66
distant and isolated place [...] so that it could not accept the presumption to create
relationships where they did not exist, according to the testimony that had been
presented.”
*
*
147.
*
Article 5 of the Convention establishes that:
1.
Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or
treatment. All persons deprived of their liberty shall be treated with respect for the inherent
dignity of the human person.
[...]
148. The Court considers that it should proceed to examine the possible violation
of Article 5 of the Convention from two different perspectives. First, it should
examine whether or not there was a violation of Article 5(1) and 5(2) of the
Convention to the detriment of Efraín Bámaca Velásquez. Second, the Court will
evaluate whether the next of kin of the victim were also subjected to the violation of
their right to humane treatment.
149. The Court considers that it has been proved that Bámaca Velásquez was
detained by members of the Army and that his detention was not communicated to a
competent judge or to his next of kin (supra 121 h, i).
150. As this Court has already established, a “person who is unlawfully detained is
in an exacerbated situation of vulnerability creating a real risk that his other rights,
such as the right to humane treatment and to be treated with dignity, will be
violated”98.
We should add to the foregoing that: “prolonged isolation and
deprivation of communication are in themselves cruel and inhuman treatment,
harmful to the psychological and moral integrity of the person and a violation of the
right of any detainee to respect for his inherent dignity as a human being”99. Solitary
confinement produces moral and psychological suffering in the detainee, places him
in a particularly vulnerable position, and increases the risk of aggression and
arbitrary acts in detention centers100. Therefore, the Court has stated that, “in
international human rights law [...] incommunicado detention is considered to be an
exceptional instrument and [...] its use during detention may constitute an act
against human dignity.”101
98
Cf. Cantoral Benavides Case, supra note 56, para. 90; Villagrán Morales et al. Case (the “Street
Children” Case), supra note 52, para. 166; and similarly, Eur. Court H.R., Case of Ireland v. the United
Kingdom, Judgment of 18 January 1978, Series A no. 25. para. 167.
99
Cf. Fairén Garbi and Solís Corrales Case, supra note 53, para. 149; Godínez Cruz Case, supra
merits, paras. 164 and 197; and Velásquez Rodríguez Case, supra note 53, paras. 156 and 187.
100
Cf. Castillo Petruzzi et al. Case, supra note 50, para. 195; and Suárez Rosero Case, supra note
53, para. 90.
101
Cf. Cantoral Benavides Case, supra note 56, para. 82; and Suárez Rosero Case, supra note 53,
para. 90.
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