16
by the specialized contemporary bibliography in what refers to the serious traumas suffered by
the closest next of kin of fatal victims51 (also victims), and even by the community to which the
victims belonged.52
55.
I allow myself to recall that, in its Judgment of 05.25.2001 in the case of the White Van
(Paniagua Morales et al. v. Guatemala - reparations), the Court required the onus probandi of
the next of kin of the victims specifically in relation to material compensations, understanding
as the “next of kin of the victim” an “ample concept”, covering children, parents, and siblings
(para. 86). But the criterion with regard to moral damage was, in the correct understanding of
the Court, different:
"In the case sub judice, the non-pecuniary damage inflicted on the victim is
evident, because it is only human nature that any person subjected to the aggression and
abuse that she 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." (para. 106)53
56.
And, in the same Judgment in the case of the “White Van” (Paniagua Morales et al.),
the Court added that
In the case of the victim’s parents, it is not necessary to demonstrate the nonpecuniary damage, because this is presumed. Similarly, the physical and mental suffering
of the victim’s daughter can be presumed.
With regard to her siblings, it is necessary to take into account the degree of
relationship and affection that existed between them. In the case sub judice, it can be
seen that there were close ties between the victim and her brother, Alberto Antonio
Paniagua Morales, and her sister-in-law (...).
With regard to the victim’s other siblings, it is evident that they form part of the
family and even when they do not appear to have participated directly in the measures
taken in the situation by the mother and by the sister-in-law, this does not mean that
they were indifferent to the suffering caused by the loss of their sister, particularly when
the circumstances of death were so singularly traumatic. Therefore, considering that
they should be beneficiaries of compensation, the Court must determine the amount
according to the principle of fairness and, consequently, establishes compensatory
reparation for non-pecuniary damage for the Paniagua Morales siblings." (paras. 108110)54
57.
In the same line of reasoning, in its Judgment of 02.22.2002 in the case of Bámaca
Velásquez v. Guatemala (reparations), the Court once again duly distinguished the reparations
for the next of kin of the victims due to material compensations (regarding which the onus
probandi would correspond, naturally, to those next of kin – para. 34), from the reparations to
the next of kin – acting based on a right of their own (para. 33) – based on their suffering, for
.
Cf., v.g., inter alia, B. Engdahl, M. Kastrup, J. Jaranson y Y. Danieli, "The Impact of Traumatic
Human Rights Violations on Victims and the Mental Health Profession's Response", in The Universal
Declaration of Human Rights: Fifty Years and Beyond (eds. Y. Danieli, E. Stamatopoulou y C.J. Dias),
Amityville/N.Y., Baywood Publ. Co., 1999, pages 345-346.
51
.
Cf., v.g., inter alia, C. Martín Beristain y G. Donà, Enfoque Psicosocial de la Ayuda Humanitaria,
Bilbao, Universidad de Deusto, 1997, pages 67-70.
52
53
.
Emphasis added.
54
.
Emphasis added.
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