47
b)
the psychological suffering and distress that his next of kin
experienced, owing to the fruitless search for the victim, the abandonment of
his body on a path and its identification, during which they could see the
severe injuries suffered by the victim; also, the anguish due to the impunity
and the need of the victim’s companion and child to leave Guatemala City for
safety reasons.
The State’s arguments
123. The State indicated that it considered US$10,000.00 (ten thousand United
States dollars) to be an appropriate amount, to be delivered to the “victim’s legal
heirs.”
The considerations of the Court
124. This Court has indicated the general criteria that regulate the reparation of
non-pecuniary damage, which should also be considered in the case of Julián
Salomón Gómez Ayala (supra 104 and 105). The non-pecuniary damage inflicted on
the victim is evident, because it is only human nature that any person subjected to
aggression and abuse, such as those he endured (unlawful detention, torture and
death), experiences profound physical and mental suffering, which extends to the
closest members of the family, particularly those who had a close affective
relationship with the victim. The Court considers that no evidence is required to
reach this conclusion
125. The parents, companion and son of the victim, also experienced the situation
mentioned in the previous paragraph and the Court must presume that the grave
violations against Gómez Ayala had repercussions on them. This presumption has
not been disproved by the State, and therefore it is in order to grant compensatory
damages for non-pecuniary damage to these next of kin.
126. In the case of the victim’s siblings, as members of the family, it must be
considered that they were not indifferent to the suffering of Julián Salomón Gómez
Ayala, despite the objection posed by the State (supra 110). Consequently, the
victim’s siblings will also be beneficiaries of non-pecuniary damage, and, in fairness,
the Court establishes this in the sum of US$7,000.00 (seven thousand United States
dollars) to be distributed between the Gómez Ayala siblings.
127. In view of the foregoing and in fairness, the Court establishes the global
amount of US$27,000.00 (twenty-seven thousand United States dollars) for nonpecuniary damage caused to the victim and his next of kin. This amount must be
distributed as follows: US$20,000.00 (twenty thousand United States dollars),
divided in equal parts between Bertha Violeta Flores Gómez, the victim’s companion,
Julio Salomón Gómez Flores, his son, and his parents, Petronilo Gómez Chávez and
Blanca Esperanza Ayala de la Cruz. And also US$1,000.00 (one thousand United
States dollars) each for Danilo Abraham, Deifin Olivia, Ingrid Elizabeth, Israel, Jorge
Isaías, Douglas Moises and Lidia Marisa, all Gómez Ayala.
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WILLIAM OTILIO GONZÁLEZ RIVERA
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