99
That the Centro para la Justicia y el Derecho Internacional (hereinafter
“CEJIL”), representing the victims or their next of kin, incurred certain
expenses in the process of resorting to the inter-American human rights
system.36
VI
BENEFICIARIES
30.
The court will now determine the person or persons who in the instant case
are the “injured party”, pursuant to Article 63(1) of the American Convention. In
view of the fact that the violations of the American Convention determined by the
Court in its November 25, 2000 Judgment were committed against Efraín Bámaca
Velásquez, Jennifer Harbury, José León Bámaca Hernández, Egidia Gebia Bámaca
Velásquez, and Josefina Bámaca Velásquez, all of them –as victims- must be
included in that category and be entitled to the reparations decided by the Court,
both in connection with pecuniary damages, when appropriate, and in connection
with non-pecuniary damages. With respect to the deceased victim, it will also be
necessary to determine which of the reparations that may be decided in his favor can
be transmitted through inheritance to his next of kin, and to which of them.
31.
In the case of Mrs. Jennifer Harbury, the State has objected to her being
entitled to possible reparations, both in her own right and through inheritance, as a
consequence of her own statement that this reparation will be delivered, in full, to
the relatives of Bámaca Velásquez, and it is therefore the opinion of the State that
this is “an explicit waiver of the right declared in her favor by the Court, one that is
full evidence because it was made during the contentious phase of the case before
the Court”. The Court does not share the interpretation of the State regarding that
statement, as it does not issue from the terms of that statement that such was Mrs.
Harbury’s intention, and for these reason the Court believes that a determination of
the compensation due to her is in order, and she can freely dispose of it.
32.
As regards which compensations in favor of the victim can be inherited, the
Court has pointed out that:
[i]t is a common rule in most legislation that a person’s successors are his or her
children. It is also generally accepted that the spouse participates in the assets acquired
during the marriage, and some legislation also grants the spouse a succession right
together with the children. If there are no children nor any spouse, common private law
recognizes the ascendants as heirs. These rules, generally accepted in the community
of nations, must be applied, in the opinion of the Court, in the instant litigation to
determine the successors of the victims as regards compensation.37
36
See Power of Attorney granted by José León Bámaca to CEJIL in San Jose, Costa Rica, on June
19, 1998, Appendix 1 of the brief on Reparations filed by the representatives of the victims (supra para.
5); power of attorney granted by Jennifer Harbury to CEJIL in Texas, United States, on March 27, 2001,
Appendix 2 of the brief on Reparations filed by the representatives of the victims (supra para. 5); power
of attorney granted by Josefina and Egidia Gebia Bámaca Velásquez to José León Bámaca Hernández in
San Marcos, Guatemala, on June 11, 1998, Appendix 3 of the brief on Reparations filed by the
representatives of the victims (supra para. 5); power of attorney granted by José León Bámaca Hernández
and Josefina and Egidia Gebia Bámaca Velásquez to CEJIL in San Marcos, Guatemala, on June 22, 1998,
Appendix 3 of the brief on Reparations filed by the representatives of the victims (supra para. 5).
37
See Villagrán Morales et al. Case, Reparations, supra note 5, para. 67; Paniagua Morales et al.
Case, Reparations, supra note 5, para. 84; and Neira Alegría et al. Case. Reparations (Art. 63(1) American
Convention on Human Rights). September 19, 1996 Judgment. C Series No. 29, para. 60.