18
notwithstanding, it is through such events that the witness can discuss, in his testimony,
the activities of Mr. Chitay Nech, and which is adjusted to the objective defined by the
Presidency, in relation to the violence carried out against political leaders and the nexus
between Florencio Chitay and the DC party (supra para. 48(c)). Therefore, the Court
admits the testimony and evaluates it with the body of evidence and in accordance to the
rules of competent analysis.
60.
Regarding the testimony of Claudia Elisa Sesam, the State expressed that “a
witness is ‘the person that presents or acquires direct and true knowledge of something’[
and that] the witness manifest[ed] in her testimony that she did not had the opportunity to
personally know Mr. Florencio Chitay Nech[,] for which […] said testimony lacks evidentiary
value.” The Court observes that the State’s observations refer to the evidentiary value of
said testimony, that which will be taken into consideration at the corresponding procedural
opportunity, in light of the body of evidence and the rules of competent analysis.
61.
In regards to the expert witness of Cesar Augusto Davila Gomez offered by the
State, the representatives in their final written arguments requested that this testimony be
considered as ordinary testimony evidence and not as that rendered by an expert witness,
because “the conditions for it to be considered an expert opinion, for its academic and
experimental qualification, and for the characteristics of its presentation, were not
fulfilled.” In this regard, the Tribunal dismisses the observations of the representatives
and admits said declaration as expert testimony, in accordance with the Order of the
Presidency (supra para. 7), which assesses it in accordance with the body of evidence in
the present case and the rules of competent analysis.
62. Having carried out an examination of the evidentiary elements that make up the case
file, the Court goes on to analyze the alleged violations.
VIII
FORCED DISAPPEARANCE OF FLORENCIO CHITAY NECH (ARTICLES 7, 5, 4, 3, AND
23 OF THE AMERICAN CONVENTION, IN ACCORDANCE WITH ARTICLE 1(1) OF THE
CONVENTION, AND ARTICLES I, II, AND III OF THE INTER-AMERICAN CONVENTION ON
THE FORCED DISAPPEARANCE OF PERSONS)
63.
In the present chapter, the Court will analyze in the light of the partial recognition of
international liability, the facts and violations of human rights enshrined in the American
Convention, as well as the lack of fulfillment of the ICFDP, argued in the present case.
1.
Context of the case and facts regarding the forced disappearance of
Florencio Chitay Nech.
A)
Context of the case
64.
In Guatemala, between the years of 1962 and 1996, an internal armed conflict took
place that brought great human, material, institutional, and moral costs.40 During such
conflict, the State applied the denominated “National Security Doctrine”.41 It has been
40
Cf. CEH, Guatemala: Memory of Silence, supra note 35, Tome V, Chapter IV, page 21, para. 2; Case Tiu
Tojín V. Guatemala. Merits, Reparations and Costs. Judgment of 26 of November of 2008. Series C No. 190, para.
48, and Case of the Dos Erres Massacre v. Guatemala, supra note 12, para. 70.
41
Cf. CEH, Guatemala: Memory of Silence, supra note 35, Tome I, Chapter II, page 83, para. 23.