27.
In its observations to the definitive lists (supra Having seen 10), the Commission
requested “the opportunity to formulate questions, verbally or in writing, insofar as these
are relevant and reasonable, to two of the expert witnesses offered by t [he]
representatives whose statements are related both to the Inter-American public order and
to the topic of the expert reports offered by the Inter-American Commission.” In this
regard, it pointed out that two of the aspects identified as being related to the InterAmerican public order have to do, on the one hand, with the General Amnesty Law for the
Consolidation of Peace in light of the international standards on the matter, and on the
other, with the conceptual and technical elements to be taken into account in order to
ensure that the practice of exhumation of remains in cases such as this contributes to the
determination of the truth and to justice. Regarding these two topics, the Commission
explained that these were offered as the object of the expert opinions to be presented by
Michael Reed Hurtado and Tal Linda Ileen Simmons. For the Commission, the expert opinion
of Salvador Eduardo Menéndez Leal as well as the joint expert opinion of Luis Fondebrider,
Silvana Turner and Mercedes C. Doretti, offered by the representatives, are related
respectively to these two questions.
28.
The Commission added that “[a]lthough the focus of the two expert opinions
proposed by the representatives is limited to the situation of impunity in El Salvador and the
exhumations conducted in this specific case, the object also includes an analysis of the
measures to be adopted in future to overcome the problems identified in these two spheres
[, that] necessarily involves the applicable international standards which will be discussed
by the expert witnesses offered by the Commission; the decision issued by the Court in this
regard will have an impact on the Inter-American public order, since these matters
continue to pose a challenge for many countries of the region, which continue to search for
ways to address the legal and de facto obstacles to doing justice in the wake of generalized
and systematic situations, and also [face] technical limitations in carrying out forensic tests
in large-scale cases such as this.”
29.
Regarding the Commission’s aforementioned request, the President recalls the
provisions of the Rules regarding the reception of statements proposed by the Commission,
and those concerning its authority to question witnesses offered by the other parties. In
particular, it is pertinent to recall the provisions of Article 50.5 of the Rules, which establish
that “[t]he alleged victims or their representatives, the respondent State, and, if applicable,
the petitioning State may submit questions in writing for the declarants offered by the
opposing party and, if applicable, by the Commission, who have been convened by the
Court to render their statements through affidavits.” This should be taken in conjunction
with Article 52.3 of the Rules, according to which the Commission may question expert
witnesses proposed by the other parties, “if authorized by the Court upon receiving a wellfounded request, when the Inter-American public order of human rights is affected in a
significant manner and the statement in question concerns a topic included in the statement
of an expert witness offered by the Commission.” Thus, it is up to the Commission to
demonstrate, in each case, the connection with the Inter-American public order and with
the topic discussed by an expert witness that it has proposed, so that the Court or its
Presidency may properly assess the request and, if appropriate, authorize the Commission
to proceed with its questioning.8
8
Cf. Case of Contreras et al v. El Salvador. Order of the President of the Inter-American Court of Human
Rights of April 14, 2011, Considering paragraph 25, and Case of Castillo González et al. v. Venezuela. Order of the
President of the Inter-American Court of Human Rights of January 31, 2012, Considering paragraph 21.
9