In any legal proceeding, evidence plays a central role, as it consists of the material elements that allow the judge to understand and reconstruct the facts set forth in the complaint and to form a conviction regarding the validity of the claim. Within our legal system, five key stages in the evidentiary process can be identified:
- The offer.
- The proposal.
- The admission.
- The examination.
- The evaluation.
Each of these stages takes place at specific procedural moments, and once they are concluded, the opportunity to admit evidence that is decisive for the case’s success or failure may be lost. However, an important question arises: what happens when evidence is obtained during the course of the proceedings, but after the stage at which it should have been admitted? Likewise, how can responses be obtained from one of the parties regarding facts that were not previously contested? And, along those same lines, what tools exist to allow the judge to directly examine evidence that could prove decisive for the resolution of the case?
The Guatemalan legislature, through the Civil and Commercial Procedural Code, provides litigants with a particularly useful tool: privileged evidence. This refers to certain types of evidence that, by law, may be offered and processed at any stage of the proceedings, provided that this occurs before the hearing of the appeal in the court of second instance.
However, this possibility is not unlimited. The law restricts privileged evidence to specific forms of proof, including the party’s statement (Article 130 of the Civil and Commercial Procedural Code), judicial acknowledgment (Article 172 of the same code), and the comparison of documents (Article 179).
However, although this provision expands the opportunity to introduce certain types of evidence, its application also has limits. These have been clarified by the Honorable Constitutional Court in case 1554-2021:
“Such means of proof is characterized as privileged evidence, given that its production may be requested at any stage of the proceedings, with the sole requirement being that it has not been previously requested regarding a fact on which it has already been addressed.” (Underlining and boldface added)
Likewise, another requirement is mentioned that must be considered at all times by the lead attorney:
“It is necessary that it have been offered at the appropriate procedural stage, that is, in the filing of the complaint or, as the case may be, in the answer; and given that, in this specific case, the record shows that the petitioner offered the aforementioned means of proof in its complaint and the opposing party deemed it to have been offered, this requirement was therefore met”
This criterion has been reiterated by the Honorable Constitutional Court in cases 5617-2014, 1543-2021, and 2316-2021.
In other words, this evidence must pertain to facts that were not previously known within the judicial proceedings. Far from constituting a limitation, this rule allows privileged evidence to serve the purpose of introducing into the proceedings new facts or those not previously noted by the court, which may prove decisive for a better resolution of the case. In this regard, this provision offers a means to introduce relevant elements without relying on mechanisms such as the order for further investigation, the use of which is an exclusive power of the judge, in accordance with the law and the doctrine established by the Constitutional Court.
However, special care must be taken to ensure that this evidence has been offered since the initial complaint, so that it may subsequently be considered and processed by the court regarding facts that were previously unknown in the proceedings. Used correctly, this tool allows for the introduction of evidence related to the disputed facts without it being considered untimely.