Libro Primero · Título III · Capítulo V Sección Tercera. Testimonio

Every inhabitant of the country or person who is within it shall have the duty to appear in response to a summons for the purpose of providing a testimonial statement.

Such statement entails:

1)To state the truth of whatever they may know and may be asked regarding the subject matter of the investigation.

2)The duty not to conceal facts, circumstances, or elements concerning the content thereof.

Treaties signed by the State establishing exceptions to this rule shall be observed.

They shall not be required to appear in person, but they must render a report or testimony under oath:

1)The presidents and vice-presidents of the Organs of the State, the Ministers of State and those with equivalent rank, the titular deputies, the magistrates of the Supreme Court of Justice, of the Constitutional Court and of the Supreme Electoral Tribunal, and the judicial public officials of higher rank than that of the respective judge.

2)The diplomatic representatives accredited in the country, unless they wish to do so.

The persons indicated in the preceding article shall testify by written report, under oath to tell the truth. However, when the importance of the testimony so justifies, they may testify in their office or official residence, and the parties do not have the power to question them directly. In addition, they may waive official treatment.

The request shall be communicated to diplomats through the Ministry of Foreign Affairs, via the Presidency of the Judicial Branch. In case of refusal, they may not be required to testify.

Persons who are unable to appear before the tribunal because they are physically impeded shall be examined at their domicile, or at the place where they are located, if circumstances so permit.

The same procedure may be followed in the case of witnesses who fear for their personal safety or for their life, or by reason of threats, intimidation, or coercion to which they are subjected, without prejudice to the provisions of Articles 218 Bis and 218 Ter.

The suitability of the witness shall be investigated by the means available, especially with respect to their identity, relationships with the parties, criminal record, way of life and whatever may provide information in that regard.

The following are not obligated to testify:

1)Relatives when their statements may prejudice their family members, within the degrees established by law; adopters and adoptees, guardians and wards reciprocally, in the same cases. However, they may testify, after prior warning of the exemption, when they so wish.

2)The defense counsel, the lawyer or the representative of the accused with respect to facts they have learned by reason of their capacity and which they must keep in reserve by reason of professional secrecy.

3)Whoever knows the fact through data furnished by private individuals under a legally prescribed guarantee of confidentiality.

4)Public officials, civil or military, as to what they know by reason of office, under secrecy, unless they have been authorized by their superiors.

If it involves minors under fourteen years of age or persons who, due to insufficiency or alteration of their mental faculties or due to immaturity, do not understand the meaning of the faculty to abstain, the decision of the legal representative or, as the case may be, of a tutor appointed for that purpose shall be required.

If the tribunal considers that the witness erroneously invokes the faculty to abstain or the reservation of secrecy, it shall order his or her testimony. The decision shall be reasoned.

During the preparatory procedure, the Public Prosecutor's Office shall decide, except in the case of anticipated evidence.

The summoning of the witnesses shall be effected in accordance with the rules of this Code. In cases of urgency they may be summoned orally or by telephone.

The witness may also appear spontaneously, which shall be placed on record.

If the witness does not reside or is not present in the place where he or she must testify, or in its vicinity, he or she shall be indemnified, upon his or her request, for the per diem expenses due in accordance with the regulation issued by the Supreme Court of Justice.

When, during the procedure prior to the trial, his or her personal appearance is not essential, his or her testimony may be ordered by letters rogatory or commission to the authority of his or her domicile.

If the witness fails to appear, despite having been personally summoned, they shall be brought by compulsion, without prejudice to their prosecution, where applicable. Their compelled appearance shall also be ordered when there are well-founded grounds to believe that they will not attend the debate of the oral trial, securing their presence.

If, after appearing, they refuse to testify, their criminal prosecution shall be initiated.

If the witness states that their refusal is due to fears for their personal safety or that their life is in danger by virtue of threats, coercion or intimidation to which they have been or may be subjected, this shall be placed on record. In such cases, recourse may be had to the procedure provided for in articles 210 and 317, or police protection may be provided to the witness in order to ensure receipt of their testimony. The judge or the prosecutor hearing the case may, in their discretion, keep with reserved or confidential character the witness's personal data as well as what was stated by the witness regarding fears for their safety and everything relating to the threats and intimidation, so that they may be assessed at the appropriate time or, failing that, order that the corresponding criminal prosecution be initiated.

If the witness is located abroad, proceedings shall be conducted in accordance with the international or national rules for judicial assistance.

