SEPARATE OPINION OF
JUDGE A.A. CANÇADO TRINDADE
1.
I vote in favour of the adoption by the Inter-American Court of Human Rights
of the present Judgment on the Bámaca Velásquez case (Merits) in all resolutory
points. Certain transcendental questions raised in the present case lead me,
moreover, to leave on the records some thoughts, in the present Separate Opinion,
in order to substantiate my conception and position on such questions. From the
start, it is truly painful and worrisome to find out that this is not the first time that,
in cases submitted to the consideration of the Inter-American Court, the issue is
presented, in the framework of the forced disappearance of persons, of the lack of
respect for their mortal remains.
2.
One may recall, for example, the cases already decided by this Court,
Velásquez Rodríguez (1988), Godínez Gruz (1989), Caballero Delgado and Santana
(1995), Garrido and Baigorria (1996), and Castillo Páez (1997), in which the
whereabouts of the mortal remains of the disappeared persons continues being
ignored to date. The same has taken place in cases of violation of the right to life
without the occurrence of forced disappearance of persons, - Neira Alegría (1995),
Durand and Ugarte (2000), - in which one has not succeeded so far to identify the
mortal remains of the victims. To these the cases of the Street Children (1999) and
of Blake (1998) may be added, in which the mortal remains of the victims were nonidentified or hidden for some time, having subsequently been found.
3.
The arguments before the Court, referred to in the present Judgment on the
Bámaca Velásquez case, introduce a new element for the consideration of this
tragedy. In its final written arguments (of 22.10.1999), the Inter-American
Commission of Human Rights warned that, in the internal conflicts in countries of
Latin America, many individuals were "kidnapped in clandestine centres of detention,
were object of tortures", as well as "were burried without dignity nor respect in
graves without name", or thrown out "from airplanes into the sea" (par. 123).
4.
In the public hearing before the Court on 16 June 1998, the Inter-American
Commission, in its final oral oral pleadings, referred to "the anguishes and
sufferings" undertaken by the relatives of Mr. Bámaca Velásquez as a consequence
of his forced disappearance (par. 145(f)). In its aforementioned final written
arguments, the Commission singled out, in this respect, the repercussion, in the
maya culture - to which Mr. Bámaca Velásquez belonged, - of not having given a
worthy burial to his mortal remains, "for the central relevance which has in his
culture the active link which unites the living with the dead", as the "lack of a sacred
place where to come to in order to cultivate this link constitutes a deep concern
which is diclosed by the testimonies of many maya communities" (par. 145(f)).
5.
This new element for the examination of the question, pointed out by the
Commission, is not to pass unnoticed in the determination of the violation, correctly
established by the Court in the present Judgment (resolutory point n. 2) in the
Bámaca Velásquez case (Merits), of Article 5(1) and (2) of the American Convention
on Human Rights, to the detriment not only of Mr. Efraín Bámaca Velásquez but also
of his close relatives. The negligence and lack of respect for the mortal remains of
the victims - disappeared or not - of violations of human rights, and the impossibility