damage caused by the victim’s death to his next of kin or to third parties may be
claimed by them, in their own right51.
87.
The Court considers that José Carlos Trujillo Oroza’s mother, Gladys Oroza de
Solón Romero, is her son’s heir, and succeeds him in the right to be compensated for
the sufferings that he endured in life, so that the total amount that the Court
establishes for this concept should be delivered to Mrs. Oroza de Solón Romero.
88.
In the case of the immediate next of kin of José Carlos, who are also direct
victims of the violation of various articles of the American Convention (supra para.
55), in order to establish the compensation for non-pecuniary damage, the Court
considers that:
a)
the anguish and uncertainty that the disappearance and lack of
information about the whereabouts of the victim caused his next of kin
resulted in non-pecuniary damage52.
Indeed, the circumstances of the
disappearance of José Carlos Trujillo Oroza caused his parents and brothers
intense suffering and distress, and also a feeling of insecurity, frustration and
impotence in the face of the failure of the Bolivian public authorities to
investigate the facts. The family’s suffering, which violates Article 5 of the
Convention, cannot be disassociated from the situation arising from the
forced disappearance of José Carlos Trujillo Oroza, which is still continuing at
the date this judgment is delivered53. In conclusion, the Court considers that
the grave non-pecuniary damage suffered by the four members of José Carlos
Trujillo Oroza’s family has been fully demonstrated.
b)
the fact that the Court presumes that the death of a person causes his
parents a non-pecuniary damage, so that it is not necessary to prove it,
should also be born in mind54. As this Court has said, “we can admit the
presumption that the parents have suffered mentally for the cruel death of
their children, since it is human nature that every person feels pain in the
face of the suffering of a child.”55
c)
regarding the non-pecuniary damage caused to the victim’s mother,
Gladys Oroza de Solón Romero, it is obvious that the disappearance of her
son, particularly in the circumstances in which this occurred, has caused her
severe distress. The events caused a serious change in the course that her
51
cf. The “Street Children” case (Villagrán Morales et al.). Reparations, supra note 3, para. 68; The
“White Van” case (Paniagua Morales et al.). Reparations, supra note 4, para. 85; and Castillo Páez case.
Reparations, supra note 29, para. 59.
52
cf. Bámaca Velásquez case. Judgment of November 25, 2000. Series C No. 70, paras. 160 and
165; Blake case. Reparations, supra note 45, para. 56; and Castillo Páez case. Reparations, supra note
29, para. 87.
53
cf. Bámaca Velásquez case, supra note 52, paras. 160 and 165; Blake case. Reparations, supra
note 45, para. 57; and Blake case. Judgment of January 24, 1998. Series C No. 36, paras. 114 and 116.
54
cf. Cantoral Benavides case. Reparations, supra note 3, paras. 37 and 61a); The “Street
Children” case (Villagrán Morales et al.). Reparations, supra note 3, para. 66; and The “White Van” case
(Paniagua Morales et al.). Reparations, supra note 4, paras. 108, 125, 143 and 158.
55
Aloeboetoe et al. case. Reparations, supra note 28, para. 76; and cf. Castillo Páez case.
Reparations, supra note 29, para. 88; Loayza Tamayo case. Reparations, supra note 31, para. 142; and
Garrido and Baigorria case. Reparations, supra note 36, para. 62.