have an interest in this case, their testimony will not be assessed alone, but together
with all the evidence in the proceedings.12
20.
Regarding the expert testimony offered by the State to carry out an
anthropological study of the traditional lands of the Xákmok Kásek Community, in a
brief submitted on April 6, 2010, the State informed the Court that it had designated
Sergio Iván Braticevic. Finally, on May 17, 2010, the State forwarded the said expert
report.
21.
In briefs of April 19 and June 1, 2010, the Commission presented its
observations on the designation of Sergio Iván Braticevic and on the expert report
submitted. It stated, inter alia, that: “the report [was] not signed by Mr. Braticevic,
and it is clear from the notarized document forwarded by the State, in which the said
brief is supposedly transcribed, that it was a third party, Jose E. Garcia Avalos,
apparently a State official, who requested the transcript of the document before a
notary”; the expert witness was not a specialist in anthropology, but a geographer; he
had only published work on the Argentine Chaco; he was not a specialist in indigenous
peoples; his publications focused on development projects and the expansion of
production; to prepare his report, he only met with agents of the State and he does
not have the necessary experience to provide this kind of opinion. Based on the
foregoing, the Commission argued that his expert opinion did not comply with the
purpose for which it was proposed and that it was not relevant to receive his expert
opinion, since it did not help elucidate the facts.
22.
In a brief received on June 1, 2010, the representatives presented their
observations on the expert opinion of Sergio Iván Braticevic. They considered it
misguided that the study had been based on the documentation of this case and on
interviews with officials, without taking the Community into account, and suspected
that the intention of the study was to “give a technical appearance or veneer to the
State’s hope to [be relieved] of its responsibility in the restitution of the 10,700
hectares of land claimed.”
23.
In this regard, the Court observes that, although the expert opinion forwarded
is not signed by Mr. Braticevic, it has been notarized, and that the observations of the
Commission and the representatives refer to its probative value and not to its
admissibility. Consequently, the Court considers that the expert opinion of Mr.
Braticevic is useful for the case, and will assess together with the body of evidence, in
keeping with the rules of sound judicial discretion, and any pertinent observations will
be assessed, when examining the merits of the dispute.
24.
On April 16, 2010, after the public hearing, the State submitted documentary
evidence referring, among other matters, to the delivery of provisions and
humanitarian assistance. On May 24, 2010, the representatives indicated that this
evidence “is not related [to] the matters that are in dispute, so that it is irrelevant,”
and also it had occurred in recent months. In this regard, the Court admits the
documentary evidence forwarded by the State and incorporates it into the body of
evidence because it is useful for deciding the case. When examining it, the Court will
12
Cf. Case of Loayza Tamayo v. Peru. Merits. Judgment of September 17, 1997. Series C No. 33,
para. 43; Case of Radilla Pacheco v. Mexico. Preliminary objections, merits, reparations and costs. Judgment
of November 23, 2009. Series C No. 209, para. 93, and Case of the “Dos Erres” Massacre v.
Guatemala. Preliminary objection, merits, reparations and costs. Judgment of November 24, 2009. Series C
No. 211, para. 63.
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