36.
In both the Cantoral Benavides case (pars. 104 and 106) and in the present
Bámaca Velásquez case (par. 158), the Court established, inter alia, the violation of
Article 5(2) of the American Convention, in view of the tortures suffered by the direct
victim (Mr. Cantoral Benavides and Mr. Bámaca Velásquez, respectively). The
prohibition of cruel, inhuman or degrading treatment, in the terms of the same
Article 5(2) of the American Convention, retains relevance, as recognized by the
Court in the present Judgment, for the sufferings undertaken by the indirect victims,
the close relatives of Mr. Bámaca Velásquez. The prohibition of torture as well as
cruel, inhuman or degrading treatment, under the American Convention and other
human rights treaties, is absolute.
37.
In fact, the juridical content itself of the absolute prohibition of cruel,
inhuman or degrading treatment, in particular, has had a domain of application
widened ratione materiae, comprising new situations perhaps not foreseen at the
moment of its formulation in human rights treaties 36. Thus, the prohibition of such
treatment has been invoked, under the European Convention of Human Rights, in
cases pertaining also to non-extradition (such as the cas célèbre Soering versus
United Kingdom (1989) and non-deportation37. This has taken place by means of an
evolutive interpretation of the international instruments of protection of the rights of
the human being.
38.
The absolute prohibition of cruel, inhuman or degrading treatment has
experienced, furthermore, a widening also ratione personae, comprising, in given
cases (such as those of forced disappearance of person), as to the titularity of rights,
also the relatives of the direct victim (in their condition of indirect victims - cf.
supra). Thus, the Inter-American Court has correctly established that, in
circumstances such as those of the present Bámaca Velásquez case, the victims are
the disappeared person as well as his close relatives.
39.
Already on previous occasions, such as in the Blake case (Judgments on the
merits, of 24.01.1998, and reparations, of 22.01.1999), and in the "Street Children"
case (Judgment on the merits, of 19.11.1999), the Inter-American Court correctly
established the juridical foundation of the widening of the notion of victim, to
comprise, in the specific circumstances of the aforementioned cases (in which the
mortal remains of those victimized had been non-identified or hidden for some time),
also the close relatives of the direct victims. There persisted, nevertheless, the need
to develop, as I have attempted to do in this Separate Opinion, the question of the
36
.
For example, in its Provisional Measures of Protection (of 18.08.2000) in the case of the Haitians
and Dominicans of Haitian Origin in the Dominican Republic, the Inter-American Court of extended such
Measures to rights other than the fundamental rights to life and to personal integrity, in such way as, e.g.,
to impede the deportation or the expulsion of certain individuals, and to allow their return and family
reunification (par. 13). And in the Provisional Measures of Protection which the Court has just adopted
yesterday (24.11.2000), in the case of the Community of Peace of San José of Apartadó, it extended such
Measures to internally displaced persons in Colombia (resolutory point n. 6).
37
.
On such extensive application of the absolute prohibition of inhuman or degrading treatment, cf.,
e.g., H. Fourteau, L'application de l'article 3 de la Convention Européenne des Droits de l'Homme dans le
droit interne des États membres, Paris, LGDJ, 1996, pp. 211-265. - Likewise, Article 8 of the European
Convention on Human Rights, on the respect to privathe and family life, has had an interpretation and
application expanded ratione materiae to cases pertaining to, e.g., non-deportation (such as, for example,
the important cases Moustaquim versus Belgium, 1991, and Beldjoudi versus France, 1990); R,
Cholewinski, "Strasbourg's `Hidden Agenda'?: The Protection of Second-Generation Migrants from
Expulsion under Article 8 of the European Convention on Human Rights", 12 Netherlands Quarterly of
Human Rights (1994) pp. 287-306.