106
b)
the second period, beginning in the month of March, 1997, covers the
remaining years in the victim’s life expectancy. In this connection, the Court
recognizes that it is not possible to establish with certainty what the
occupation and income of Mr. Bámaca Velásquez would have been when he
undertook a work activity in his country. Bearing in mind the lack of certain
probatory elements on the possible income the victim could have earned, the
Court decides in equity to set the amount to be paid as compensation for the
loss of income during that period as US$100,000.00 (one hundred thousand
United States dollars).
52.
This Court has pointed out in previous cases that, according to the rules of
succession, the lost income of a direct victim should be given first of all to his spouse
(supra 32). In the instant case, the Court takes into account the request made by
the representatives of the victims and by the Commission regarding inclusion as
beneficiaries of the compensation due to Mr. Bámaca Velásquez, in addition to Mrs.
Harbury, of José León Bámaca Hernández as well as Egidia Gebia and Josefina, both
Bámaca Velásquez, based on the statement by witness Monterroso regarding the
Mayan custom that the elder son usually contributes to the sustenance of his parents
and siblings. It should be added that the juridical nature of this Courts enables it to
weigh the effects of its judgments as a function of the factual framework of the sub
judice case. The Court deems that due to the position of Bámaca Velásquez as elder
brother, a significant fact in the Mam culture, Mam ethnic group, as well as the
socio-economic conditions of his family, the victim once involved in work activities
after the “Pease Accord” signed between the guerrilla forces and the Guatemalan
army, would have contributed financially to the sustenance of his father and sisters,
as has been stated by Mrs. Harbury, since he was fond of them as is usual in the
Mayan culture where the whole family is one.
53.
In view of the aforementioned considerations, this Court deems it appropriate
to divide the total amount of US$100,000.00 (one hundred thousand United States
dollars) to be distributed, in equal parts, between Jennifer Harbury, José León
Bámaca Hernández, and Egidia Gebia and Josefina Bámaca Velásquez.
*
*
*
54.
In view of the information received, case law, and proven facts, the Court
declares that compensation for pecuniary damages in the instant case must also
include the following:
a)
a sum of money in accordance with the income not earned by Mrs.
Harbury during the period from March 12, 1992 to January, 1997. As
was proven in the merits stage, during that period Mrs. Harbury spent
much of her time taking steps to determine the whereabouts of her
husband as well as struggling against the obstructions and acts of
denial of justice, which did not allow her to practice her profession.
This Court has maintained in its case law that compensation should be
granted for detriment to a victim of a human rights violation who,
during a given period, was unable to work, whether due to actions or
omissions by agents of the State. The Court deems that it has been
proven that Mrs. Harbury had income that she lost as a consequence
of the facts in this case, and sets as compensation in equity, taking
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