D.
Analysis of the right to life, liberty and personal security (Article I) and the right to
protection for mothers and children (Article VII) of the American Declaration, and the
right to personal integrity (Article 5.1) of the American Convention
241.
Article I of the Declaration recognizes the right of every person to personal integrity. Article
5.1 of the American Convention states that “[e]very person has the right to have his physical, mental, and
moral integrity respected.” Regarding the next of kin of the victims of certain human rights violations, the
Court has indicated that they may be considered, in turn, victims themselves. 370 Article VII of the same
instrument states that “[…] all children have the right to special protection, care and aid.”
242.
The Court has repeatedly stated that the next of kin of the victims of certain human rights
violations can be, in turn, victims themselves.371 Specifically, the Court has considered that the mental and
moral integrity of the next of kin of victims can be affected as a result of the particular circumstances of the
violations perpetrated against their loved ones and owing to the subsequent acts or omissions of the
domestic authorities in relation to these facts.372 Also, the Court has stated that “[t]he obligation to investigate
human rights violations is among the positive measures that the State must adopt to guarantee the rights
established in the Convention. Additionally, the State must, if possible, try to reestablish a right that has been
violated and, if applicable, repair the damage produced by human rights violations”. 373 In this regard, the
Court has stated that a lack of effective remedies is a source of additional suffering and anguish for the
relatives of the victims.
243.
The consequences of violence and impunity may have a particularly detrimental effect on the
relatives of the victims who are minors. In this regard, the Court observed in the case of the Las Dos Erres
Massacre that the children relatives of the victims, “[h]ave suffered infringements to their physical and
psychological health, particularly from the prolonged lack of justice and impunity in the instant case, and that
said experiences have affected their social […] relations, altered their family dynamics”.374
244.
Also, the Court has determined that it can presume a harm to the right to mental and moral
integrity of direct family members of victims of certain violations of human rights by applying a presumption
iuris tantum regarding mothers and fathers, daughters and sons, husbands and wives, and permanent
companions, when and if they correspond to the specific circumstances of the case. In the case of said direct
family members, it corresponds to the State to disprove said presumption. 375
245.
The Commission notes that, as has been discussed, the State is responsible for the arbitrary
detention, torture and murder of the journalist, for the dissemination of false information about the
circumstances of his death and for failing to investigate with due diligence this crime, set in systematic
patterns of human rights violations. These facts have seriously affected the mental and moral integrity of the
relatives identified of the instant case.
370 Corte I.D.H., Case of Cantoral Huamaní and García Santa Cruz v. Peru. Preliminary Objection, Merits, Reparations, and Costs.
Judgment of July 10, 2007. Serie C No. 167. para. 112; and Case of Bueno Alves v. Argentina. Merits, Reparations, and Costs. Judgment of
May 11, 2007. Serie C. No. 164. para. 102.
371 I/A Court H.R. Case of Cantoral Huamaní and García Santa Cruz v. Peru. Preliminary Objection, Merits, Reparations, and
Costs. Judgment of July 10, 2007. Serie C No. 167. Para. 112; I/A Court H.R. Case of Bueno Alves v. Argentina. Judgment of May 11, 2007.
Serie C. No. 164. Para. 102.
372 I/A Court H.R. Case of Cantoral Huamaní and García Santa Cruz v. Peru. Preliminary Objection, Merits, Reparations, and
Costs. Judgment of July 10, 2007. Serie C No. 167. Para. 112; I/A Court H.R. Case of Vargas Areco v. Paraguay. Judgment of September 26,
2006. Serie C No. 155. Para. 96.
373 I/A Court H.R. Case of Valle Jaramillo et al. v. Colombia. Merits, Reparations, and Costs. Judgment of November 27, 2008.
Serie C No. 192. Para. 98; I/A Court H.R. Case of Velásquez Rodríguez v. Honduras. Judgment of July 29, 1988, Serie C No. 4. Para. 166; I/A
Court H.R. Case of Heliodoro Portugal v. Panamá. Judgment of August 12, 2008. Serie C No. 186. Para. 142; I/A Court H.R. Case of García
Prieto et al. v. El Salvador. Judgment of November 20, 2007, Serie C No. 168. Para. 99.
374 I/A Court H.R., Case of Las Dos Erres Massacre v. Guatemala. Preliminary Objections, Merits, Reparations, and Costs.
Judgment of November 24, 2009. Serie C No. 211, par. 215.
375 I/A Court H.R. Case of Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil. Preliminary Objections, Merits, Reparations, and
Costs. Judgment of November 24, 2010. Serie C No. 219, para. 235.
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