11
Chamber of the Court of Appeals of Retalhuleu revoked said decision
because “the legal prerequisites necessary to justify the admissibility of
the dismissal granted were not present.”11 The Court was not informed,
upon issuing its Judgment in the year 2000, of the dismissal that
occurred in 1999 (supra Considering 9(a)), it was only informed of the
dismissal that occurred in 1995. Therefore, the Court could not rule on
said dismissal that occurred in 1999.
On the other hand, the Court verified that the special prosecutor
appointed to the case “tried to include Jennifer Harbury as a special
prosecutor in the proceeding, but was not successful.” Additionally, the
Court established that on June 19, 1995, the Second First Instance
Court for Criminal Activity, Drug Trafficking, and Crimes against the
Environment of Coatepeque, Quetzaltenango, as a result of the appeal
filed by Colonel Julio Roberto Alpírez, suspended the exhumation that
was going to be carried out at Las Cabañas until the appeals court
issued its ruling.12 The special prosecutor indicated that in said
investigation “no officer whatsoever was convicted.” Said prosecutor
“was subject to pressure, attacks, and threats because of its role” in the
investigation of the present case.13
19.
Likewise, the Inter-American Court considered that “even though
in this case various domestic appeals ha[d] been filed to determine the
whereabouts of Bámaca Velásquez, such as habeas corpus, a special
inquiry proceeding, and criminal cases […], none of them were effective,
and to date the whereabouts of Bámaca Velásquez is still unknown.”
Specifically, the Tribunal indicated that:
20.
Not only were these recourses not effective, but also direct actions from high-level State
agents were carried out to prevent them from having positive results. These obstructions
were especially evident in the multiple exhumation diligences that were attempted, which
to date have not led to the identification of the remains of Efraín Bámaca Velásquez […]. It
is unquestionable that the situation described prevented Jennifer Harbury and the next of
kin of the victim from knowing the truth regarding his fate.
Taking into account the aforementioned, the Court verified that in
Guatemala “there was and is a state of impunity regarding the facts of
the present case,” “since despite the State’s obligation to prevent and
investigate, it did not do so.”14 The Tribunal considered that, “it has been
21.
11
Case of Bámaca Velásquez v. Guatemala. Merits. Judgment of November 25, 2000. Series C No. 70,
para. 85.
12
Case of Bámaca Velásquez v. Guatemala, supra note 11, para. 88.
13
Case of Bámaca Velásquez v. Guatemala, supra note 11, para. 89 and 93.
14
Case of Bámaca Velásquez v. Guatemala, supra note 11, para. 211.