20
to the Court: (a) the Fifth Report on the Situation of Human Rights in Guatemala” of 2001,49
and (b) “Justice and Social Inclusion: the Challenges of Democracy in Guatemala” of 2003.50
Nevertheless, since these documents have been published, the Court has verified the
complete texts on the Commission’s official website.
D.
Admission of the statement of the presumed victims, and testimonial and
expert evidence presented by affidavit
54.
In its brief with final arguments, the State maintained that the statements ordered
“should be subject, from the start, to the Order of the Court of April 18, 2013,” and that “it
was not optional to answer the questions posed by the State.” It indicated that, since the
representative had forwarded the affidavits within the stipulated time frame, the deponents
had failed to answer more than half the questions sent by the State, “hence, the Court
should expand the statements, so that the answers could be provided belatedly in a
separate document.” It added that it was not the first time that the victims’ representatives
“commit errors that appear to be of a material nature in the delivery of document to the
Court. However, this specific situation prejudiced the State’s right of defense and procedural
equality at the time of the public hearing […], because it did not have the allotted time to
analyze and compare the said documents, while the representative has had all the
documents and information requested of the State within the stipulated time frames.”
Consequently, it asked the Court to take its arguments into account, because the situation
described placed the State at a disadvantage and was even more prejudicial owing to the
inconsistencies and contradictions in the documents in question.
55.
The representative presented the affidavits on April 29, 2013, as required in the
Order of the President of April 10, 2013. However, as the deponents failed to answer certain
questions posed by the State, extra time was granted for the presentation of expansions to
the affidavits, and these were presented within the said period.51 As indicated in the Order
of April 10, 2013, the State was given the procedural opportunity to present its
observations on the affidavits and did so in its final written arguments. Consequently, the
Court finds that the presentation of the said statements was not time-barred and neither
was the State’s right to defense violated, as alleged by Guatemala.
56.
Regarding the State’s allegation that the deponents failed to refer to the questions
posed by the State,52 the Court reiterates that the fact that the Rules of Procedure establish
the possibility of the parties posing written questions to the deponents offered by the other
party and, when appropriate, the Commission, imposes the corresponding obligation on the
party that offered the statement to take the necessary steps to ensure that the questions
are forwarded to the deponents and that the respective answers are included. Under certain
circumstances, the failure to answer some questions may be incompatible with the
obligation of procedural cooperation and with the principle of good faith that regulates the
49
Inter-American Commission on Human Rights “Fifth Report on the Situation of Human Rights in
Guatemala”, OEA/Ser.L/V/II. 111, Doc. Rev., April 6, 2001 (file of attachments to the Merits Report, annex 32, fs.
266 to 310). Complete document available at: http://www.cidh.org/countryrep/Guate01eng/TOC.htm.
50
Inter-American Commission on Human Rights, “Justice and Social Inclusion: the Challenges of Democracy
in Guatemala.” OEA/Ser.L/V/II.118, 29 December 2003 (file of attachments to the Merits Report annex 32, fs. 266
to 310). Complete document available at: http://www.cidh.org/countryrep/Guatemala2003eng/TOC.htm.
51
In this regard, according to the Secretariat’s communication of May 2, 2013, acknowledging receipt of the
affidavits corresponding to the following deponents: Leonel Enrique Veliz Franco, José Roberto Franco, Luisa María
de León Santizo, Ana Carcedo Cabañas, Rodolfo Kepfer Rodríguez and José Mario Nájera Ochoa, they only
answered the questions regarding which clarifications had been made about the way in which they should be
answered, and did not respond to all the State’s questions that should have been answered. Consequently, on the
instructions of the President, each affidavit was expanded to include the answers to the previously unanswered
questions. On April 9, 2013, the representative presented the expanded statements of the said persons.
52
Namely: Leonel Enrique Veliz Franco, José Roberto Franco, Luisa María de León Santizo, Ana Carcedo
Cabañas, Rodolfo Kepfer Rodríguez and José Mario Nájera Ochoa.