Libro Segundo · Título I · Capítulo V Sección Tercera. Declaracion de testigos

The parties may prove their respective propositions of fact by means of witnesses, in cases where the law does not specifically require another means of evidence.

Those who have knowledge of the facts that the parties must prove are obligated to testify as witnesses, whenever they are required to do so.

The judge shall impose upon them such legal compulsions as he deems appropriate if they refuse to testify without just cause.

Each of the litigants may present up to five witnesses on each of the facts to be established.

Any person who has reached sixteen years of age may be admitted to testify as a witness.

The blood relatives or relatives by affinity of the parties may not be presented as witnesses, nor the spouse even if legally separated.

However, the testimony of such witnesses may be received if it is proposed by both parties, as well as in proceedings concerning age, parentage, status, kinship or family rights litigated between relatives.

The party proposing testimonial evidence shall present in the request the respective interrogatory, the questions being clear and precise.

The party shall formulate the interrogatory so that each question refers only to a single simple fact to which the witness must confine his answer. It is not permitted to address to them or to record questions of assessment or their opinions.

The judge shall set the day and time for the carrying out of the proceeding, notice to be given to the parties at least three days in advance.

The proceeding shall be held in the presence of the parties and their attorneys, if they attend, but the persons in attendance may not leave nor communicate with the witnesses who have not been examined; and both the parties or their attorneys and the judge may ask the witnesses the additional questions necessary to clarify the fact.

If not all the witnesses appear at the hearing set for the examination, the judge shall conduct the proceeding with those who appear, if the proponent agrees, and, in this case, shall no longer receive the statements of those absent; but if the interested party so requests, the judge shall suspend the proceeding and set a new day and time to receive the statements of all those proposed. The postponement of the day on which the statements are to be received may be granted only once.

Even if the parties do not request it, the witnesses shall always be asked:

1.As to their first name, last names, age, marital status, nationality, profession and domicile.

2.Whether they are relatives of any of the litigants, and in what degree.

3.Whether they have a direct or indirect interest in the proceeding or in another similar one.

4.Whether they are intimate friends or enemies of any of the litigants.

5.Whether they are domestic workers, dependents, creditors or debtors of any of the litigants, or whether they have any other kind of relationship with them.

The witnesses shall testify under oath, administered in the same manner as established in Article 134.

The answers they give shall be recorded in their presence, literally and without abbreviations, with them being able to write them or dictate them themselves. When recording the answers, it shall not be necessary to transcribe the questions in the record, the corresponding reference being sufficient.

The witnesses are obligated to give the reason for their knowledge of the facts and the judge shall require it, even if it is not requested in the questioning.

The witness may personally read the declaration. If the witness cannot or does not wish to do so, the declaration shall be read by the secretary, with that circumstance being recorded.

The witness is obligated to sign the declaration or to leave a fingerprint. If the witness refuses to do so, the judge shall limit action to recording such refusal in the record.

The examination of the witnesses shall be conducted at the hearing designated for that purpose, separately and successively, without some being able to hear the statements of the others; the judge may authorize the witnesses who have testified in accordance with the provisions of this article to withdraw.

The witness shall not be permitted to read any paper or writing to answer, but when the question refers to books, accounts or papers, the witness may be permitted to consult them then and there.

If they are documents drawn up by the witness, the witness may be requested to acknowledge them.

The cross-questions put to the witness shall relate to the facts recounted by the witness and shall be addressed immediately after the witness answers the examination. If submitted before the proceeding, they shall remain with the tribunal under reserve.

The judge shall rule on the admissibility of the cross-questions.

Witnesses whose statements are contradictory may be confronted with each other.

The judge shall determine the manner of conducting this proceeding.

If it should be necessary to take a declaration from a member of the Diplomatic Corps accredited in Guatemala, the judge shall address the Minister of Foreign Affairs through the respective organ, who shall pass a note to the foreign diplomat, so that he may give his declaration by report, if he sees fit, unless the diplomat voluntarily appears before the Tribunal to give his declaration.

These provisions do not extend to the members of the Consular Corps, who must declare in the same manner as any other person, unless otherwise provided in treaties.

The following public officials are exempt from the obligation to appear to give a declaration: President of the State bodies; ministers and vice-ministers of State; secretaries and undersecretaries of Government; magistrates and judges.

However, these public officials, if they deem that their declaration is necessary, may give it under solemn protest (bajo protesta) and by report, or personally in the ordinary manner if they spontaneously wish to do so.

If any of the witnesses is unable to appear before the Trial Court or has any other justifiable reason in the judgment of the judge for not doing so, he shall be examined where he is located, whether or not the parties are present, according to the circumstances.

If the witness does not reside in the place where the proceedings are pending, the witness may be examined by the corresponding judge, in accordance with the interrogatory submitted and cross-questions, if any, a letter rogatory, writ, or supplicatory letter being issued for such purpose.

If the statements show serious indicia of perjury, the judge shall order, forthwith, that the pertinent matter be certified for transmittal to the competent tribunal, for legal purposes.

The expenses incurred by the witnesses and the losses suffered by them in appearing to give a declaration shall be paid by the party calling them to testify, always subject to what is decided regarding condemnation in costs, damage and losses.

If the proceeding cannot be completed at the hearing set to receive the testimony of witnesses, all time as may be necessary shall be deemed enabled.

Declarations in which the provisions of this section have not been observed shall have no value whatsoever.

The judges and tribunals shall assess, in accordance with the rules of sound criticism, the probative force of the declarations of the witnesses.

They shall also assess the declarations that have been received in accordance with the provisions of Article 104. However, if they are objected to by any of the parties who had not been summoned when they were received, a new examination of the witnesses shall be ordered, if this is possible and the tribunal deems it advisable.

The parties may allege and prove regarding the suitability of the witnesses, within the same evidence term. The judge shall assess, in accordance with the rules of sound criticism, the circumstances and grounds tending to corroborate or diminish the force of their statements in the judgment, together with the principal matter.

If the witness does not know the Spanish language, he shall give his declaration through an interpreter, who shall be appointed by the judge, preference being given to a certified interpreter.

If the witness so requests, in addition to his declaration being recorded in Spanish, it may be written in his own language by him or by the interpreter.