7
b) In recent rulings, the Court concluded that the failure to deliver the mortal
remains to the victim’s next of kin has always caused great pain, uncertainty
and insecurity to them;
c) The same conditions that led the Court to declare the violation of Articles 5(1)
and 5(2) of the Convention in the instant case, still persist;
d) The failure to deliver the victim’s mortal remains to his next of kin “not only
translates as a non-compliance with the judgment of the Court, but also
implies a deprivation of their right to humane treatment as a result of their
constant emotional distress. […] The exhumation, instead of mitigating the
next of kin’s suffering or compensating the violation of their rights, has
increased and deepened their anguish, as the State’s denial to deliver the
mortal remains has prevented them from acting according to their beliefs and
bringing their pain to an end;”
e) The State fails to comply with its international obligation to respect the right
of the victim’s next of kin to know the location of the mortal remains of their
loved one, and
f) Taking into account the severe and urgent situation faced by the victim’s next
of kin and in order to prevent further violations to their right to humane
treatment, it is of utmost importance that the State take provisional
measures “consisting of the immediate delivery of the remains Juan
Humberto Sánchez. While said state obligation is provided for in the judgment
of the Court of June 7, 2003, non-compliance therewith implies additional
violations of the victim's next of kin's rights and, in order to stop said
violations, it is required that said measures be taken.”
10.
Following the instructions of the President, on January 25, 2006, the
Secretary issued a note requesting the State and the Inter-American Commission to
submit their comments on the request filed by the representatives before February
3, 2006.
11.
The brief of February 3, 2006, whereby the Inter-American Commission
presented its comments on the brief of the representatives, contained, inter alia, the
following statements:
a) The duty prescribed in Article 68(1) of the Convention has not been fully
complied with in the instant case, in relation to several state obligations and,
in particular, in relation to the obligation to deliver the mortal remains of Juan
Humberto Sánchez. According to Court’s precedents, the State must fully and
immediately comply with its judgments.
b) The deep pain and anguish suffered by the victim’s next of kin, deriving from
the acts declared by the Court as violations to the Convention, “reflect a
feeling of profound dissatisfaction with the way the State complied with its
obligations;”
c) “The failure to deliver the remains of the victim to his next of kin amounts to
a contempt of the Court’s orders. […] The State’s acts made the victim’s next
of kin to submit to the Court the request aiming at obtaining what, according
to the law, they have been entitled to for 24 months, as from the date of the
Judgment of the Court, and for 13 years, as from the victim’s execution;”
d) In the instant case, the Court verified the constant damage inflicted upon the
victim’s next of kin for the failure to deliver his mortal remains. It is the first
duty of a State to cease any conduct that may be in violation of human rights,
and