REASONED AND PARTIALLY DISSENTING OPINION OF
JUDGE ARTURO MARTÍNEZ GÁLVEZ
In my capacity as ad hoc Judge for the present Myrna Mack Chang case, whose
application was filed by the Inter-American Commission on Human Rights against the
State of Guatemala, I issue the following ruling:
I.
In the present matter, regarding the acquiescence by the State of Guatemala,
the Court, however, assessed the evidence of the facts that due to this procedural act
stopped being controversial, since the acquiescence was absolute and unconditional.
I think knowing and assessing the evidence was unnecessary, since, as indicated;
with said acquiescence controversial facts were no longer present. The State liability
was fully determined by the acceptance of the facts and pretensions of the plaintiff.
The acquiescence as the act of conforming to the application inevitably can be
interpreted as the proceeding connection of the application to the facts and the
plaintiff pretension, is the submission or acceptance by the defendant, complying
with the pretension stated by the plaintiff in his application. Subparagraph 2 of
Article 52 of the Rules of Procedures of the Court, as invoked by the Court, regulates
this procedural body contained in the Chapter titled “Early Termination of the
Proceedings”, with the immediate effect of, precisely, an early termination of the
proceedings.
In Articles 32 and 33 of the Rules of Procedure of the Court, the application factors
are stated, and one of them is the statement of the facts and evidence for each of
them.
Therefore, the acquiescence is unmistakably the acceptance of said facts,
despite the proceeding phase, with the immediate effect of an early termination of
the proceedings or as indicated by Article 52, the dismissal of the case. Technically,
it cannot be said that the proceeding contradiction has been filed, which in the
international context has absolute validity.
Certainly Article 54 contained in this Chapter states that the Court, considering its
responsibilities of protecting human rights, it can make the decision of pursuing the
discussion of the case, even in the light of the suppositions set forth in Articles 52
and 53, but their interpretation, in my opinion, should be done in the sense that the
Court can make the decision of pursuing the discussion of the case if, despite the
acquiescence, it is necessary and convenient for a better understanding of the facts,
to adopt said power, but in the sub judice case, there were not new elements
subject to discussion, since the acquiescence is absolute and unconditional. If there
were new facts, they would be subject to an application revision, which, in the
proceedings, would have been untimely. The facts set forth in the application were
extensive, and the sued State conformed to them.
II.
The Court in the judgment, in the chapter corresponding to the assessment of
the evidence, relies upon the reports of the Commission on Historical Elucidation and
the Interdiocesan Project for the Recovery of Historical Memoirs; however, I think
said documents do not represent by themselves facts stated therein, even though it
is known that the Court in previous rulings has granted them probative value.
Moreover, the State acquiescence proceeding, in itself, cannot be categorized as
probative documents, on which to base an unfavorable ruling for the defendant.
III.
The Court considers that there has been a delay in the administration of
justice, since there is in the proceedings a considerable amount of presentation of