If, due to duly justified circumstances, the witness, expert or effective collaborator cannot appear to give a statement in person, the tribunal, at the request of a party or on its own initiative, may order that the testimonial statement be taken by videoconference or any other similar technological audiovisual means of communication, of the same or better characteristics, that safeguard the fidelity and integrity of the statement and guarantee to the parties the proper exercise of their procedural rights. This mechanism may be used when any of the following circumstances exist:

a)When the witness, expert or other person is receiving the benefit of any of the protection mechanisms regulated in the Law for the Protection of Procedural Subjects and Persons Linked to the Administration of Criminal Justice;

b)When the person has been or is an effective collaborator as provided in the Law Against Organized Crime;

c)When, due to other circumstances, the statement of the witness, expert or other person relevant in the proceedings constitutes a risk, threat or may be subject to intimidation against his or her life, integrity or that of his or her family.

The statement through videoconference or other audiovisual means of communication may be made during the oral and public debate or as an advance of evidence. The diligence shall be carried out on the basis of the following:

a)If the diligence is carried out as an advance of evidence, the jurisdictional body shall inform the parties, with no less than ten days in advance, of the holding of the diligence, without prejudice to the provisions of this Code on such matter in relation to the danger of loss of elements of evidence and acts of extreme urgency. During the oral debate the diligence must be scheduled at the beginning thereof. In the advance of evidence Articles 317, 318 and 348 of this Code shall be observed, receiving the testimonial statement by videoconference or other electronic means where applicable;

b)The competent jurisdictional body shall carry out the respective formalities before the authorities of the country or place where the person resides; if it concerns a protected witness or effective collaborator, it must maintain the formalities and the place where the latter is located under confidential reserve;

c)In the place where the witness, expert or other person whose statement is relevant in the proceedings is located, an authority designated by the competent jurisdictional body must be present, which has the obligation to verify the presence of the witness, expert or other person; take his/her personal identification data, verify that the person is not being coerced at the time of giving the statement, verify that the facilities meet the adequate conditions and that suitable audiovisual apparatus is available and connected with a direct link to the tribunal. The competent jurisdictional body in charge of the diligence shall place on record that the preceding obligation has been complied with;

d)The competent jurisdictional body must verify that the facilities and audiovisual means allow the different procedural parties to hear and observe faithfully the statement given by a witness, as well as to exercise their rights with respect to interrogation;

e)If the witness enjoys the benefit of change of identity or it is determined that for security reasons his/her face must be concealed, all necessary precautions shall be taken to prevent him/her from being observed through the audiovisual means used.

The entire diligence must be recorded and duly registered. Once the diligence is concluded, the personnel authorized by the competent jurisdictional body who is in the place where the person who had to give the statement was located shall draw up a record of the diligence, which must be signed by all those present and forwarded to the jurisdictional body that issued the respective order. The parties shall have access to the documents, recordings and records resulting from such diligence.

In these diligences the defense counsel designated by the accused person must always appear, failing that the public defense counsel designated by the judge, and the case prosecutor, ensuring that the constitutional guarantees of the right of defense and due process are duly observed. If there is no accused person, an ex officio public defender shall likewise be made to appear, to guarantee the legality of the testimonial statement in this form; likewise, the case prosecutor and the adhesive complainant if there is one shall appear in such anticipated evidentiary act, and such act shall be presided over personally by the judge of the proceedings.

Before beginning the testimony, the witness shall be instructed regarding the penalties for false testimony. The following solemn affirmation shall then be administered to the witness:

"Do you promise as a witness to tell the truth, before your conscience and before the people of the Republic of Guatemala?" For the testimony to be taken, the witness shall answer:

"Yes, I promise to tell the truth." The witness may reinforce his assertion by appealing to God or to his religious beliefs.

The witness shall present the document that legally identifies him, or any other identity document; in any case, his statement shall be received, without prejudice to subsequently establishing his identity if necessary.

Next, he shall be questioned about his personal data, requiring his name, age, civil status, profession or occupation, place of origin, domicile, residence, whether he knows the accused or the aggrieved persons and whether he has kinship, friendship or enmity with them and any other information that contributes to identifying him and that serves to assess his veracity. He shall immediately be questioned about the fact.

If the witness refuses to take the oath, they shall be asked about the reasons they have for doing so, they shall be warned about the consequences of their attitude and, where applicable, the corresponding criminal prosecution shall be initiated.

Minors and those who from the first moment of the investigation appear as suspects or participants in the crime under investigation or in another related crime shall not be placed under oath; they shall simply be admonished.

The witness who enjoys the right to abstain shall be advised of that circumstance and, if they avail themselves of it, the testimony shall be suspended.

During the preparatory procedure no solemn oath shall be required, but the Public Prosecutor's Office may require the judge who controls the investigation to proceed with the oath in cases of anticipated evidence.