HAVING SEEN:
1. The brief of October 6, 1997, from the State of Guatemala (hereinafter "the State"), in which it requested the Inter-American Court of Human Rights (hereinafter "the Court"), pursuant to the provisions of Article 43 of its Rules of Procedure (hereinafter "the Rules of Procedure"), to summon Julio Aníbal Trejo-Duque as a witness in the instant Case and to convene a public hearing during its next session for the purpose of taking his evidence, and stated that
[f]or reasons of FORCE MAJEURE and GRAVE IMPEDIMENT, when former Judge JULIO ANIBAL TREJO-DUQUE's participation in the instant case was sought at the behest of the Honorable Inter-American Commission on Human Rights, he responded that, owing to his extreme ill-health, it was physically impossible for him to attend the hearings; however, inasmuch as his health has improved, and in his eagerness to establish the truth in this case: former Judge TREJO-DUQUE, requested the undersigned, as the Principal Agent of the State and the Government, to propose to the Honorable Court that he participate as a Witness.
2. The brief of February 26, 1997, received at the Secretariat of the Court (hereinafter "the Secretariat") on March 3 of that year, in which it presented to the Court a notarized declaration submitted by Mr. Julio Anibal Trejo-Duque. On that occasion the State claimed that, insofar as the Paniagua Morales et al. Case was concerned, Mr. Trejo-Duque
had never been interested, [was] not interested, nor [did he have] any intention of bringing legal action for the continuation of the trial; he [was] withdrawing from it entirely, so that he [could] not be called upon in any proceedings, since for health reasons he [was unable] to attend the courts and institute such action; above all, as stipulated above, he [had] absolutely no interest in the conduct of the trial[.]
3. The brief of October 13, 1997, from the Inter-American Commission on Human Rights (hereinafter "the Commission"), in which it stated that the proposal of Mr. Trejo-Duque's testimony was untimely and that its acceptance would jeopardize the integrity of the trial, and requested that the Court reject it.
CONSIDERING:
1. That Article 43 of the Rules of Procedure provides that
[i]tems of evidences tendered by the parties shall be admissible only if previous notification thereof is contained in the application and in the reply thereto and, where appropriate in the communication setting out the preliminary objections and in the answer thereto. Should any of the parties allege force majeure, serious impediment or the emergence of supervening events as grounds for producing an item of evidence, the Court may, in that particular instance, admit such evidence at a time other than those indicated above, provided that the opposing party is guaranteed the right of defense.
This provision empowers the Court to accept untimely evidence in exceptional circumstances. The State claims that the statements of the witnesses and the expert opinions received by the Court at the public hearings conducted at its seat from September 22 to 24 of the current year, in which Mr. Trejo-Duque was "profusely" quoted, constitute supervening events which require that his testimony be heard. It further stated that his ill-health was an instance of force majeure that had made it impossible for him to appear sooner before the Court.
2. That the State proposed Judge Trejo-Duque's testimony as late as October 6, 1997. Accordingly, the Commission is right in affirming that the State "has provided no justification of its failure to explain why [.] it did not name Judge Trejo-Duque as a witness at the appropriate time," regardless of whether that testimony would have been admissible or not. For that reason, the provision contained in Article 43 of the Rules of Procedure of the Court does not apply.
3. That, however, the Court enjoys broad evidentiary powers, in particular those conferred on it in Article 44(2) of its Rules of Procedure, which provides that
[t]he Court may, at any stage of the proceedings:
[...]
[i]nvite the parties to provide any evidence at their disposal or any explanation or statement that, in its opinion, may be useful.
That power derives from the duty of the Court to make good any procedural deficiency with a view to ascertaining the truth of the facts under investigation; its exercise does not imply any derogation of its discretionary powers to consider the conduct of the parties nor, as it has previously stated, of "its duty to evaluate the evidence as a whole" (Velásquez Rodríguez Case, Judgment of July 29, 1988. Series C No. 4, para. 138).
4. That in the instant Case, from the proceedings, which have taken place and the evidence presented by the parties, the testimony of Mr. Julio Anibal Trejo-Duque is deemed to be potentially useful in clarifying the facts that gave rise to the controversy between the parties. In reaching this conclusion, the Presidency has taken into account, in addition to Mr. Trejo-Duque's particular circumstances, his direct involvement in, and immediate knowledge of some of the facts in the Case which are currently at issue.
5. That the very nature of the evidence contemplated in Article 44 of the Rules of Procedure allows the Court to call for additional evidence at any time before the delivery of the judgment, and that it is precisely in the final stages of the proceedings on the merit, that is, once the evidence submitted by the parties has been received by the Court, that the latter may find it necessary to order additional evidence so as to fulfill the duties assigned to it by the American Convention.
6. That the State's observations concerning Mr. Trejo-Duque's state of health imply that his testimony constitutes, at the present moment, "testimony [which may be useful and] is at its disposal," for which reason it is appropriate to exercise the powers conferred on the Court pursuant to Article 44 of the Rules of Procedure.
7. That, in accordance with the principles of procedural economy and celerity, it is advisable for the Court to hear Mr. Julio Aníbal Trejo-Duque's testimony at the earliest opportunity.
8. That in the instant case both parties have been given a term for the presentation of their closing arguments and it is appropriate that it should be maintained. However, by virtue of the principle of procedural balance and the fact that the specific content of Mr. Trejo-Duque's statement is still unknown, it is advisable to afford the parties the opportunity to express their conclusions concerning those statements and to grant them an additional term for presenting in writing in their closing arguments any changes to which those statements in question might give rise. These conclusions conform to the interests of justice and to international jurisprudence on the subject (I.C.J., Essais Nucléaires (Australe c. France), arrêt du 20 décembre 1974, C.I.J. Recueil 1974, 253, p. 264).
NOW, THEREFORE:
THE PRESIDENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS,
in accordance with Article 25(2) of the Statute and Articles 29(2) and 44 of the Rules of Procedure of the Court and in consultation with the other judges of the Court,
DECIDES:
1. To call upon the State of Guatemala to present Mr. Julio Aníbal Trejo-Duque as a witness in the instant Case.
2. To summon the State of Guatemala and the Inter-American Commission on Human Rights to a public hearing to be held at the seat of the Court on November 13, 1997, at 10:00 a.m., for the purpose of hearing the statement of Mr. Julio Anibal Trejo-Duque and to request that, on receipt of that testimony, they present their observations and conclusions thereon.
3. To grant the Inter-American Commission on Human Rights and the State of Guatemala a term of fifteen days from the date on which they receive the tape-recordings of Mr. Julio Aníbal Trejo-Duque's testimony in which to submit to the Court in their written closing arguments any amendments they deem necessary as a result of that testimony.