55
this alone [is not] sufficient to deny the competence of witnesses to attest before the
Court [because it would be] contradictory, under the American Convention on Human
Rights, to deny a priori a witness the possibility of testifying about material facts of a
case submitted to the Court, because he was being prosecuted or had even been
convicted in a domestic proceeding, even if the said case referred to matters that affect
it61.
118. With regard to the State's objection relating to the marriage of Jennifer
Harbury and Efraín Bámaca Velásquez, this Court considers that the said union was
proved during this proceeding (infra 121 c). In relation to Jennifer Harbury's alleged
financial interest, the Court repeats that this circumstance does not disqualify the
competence of a witness.
119. In accordance with these criteria, the Court attributes probative value to the
declarations of the witnesses Harbury, Cabrera López and de la Roca Mendoza that
were objected by the State. It is important to emphasize that, unlike other cases of
forced disappearance in which the available evidence is limited to hearsay and
circumstantial evidence62, in this case, the Court has the direct testimonies of
Santiago Cabrera López and Otoniel de la Roca Mendoza, to form an opinion.
120. The State had the opportunity to present its own witnesses and to reject the
evidence provided by the Commission in its application, but did not do this.
Moreover, although the State did reject some of the points put forward by the
Commission, it did not provide evidence to support this rejection.
IX
PROVEN FACTS
121. The Court now proceeds to consider the relevant facts that it finds have been
proved, which it will present chronologically. They result from the examination of
the documents provided by the State and the Inter-American Commission, and also
the documentary, testimonial and expert evidence submitted in the instant case.
a)
Efraín Bámaca Velásquez was born on June 18, 1957, on the El
Tablero property, El Tumbador, San Marcos63.
b)
At the time when the facts relating to this case took place, Guatemala
was convulsed by an internal conflict64.
c)
Jennifer Harbury and Efraín Bámaca Velásquez met in 1990 and were
married in the State of Texas, United States, on September 25, 199165.
61
Cf. Godínez Cruz Case, supra note 53, para. 51.
62
Cf. Blake Case, supra note 52, para. 51 and, similarly, Castillo Páez Case, supra note 52, paras.
50-53.
63
Cf. Declaration and registration of marriage in Travis County, Texas, United States of America of
June 22, 1993, Annex 19; official record of interview with Jennifer Harbury of November 3, 1994, in the
Public Ministry, Annex 47; Human Rights Watch/Americas, Disappeared in Guatemala: The Case of Efraín
Bámaca Velásquez, March 1995, Annex 51; and Report of the Commission for Historical Clarification,
Tome VII.
64
Cf. REMHI report, Tome III; Report of the Commission for Historical Clarification, Tome I; and
final arguments of the State during the public hearing held at the seat of the Court on June 16, 17 and 18,
1998.
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