54
which, it should forward legible copies of the documents offered in its communication of December 4,
1998, (supra 56) and, also, that it had submitted documents that had not been offered in that
communication.
112.
The Court examined the 26 documents presented by the State. Of these, five corresponded to
telegrams sent by State agents regarding the encounter of March 12, 1992, when the alleged facts of the
case commenced; ten were related to the appropriateness of two of the witnesses who made statements
in the case; one was about the death of Bámaca Velásquez and 10 about the specific situation of two
Army officers during 1992. Although the State did not make any statement about the reasons for the
time-barred presentation of these elements of evidence and, therefore, did not explain the exceptional
circumstances that would justify their admission by the Court, the latter considers that they constitute
useful evidence inasmuch as they contain information about the facts examined, and accordingly
incorporates them into the probative evidence based on Article 44(1) of the Rules of Procedure and deems
them to be circumstantial evidence within the probative evidence, in accordance with the principle of
"sound criticism."60
*
*
*
113.
The expert testimony provided by Helen Mack was not contested or objected to, nor was its
authenticity doubted, so the Court considers it to be valid.
114.
With regard to the testimonies presented, in its final written arguments, the State made the
following observations with regard to the testimonies of Santiago Cabrera López, Jennifer Harbury and
Otoniel de la Roca Mendoza. The Court summarizes below the State's principal objections to these
testimonies:
a)
regarding the testimony of Santiago Cabrera López, it indicated that there are
irregularities with regard to his position and functions in the Guatemalan Army, since they vary
from what was stated by the witnesses who declared on November 22 and 23, 1998; it therefore
requests that this testimony should be rejected;
b)
as for the testimony of Otoniel de la Roca Mendoza, it stated that he is “a fugitive from
Guatemalan justice, that his testimony was given in order to obtain political asylum”, and that it
contradicts that of Cabrera López;
c)
in relation to the two witnesses mentioned above, it said that the inaccuracy of their
testimonies is proved by the testimonies of Salvatierra Arroyo, Simeón Cum Chutá and Soto
Bilbao; and
d)
with regard to the testimony of Jennifer Harbury, it stated that, on the one hand, she
had a financial interest in the case and, on the other, the “Guatemalan legal system does not
permit the execution of decisions or judgments pronounced abroad”, so that it was not possible
to register her marriage in the national registries.
115.
Thus, the State merely made general observations on the alleged lack of competence or
impartiality of the testimonies, basing itself on statements of agents or former agents of the State, who
have been mentioned as possibly being responsible for the facts of the case. The Court believes that the
statements of such witnesses, who have a direct interest in the case, are not sufficient to invalidate
testimonies that coincide fundamentally with other types of evidence that have not been objected to, and
therefore the Court is unable to reject them.
116.
It is also worth noting that while the witnesses de la Roca and Cabrera give a concurring version
of the events that led to the disappearance of Bámaca Velásquez, the military officers who made
statements before the Court and who, due to their functions, should have relevant information, merely
denied or expressed their lack of knowledge of the events.
117.
As for the objections relating to the alleged criminal history or proceedings pending against de la
Roca Mendoza and Urízar García, this Court has established that, in such circumstances
60
Cf. Cantoral Benavides Case, supra note 56, para. 52; Durand and Ugarte Case, supra note 56,
paras. 52-56; Villagrán Morales et al. Case (the “Street Children” Case), supra note 52, para. 71; Castillo
Páez Case. Reparations, supra note 56, para. 40; Loayza Tamayo Case. Reparations, supra note 56, para.
57; and Paniagua Morales et al. Case, supra note 50, para. 76.
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