28
beginning. Moreover, the format and some sections of the statements do not coincide with
the ones that were initially forwarded and later on, authenticated.
97.
In such regard, the State objected to the inclusion of said evidence upon considering
that the representatives "were trying to produce, by means of a written statement, the
testimony of a group of [alleged] victims of this case, all of this in order to avoid complying
with the procedure established for the introduction of witnesses in the proceeding and,
above all, in order to prevent the State from exercising its right to object to and interrogate
a witness”. Therefore, the representatives answered that the State's right to defense would
have not been violated "considering that the written statements do not stop, in any way,
the State from objecting or making observations to the witness or statement itself”.
98.
Based on the foregoing, this Court considers that the right to defense of the State
has not been violated, inasmuch as the State had the opportunity to object to the content of
such statements. Nevertheless, the Court admits into the body of evidence the 22
statements that were forwarded by the representatives in time fashion, that is, together
with their brief of pleadings and motions, as it has held in other cases,42 which shall be
assessed taking into account the observations of the parties thereto. As to the statements
forwarded on November 27, 2007 and February 20, 2008 by the representatives, even
though they alleged that they had a serious impediment pursuant to the terms of Article
44(3) of the Rules of Procedure to tender the evidence in due time, such statements were
transmitted to the State and the State had the opportunity to present the observations
thereto. Therefore, the Tribunal admits them into the body of evidence under the terms of
Article 45(1) of the Rules of Procedure.
99.
The representatives expressed that the public notaries refused to legally authenticate
the statements of the witnesses and expert witnesses required by the Order of the Court’s
President on March 18, 2008. The State denied such allegation. The Court considers it is
improper that those officers in charge of exercising their public duty of authenticating
documents, refused to take the statements of the people convened by an international court
of human rights. According to Article 24(1) of the Rules of Procedure, the States Parties to
a case have the obligation to “facilitate compliance with summonses by persons who either
reside or are present within their territory”. Therefore, the State must guarantee, in view of
the principle of bona fide that must rule compliance with treaty obligations,43 that no act of
hindrance prevents production of evidence. Nevertheless, in the case at hand the Court
does not have any elements to determine the veracity of the hindrance so alleged.
100. Moreover, it spring from the documentation on record, furnished by the State as
exhibits to the response to the petition, that Mrs. Alís Carolina Fariñas Sanguino has
previously participated in the investigations of some facts of this case in her capacity as
Regular Plenipotentiary Prosecutor of the 21° Public Prosecutors’ Office. Based on such
record, the Court considers it is appropriate to assess such statement as testimony and not
as expert opinion, inasmuch as the information she could have provided regarding the
criminal investigations conducted by the Public Prosecutors’ Office in relation to the facts of
this case could be useful for adjudicating the instant case.
42
Cf. among others, Case of the Serrano Cruz Sisters v. El Salvador. Merits, Reparations and Costs.
Judgment of March 1, 2005. Series C Nº. 120, para. 39; Case of the Rochela Massacre v. Colombia. Merits,
Reparations and Costs. Judgment of May 11, 2007. Series C No. 163, para. 62; Case of Miguel Castro-Castro Prison
v. Perú, supra note 36, para. 189.
43
The Permanent Court of Arbitration established that “[ev]ery State has to execute the obligations incurred
by Treaty bonafide, and is urged thereto by the ordinary sanctions of International Law in regard to observance of
Treaty obligations”. Cf. Reports of International Arbitral Awards, The North Atlantic Coast Fisheries (Great Britain,
United States), 7 September 1910, Volume XI, pp. 167-226, p. 186.