2
continued the elaboration of a broad concept of victim of violation. This judgment
progresses in this sense, and distinguishes between, on the one hand, the
infringement of the rights of Efraín Bámaca Velásquez and, on the other, the
violation of the rights of his next of kin and of Jennifer Harbury. It is clear that some
violations directly and immediately affect the former; and others affect Jennifer
Harbury and the closest members of Mr. Bámaca's family, who also suffered the
consequences - effects on the person with legal effects - of the violation of his rights.
5.
It is probable that the Court will re-examine this issue in future decisions. To
that end, it could consider that the person who suffers impairment of his
fundamental rights as the immediate effect of the violation, is a direct victim;
between the victim and the impairment of his rights there is a relation of cause and
effect (in the juridical sense of the connection), without intermediary or interruption.
Conversely, an indirect victim would be the person who experiences the impairment
of his right as an immediate and necessary consequence, according to the
circumstances, of the injury suffered by the direct victim. Under this hypothesis,
the effect on the latter would be the source of the violation experienced by the
indirect victim. The technical distinction between the two categories does not imply
that one of them has a higher rank for the purposes of the protection of the law.
They are equally protected by the Convention and may be dealt with in the
judgment, both to consider them, substantively, as passive subjects of a violation
with claims to reparations, and to attribute them procedural competency, generically
and without distinction.
6.
In this respect, that is, with regard to the violation of Article 5 of the
Convention, the Court has begun, briefly and almost tangentially for the moment, to
examine the difference between torture, on the one hand, and cruel, inhuman and
degrading treatment, on the other (para. 154, where it is also recalled that all these
acts “are strictly prohibited under any circumstance”, as the Court has declared in
the Cantoral Benavides case. Judgment on merits, para. 95), and the three
components of the latter category can also be the object of delimitation and
definition. Thus, in this case, the Court has considered that certain acts denounced
“were deliberately prepared and inflicted, in order to obtain information that was
relevant for the Army from Efraín Bámaca Velázquez. According to the testimonies
received in this proceeding, “the alleged victim was submitted to grave acts of
physical and mental violence during a prolonged period of time for the said purposes
and, thus, intentionally placed in a situation of anguish and intense physical
suffering, which can only be qualified as both physical and mental torture” (para.
158).
7.
The difference between torture and other acts assembled under Article 5(2) of
the Convention, is not to be found in the pre-ordained and deliberate nature of some
of them, because, generally, they all have these characteristics; or in the purpose for
which they are inflicted, which may also be common to all. The description of torture
contained in conventions on this subject - the universal and the American - offers
elements that also characterize cruel and inhuman treatment. In other words, the
latter could be differentiated from the former by the gravity of the suffering caused
to the victim, by the intensity of the pain - physical or moral - that is inflicted, by the
characteristics of the prejudicial action and of the reaction that this causes in the
person who suffers it.
8.
For example, the Court maintained that what Mrs. Harbury and the next of
kin of Mr. Bámaca Velásquez suffered, as a result of the obstacles they confronted in