4
legal norms14 which seek to protect him; in effect, law seeks to protect the human
being for even after his death, e.g., in imposing the respect for his mortal remains15. To
those who are alive, it is of fundamental importance the intangibility of their own legal
personality, as a limit to all the manifestations of arbitrary State - or any other - power.
But the thinkers who in the past have sustained, in the domain of Law, the communion
between all human beings16, have thought only in those who are alive. In my view, this
communion extends also to the dead, in relation to those who have survived them.
9.
In the present case Bámaca Velásquez, the Court has duly taken into account
and stressed the importance of the respect for the mortal remains of a person, and the
special meaning that this has in particular for the maya culture, to which belonged the
victim, Mr. Efraín Bámaca Velásquez. In distinct parts of the present Judgment, the
Court has taken note that, for those who belong to that culture, the cultural cycle
formed by life and death is closed with the burial rites, which provide a "convivencia" of
the living with the dead and an "encounter" between generations17. These "encounters"
of the living with their dead have a whole pedagogy, which preserves an "integrated
culture", and renders it possible that "values of an ethical and moral kind" be
assimilated by the sons and grandsons, who benefit themselves from all the
accumulated experience18. Thus, one is not only before an encounter of the dead with
his own ancestors, but also before the projection of this encounter into the persons of
the living, of the new generations19.
II.
The Projection of Human Suffering in Time.
10.
In the public hearing on reparations, of 28-29 November 2001, before this
Court, in the present case Bámaca Velásquez, the projection in time of the suffering of
the widow of the victim, Mrs. Jennifer Harbury, was pointed out. She herself declared
that since what occurred, one decade ago (in 1992), with her husband, until the
present, the "very hard reality" of the facts has awaken in her constant "nightmares",
has made her hear "cries in the night" (imagining her
14
.
Already in my Separate Opinion in the Blake versus Guatemala case (Judgment as to the merits, of
24.01.1998), I saw it fit to indicate the décalage between the chronological time, the biological time (of the life
of the human beings), and the time of the juridical solutions: the time in which we live, - I observed, "besides being an unfathomable mystery which has always accompanied human existence from the beginning
until its end, is indifferent to legal solutions devised by the human mind; and the time of human beings,
applied to their legal solutions as an element which integrates them, not seldom leads to situations which defy
their own legal logic", - as illustrated by the present Blake case (paragraph 6).
15
.
Vicente Ráo, O Direito e a Vida dos Direitos, 5a. ed., São Paulo, Ed. Rev. dos Tribs., 1999, p. 52.
16
.
Cf., e.g., ibid., pp. 923 and 641.
17
.
Paragraph 81, and cf. par. 21. As pointed out in a declaration by an expert before the Court (taken
into account by this latter), the rendering of the mortal remains allows the family to "reintegrate" in a body
the spirit, and "to close down the cultural cycle" of life and death; cf. CtIADH, Transcripciones de la Audiencia
Pública..., op. cit. infra n. ( ), pp. 71-72, and cf. p. 64.
18
.
Paragraph 20(c), and cf. par. 21(a).
19
.
CtIADH, Transcripciones de la Audiencia Pública..., op. cit. infra n. (20), p. 118.