56.
Supervening evidence. On January 17, 2019, the representatives provided supervening
evidence in relation to investigations related to extrajudicial executions in the framework of
“Operation Gavilán.” On March 5, 2019, the representatives provided evidence as an extension
of the aforementioned supervening evidence. 24 Regarding the supervening evidence presented
by the representatives on January 17, 2019 allegedly related to new facts,25 as well as the
evidential material presented on March 5, 2019, 26 the State submitted its observations in
which it considered that the supervening evidence is not related to the case being discussed,
and that, furthermore, it should have been offered to the Commission in a timely manner so
that the adversarial process for its assessment could occur, for which reason it must be
rejected in accordance with the provisions of Articles 40(2)(b) and 57(2) of the Rules of
Procedure of the Court. The Commission stated that it is relevant for the Court to have access
to recent information when it comes to establishing the international responsibility of the State
in a possible judgment.
57.
Regarding the documents presented by the representatives as evidence of supervening
facts, the Court admits only documentation that is directly and exclusively linked to the
investigation of the Valenzuela Ávila case and does not admit the supervening evidence
presented on March 17, 2019, related to different links available on the internet, nor annexes
6 to 14, since they refer to issues that are not directly related to this case.
58.
Regarding the annexes presented together with the final arguments of the
representatives,27 the State in its observations indicated that with respect to annex 1, referring
to the files identified as MP – Trial Opening – Suhairam Stu 1, 2, and 3, it considers that they
are also not related to the facts of the case, since although it is an accusation of extrajudicial
executions and torture against several people within the framework of "Operation Gavilán",
none of the facts reported by the Public Prosecutor are related with Mr. Valenzuela. Regarding
the file identified as annex 2, it is a joint report presented by the Myrna Mack Foundation, the
International Commission against Impunity in Guatemala and Nómada media journalism
entitled “Illegal networks and political crisis: reality of the Guatemalan Congress”, the State
considers it is not related to the facts presented by the Commission and that the
representatives are attempting to introduce new facts and requested that it be discarded.
Lastly, it indicated that the representatives did not attach documents that accredited the
On March 6, 2019, the representatives were informed that the admissibility of this evidence would be
determined by the Court at the appropriate procedural moment, and following instructions from the President of the
Court, the State and the Commission were granted until March 18, 2019, so that they may present the observations
they deem pertinent regarding the evidentiary material presented on January 17, 2019, and March 5, 2019. On March
18, 2019, the Commission and the State, respectively, forwarded their observations on the supervening evidence
presented by the representatives.
25
They sent various links available on the internet, related to “Vielmann Case News” (nine electronic links);
“Videos of the Vielmann case” (ten electronic links); “Expulsion of the CICIG News” (five electronic links), and “Videos
related to the Expulsion of the CICIG” (seven electronic links).
26
They provided the following annexes: annex 1, Power Point presented by the CICIG on October 29, 2018;
Appendix 2, Volume I of File M3542-4338; Appendix 3, Volume II of File M3542-4338; annex 4, Audio 01-010762010-00004 OFC 6TH 1ST Statement 11-13-2018.mp3; appendix 5, Audio 01-01076-2010-00004 OFC 6TH 1ST
Statement 11-15-2018.mp3; annex 6, Audio 01-01076-2010-00004 OFC 6TH 1ST Statement 11-16-2018.mp3;
annex 7, Audio 01076-2010-0004 OFC 6TH Resolution 1st Statement 11-26-2018; annex 8, appeal filed by FECI.
Case 01076-2010-00004; annex 9, Government Press Release 040918; annex 10, Jimmy Morales UN AG Speech;
annex 11, Communication from the Government of Guatemala of September 25, 2018; annex 12, Government
Agreement 2-2019; annex 13, Official statement from the Vielmann family, November 9, 2018, and annex 14, Copy
with receipt signature of the Request to the MP of file M3542-4338-2005.
27
The documents presented are: annex 1, indictment of February 26, 2019 presented by the prosecutor CVN,
of the Special Prosecutor against impunity of the Public Prosecutor before the Judge of the First Court of First Instance
for Criminal, Drug Trafficking and Environmental Crime with competence to hear higher risk processes, Group “A”,
agency 4, file MP: M3542-2005-4338, Cause 01076-2010-00004; annex 2, Waxennecker, H Illicit networks and
political crisis: THE REALITY OF THE GUATEMALAN CONGRESS, CICIG. Guatemala, 2019. P. 34. Annex 3: folder with
supporting documents for supervening expenses was not presented.
24
16