5
conducted in the cemetery of the municipality of Nuevo San Carlos, Retalhuleu,
which had not been easy because they had either moved or died.
11.
That the State informed the Court that a witness had been located who
“state[d] that he had seen Efraín Bámaca in a military area in San Marcos in [...]
1992” and provided “important information about the state in which he saw Bámaca
and [...] regarding some military officers in charge of that military area.” In addition,
Guatemala pointed out that, after the visit of the representatives of the victim to
Guatemala, several meetings were held with different agents and agencies of the
State. It was agreed that “the case will be referred to the Human Rights Prosecutor’s
Office, located in the capital city, which is a special Prosecutor’s Office created in 2005
to investigate this type of cases that occurred during the internal armed conflict in
Guatemala.” Furthermore, the State informed the Court of the “strengthening of the
Human Rights Prosecutor’s Office,” the “analysis and investigations unit” and the
“Criminalistic Investigation Division of the Attorney General’s Office.” Finally, the
agents of the State expressed their frustration at the “wall of impunity, given that
impunity is structural in Guatemala” and requested cooperation and ideas to tackle
such impunity.
12.
That the representatives stated that there had been no progress in the criminal
investigation and delivery of the remains to the family. They stressed that while this “is
a case of forced disappearance, there are eyewitnesses to the victim’s detention” and
“torture.” They added that “those witnesses are alive and some of them are in
Guatemala, and the military authorities who participated in the incidents are fully
identified, which should at least be enough to link them to the case.” As regards the
specific problems of the investigation, they pointed out that:
a) the Attorney General’s Office contacted the sisters of Mr. Bámaca-Velásquez
directly to attend a potential exhumation even though it had been “established
on several occasions that contact with the relatives had to be done through
Jennifer Harbury o through the CEJIL.” They stated that such contact caused “a
great deal of anxiety” and concern among the victim’s next of kin. In addition,
they pointed out that the Prosecutor wanted to open the grave in Retalhuleu,
which had already been opened in 1993, with no positive results;
b) in a conversation held with the Retalhuleu Prosecutor, the officer who contacted
Mr. Bámaca’s sisters, she said, verbatim, “that the case file was lost,” which
they consider “extremely disquieting.” In this connection, the representatives
pointed out that “the disappearance of this case file, [which contains 16 years
of proceedings] is no accident; but part of an impunity strategy.” They stated
that they did not know the date on which the file went missing; that it was
difficult to understand based on what evidence the Prosecutor could conduct an
exhumation, and that said Prosecutor had not read the judgment rendered by
the Inter-American Court in the instant case. They added that the last steps
had been “taken in an isolated manner, in disregard not only of the
circumstances surrounding the incidents but also of the evidence presented
before this Court and the evidence gathered by the authorities during the early
stages of the investigation;”
c) there were facts “that could be lost if [the] file is not recovered; there are
people that died; other people [were] forced to remove themselves from the
case; some prosecutors were indirectly threatened” and, in addition,
“eyewitnesses [...] fear greatly for their safety [...] and now they may again