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is done to her child; a suffering so natural and evident that it does not even need to
be proved – as the case law of the Inter-American Court has maintained – contrary
to the case of the suffering caused to other next of kin, the suffering of a mother is
presumed juris tantum. If this is so, what substantive difference is there between the
suffering caused to the direct victim of the action of the agent and the violation of
the mental or moral integrity of the close next of kin, who suffers this as soon as the
unlawful conduct of that agent occurs?
59.
It is evident that, as I mentioned a few lines previously, we are faced with a
fragile, elusive dividing line between those who are recognized as direct or indirect
victims, and those who are not always classified as such, but benefit from the
reparations decided by the Court. In some cases, this line seems clear; in others, it
is particularly hazy. If a person is affected by the violation committed, should they
not be considered a victim? – because they truly suffer from the fact that a protected
possession is affected and a specific right established in the Convention is infringed –
even though, technically, they are classified as an indirect victim? And if they are
not victims, how should they be classified, and where does their right to receive
some compensation arise from? I return to the example I gave in the preceding
paragraph: the closest relative of the person who loses his life or suffers severe
harm, endures great pain and suffering as a result of this and, consequently, his
mental integrity (which is one of the possessions protected by Article 5(1) of the
American Convention) is affected, even though the agent who perpetrated the
violation did not propose to affect this integrity. Even so, through his unlawful
conduct, the latter has caused this suffering to occur and, thus, has violated the
mental integrity of the third person.
60.
The fact that some compensation for the non-pecuniary damage caused to
other persons is ordered, regardless of the non-pecuniary damage caused to the
immediate and chosen victim, underscores that the former have a legal title that
gives them a right to this compensation, a title that relates to the one possessed by
those who are expressly considered as victims. The right to compensation arises
from a presumption that is the same in both cases: they have suffering harm to their
mental integrity, owing to an unlawful external conduct by a State agent, which
violates the American Convention.
61.
The protection system constructed by the Pact of San José makes no
distinction between direct and indirect effects, nor does it take into account their
mediate or immediate nature. There is a single source of the harm: the violation of a
right; in this case, the right to mental integrity. The juridical effect for the State is
the same: the obligation to repair the harm caused unlawfully. The decision of the
Court is identical in both cases: the payment of a certain amount as compensation
for non-pecuniary damage, to alleviate the pain caused. In view of the foregoing, I
believe that the Court’s approach is correct when examining this problem in the
present case and deciding that “the next of kin of Myrna Mack Chang must be
considered victims because the State has violated their mental and moral integrity”
(para. 232 of the judgment).
62.
It is true that reconsideration of these concepts may extend the universe of
victims, but it is also true that many persons are affected by a fact that violates a
right and suffer impairment of the juridical possessions that the Convention protects.
If we review the case law of the Inter-American Court, we will see that there are a
large number of reparations of a compensatory nature motivated by non-pecuniary
damage caused immediately to the person who is first the alleged victim and,
subsequently, the proven victim. There are also such reparations to subjects whose