abide by the principles of sound judicial discretion, within the corresponding legal
framework.13
25.
Regarding the documentation presented by expert witness Pablo Balmaceda
and witnesses Rodrigo Villagra Carron and Lida Acuña at the end of the public hearing
held in this case, as well as the documentation presented by the representatives with
their final written arguments, the Court admits them in application of Article 47(1) of
its Rules of Procedure, because they are useful in this case and were not contested and
their authenticity or veracity was not questioned.
26.
In relation to the documentation requested by the Court on May 4, 2010, (supra
para. 12), which was submitted by the parties, the Court decides to admit it because it
finds it useful, in keeping with Article 47(1) of the Rules of Procedure.
V
OFFER OF A FRIENDLY SETTLEMENT, ACQUIESCENCE, AND
REQUEST TO SUSPEND THE PROCEEDINGS
1.
Regarding the offer of
acquiescence of the State
a
friendly
settlement
and
the
27.
When answering the application, the State indicated that it “has not violated
the right to communal property of the Xákmok Kásek's established in domestic law,
but recognizes that, due to current circumstances, which cannot be attributed to the
State, it has not been able to satisfy that right to date.” In addition, the State asked
the Court “to reject the claims made” by the Commission and the representatives, and
offered a “friendly settlement,” an offer that it repeated during the public hearing. In
addition, the State indicated that it “acquiesced to the request for reparation.”
28.
The representatives indicated that they confirmed their unwillingness to accept
a friendly settlement, because its purpose, “in the Community’s experience, was to
delay, unnecessarily, the Court’s ruling on the merits of this case.” They indicated that
in previous years the Community had been “open to the possibility of a friendly
settlement of the case on several occasions and, each time, the State had failed to
comply, even minimally, with what had been discussed.”
29.
The Commission observed that on several occasions the State had offered what
is known as a “friendly settlement.” It noted that, although the State had made the
said offers during the proceedings before the Commission, the conciliatory intention
was never transformed into the implementation of concrete measures.
30.
According to Articles 56(2) and 57 of the Rules of Procedure, and in exercise of
its powers concerning the international protection of human rights, the Court can
determine whether the offer of a friendly settlement or an acquiescence made by a
defendant State offers sufficient grounds, in the terms of the Convention, to continue
examining the merits and determining eventual reparations and costs. Since the
proceedings before this Court refer to the protection of human rights, a matter of
international public order that transcends the will of the parties, the Court must ensure
that such acts are acceptable for the objectives that the inter-American system seeks
to accomplish. In this task, the Court does not limit itself merely to verifying the
formal conditions of the said acts; but rather, it must relate them to the nature and
13
Cf. Case of the “White Van” (Paniagua Morales et al.) v. Guatemala. Reparations and Costs, supra
note 9, para. 76; Case of Chitay Nech et al. v. Guatemala, supra note 8, para. 47, and Case of Manuel
Cepeda Vargas v. Colombia, supra note 8, para. 53.
8