30
56.
Article 5(1) of the American Convention sets forth that: “Every person has
the right to have his physical, mental, and moral integrity respected.” In the context
of the instant case, it has been proven that Mr. Wilson Gutiérrez-Soler and his next
of kin have been subjected to a campaign of threats, harassment, surveillance,
arrests, searches and attempts against their lives and their physical integrity (supra
para. 48(14)). As declared by Mrs. Yaqueline Reyes, the consequences of such
persecutions were “terrible” for the family:
This is very hard for me. It has changed our lives; we cannot even go out to go to
the store in peace for fear that someone would try to hurt us. We have to stay
indoors, [...], move from house to house, be under stress [...] be always looking
back. When Wilson left the country, I thought “Wilson is the one with the
problems, not us”. But I was wrong, because the situation continued, because
Wilson left but his brother [Ricardo Gutiérrez-Soler], who had always gone
everywhere with him, stayed behind and they knew him, they went on and
harassing and threatening him. [...] Therefore, it is terrible for us because now
we are the ones with the problem. [...]
57.
Consequently, due their having suffered constant fear, distress and family
separation (supra para. 48(14) to 48(17)), the Court concludes that the next of kin
of Mr. Wilson Gutiérrez-Soler – that is to say, Kevin Daniel Gutiérrez-Niño, María
Elena Soler de Gutiérrez, Álvaro Gutiérrez-Hernández (deceased), Ricardo
Gutiérrez-Soler, Yaqueline Reyes, Luisa Fernanda Gutiérrez-Reyes, Paula Camila
Gutiérrez-Reyes, Leonardo Gutiérrez-Rubiano, Leydi Caterin Gutiérrez-Peña, Sulma
Tatiana Gutiérrez-Rubiano, Ricardo Alberto Gutiérrez-Rubiano and Carlos Andrés
Gutiérrez-Rubiano – have undergone such suffering as would amount to a violation
of Article 5(1) of the American Convention, in relation to Article 1(1) of such treaty,
to their detriment, by the State,.
58.
As regards the determination of those next of kin of Mr. Wilson GutiérrezSoler that have suffered a violation to their right to humane treatment, this Court
acknowledges that in the pleading of petitions and allegations, the representatives
mentioned other persons in addition to the next of kin mentioned in the application,
to wit: Leydi Caterin Gutiérrez-Peña, Sulma Tatiana Gutiérrez-Rubiano, Ricardo
Alberto Gutiérrez-Rubiano and Carlos Andrés Gutiérrez-Rubiano, all of them children
of Mr. Ricardo Gutiérrez-Soler. In that respect, it is noticed by this Court that the
State has objected to these persons being beneficiaries of a reparation, given the
fact that they were not mentioned in the application. Furthermore, in their final
arguments, the representatives only requested “that the children [of Ricardo
Gutiérrez-Soler] which the State recognized as victims be compensated [for moral
damage]”, thus excluding the four persons mentioned above. In spite of the
aforesaid, the Court has determined – on the basis of the affidavits of the
incumbent next of kin (supra para. 41) and of the whole body of evidence in the
case – that these persons have also suffered the same detriment to their mental
and moral integrity as the next of kin of Mr. Wilson Gutiérrez-Soler, who were duly
listed in the application. Therefore, the Court considers that the formerly mentioned
are also victims of the violation of Article 5(1) of the American Convention, in
relation to Article 1(1) of said treaty.
59.
Finally, the Court considers that the acknowledgment of international liability
made by the State constitutes a very important step in the development of this
proceedings and a step towards the enforcement of the principles consecrated in the
American Convention. The Court particularly appreciates the manner in which the
State made such acknowledgment at the public hearing in these proceedings, that is
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