42
151. In conclusion of the foregoing, this Tribunal considers that the forced disappearance
has been maintained since the recognition of the adjudicatory Jurisdiction of the Court
effectuated on March 9, 1987. As a consequence, the Court considers that the State has not
guaranteed to the members of the Chitay Rodríguez family their right of movement and
residence for which it is responsible for the violation of Article 22 of the American
Convention, in relation to Article 1(1) of the same, to the detriment of Encarnación, Pedro,
Estermerio, Eliseo, and María Rosaura, all with the last name of Chitay Rodríguez.
B.
The impacts on the Chitay Rodriguez family and on the cultural life of the
indigenous children.
152. Both the Commission as well as the representatives alleged that the Chitay
Rodriguez family was disintegrated as a consequence of the constant threats and
persecutions that they suffered before, during, and after the disappearance of Florencio
Chitay. They coincided also in their manifestation that Estermerio Chitay witnessed, as a
five-year-old, how his father was beaten and forcibly disappeared, which constituted a
violation to the rights of the child.
153. Additionally, the representatives alleged the violation of the rights of the child to the
detriment of Eliseo, Estermerio, and Maria Rosaura Chitay Rodrigez because “[t]he familial
disintegration and the forced constitution of a single parent home [constituted specific
violations] to the rights of the child, that […] when as a consequence of an act of the State
signifies a full denial of the call to protect the family[,] because it presents obstacles to the
possibility of comprehensive and healthy growth of the child and […] does not permit the
permanence of a family foundation carried out by a man and a woman […].” Also, the
representatives highlighted that the children of Florencio Chitay Nech were seen as forced to
live in a culture that was not their own, which caused them the loss of their identity and
cultural uproot.
154. For its part, the State recognized its responsibility for these facts and accepted the
responsibility for the alleged violations regarding Articles 17 and 19 of the Convention, in
relation to Article 1(1) of the same.
*
*
*
155. To highlight first, the Court observes that the alleged fact on which the Commission
and the representatives alleged the violation of Article 19 of the Convention in regard to
Estermerio Chitay is based upon the fact that on April 1, 1981, he, as a five-year-old,
witnessed his father being beaten and forcibly disappeared. The Court will not give a ruling
about such allegation, since the fact occurred before March 9, 1987, the date on which
Guatemala recognized the adjudicatory jurisdiction of the Court. Regarding Articles 17 and
19 of the Convention regarding Pedro, Encarnacion, Eliseo, Estermerio and Maria Rosaura
Chitay Rodriguez, this Tribunal notes that if the allegations of the Commission and the
representatives are based on the threats, the families displacement, harassments, and the
forced disappearance of Florencio Chitay Nech, acts that occurred prior to the Court’s
jurisdiction, these facts determined that the family structure remain disintegrated until
after this date, the reason for which this Tribunal affirms its jurisdiction in order to hear of
the same and of its international juridical consequences.
B.1
The disintegration of the Chitay Rodríguez family
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