101
during their childhood. The representatives and the Commission argued that they
had not mentioned her before because they were not aware of the existence of Mrs.
Velásquez due to the language and communication difficulties with the Bámaca
Velásquez family, which is a Mam family, “much more closed in its manner of
communicating certain things concerning their daily life”, and due to the distance
between their places or residence, as “she had to leave the farm where they were
and go to Guatemala city, due to the harassment [to] her husband [whom] they
almost tried to kidnap”. In this regard the Court notes that while this case has been
before the inter-American system for the protection of human rights since 1992, it is
not until November 20, 2001 (supra 8), shortly before the public hearing on
reparations, when the existence of this sister of Mr. Bámaca Velásquez is brought to
the attention of the Court. Nevertheless, this Court takes into account the special
circumstances of the conflict and poor communications in Guatemala at the time of
the events, and it accepts the argument regarding the characteristics of the Mayan
culture, Mam ethnic group, that the Bámaca Velásquez family was a member of,
which was referred to at the public hearing. Therefore, the Court includes Alberta
Velásquez at this stage of the proceedings as a beneficiary of possible reparations,
something to which the State did not object. Thus, her compensation shall be set in
accordance with the abovementioned criteria, taking into account her relationship as
a sister of the victim on his mother’s side.
VII
OBLIGATION TO REPAIR
37.
In operative paragraph nine of the November 25, 2000 Judgment, the Court
decided that Guatemala “must repair damage caused by the violations mentioned in
operative paragraphs 1 to 7” (supra 2). In this Judgment, the Court will decide the
controversy on these issues.
38.
As regards Article 63(1) of the American Convention, the Court has stated
that this provision reflects a common-law norm that is one of the fundamental
principles of contemporary international law regarding the responsibility of the
States. Thus, when an illicit act is committed by a State, its international
responsibility for the violation of an international norm arises immediately, with the
consequent duty of providing reparation and making the consequences of the
violation cease.44
39. Reparation of the damage caused by infringement of an international obligation
requires, whenever possible, full restitution (restitutio in integrum), and this consists
of reestablishing the previous situation. If this is not possible, as in the instant case,
the international court must determine a set of measures that, in addition to
guaranteeing the rights that were infringed, should repair the consequences caused
by the infringements, as well as establish payment of an indemnification as
compensation for damage caused.45
This obligation to provide reparation is
44
See Cantoral Benavides Case, Reparations, supra note 5, para. 40; Cesti Hurtado Case,
Reparations, supra note 5, para. 35; and Villagrán Morales et al. Case, Reparations, supra note 5, para.
62.
45
See Cantoral Benavides Case, Reparations, supra note 5, para. 41; Durand and Ugarte Case.
Reparations (Art. 63(1) American Convention on Human Rights). December 3, 2001 Judgment. C Series
No. 88, para. 25; and Barrios Altos Case. Reparations (Art. 63(1) American Convention on Human Rights).
November 30, 2001 Judgment. C Series No. 87, para. 25.