitay Nech, which was aggravated in the cultural context of this case, and
subsisted after March 9, 1987, constituting a lack of fulfillment on the part of the State of its
obligation to protect each person against arbitrary or illegal interferences against their
family. Consequently, the Court considers that the State is responsible for the violation of
the right of the protection of the family recognized in Article 17 of the Convention, in
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