12.
In its answer brief, the State objected to the inclusion of those expert opinions,
pointing out that the Rules of the Court allow the Commission the possibility of
appointing expert witnesses, and that in this specific instance the request to transfer
the expert opinions to this case should be interpreted as new documentary evidence.
Furthermore, the transfer of “expert opinions used in other cases nullifies the
exceptional nature of presenting expert witnesses and its compliance with the rules,
given that such a legal action [by the Commission] cannot be considered as an expert
opinion but rather as documentary evidence, something that is not permitted.”
13.
In this regard, the Commission, in its written observations to the preliminary
objections filed by the State, argued that “the request to transfer the expert opinions
constitutes evidence of an expert and not a documentary nature, as the State has
erroneously sought to characterize it.” Furthermore, it noted that the formulation of
the expert opinions whose transfer was requested, is consistent with Rules and
practice in effect at the time when they were rendered, and considered that both the
expert opinion of Ernesto Albán Gómez, which concerns aspects of Ecuadorian
legislation regarding the scope of criminal laws on matters of medical malpractice and
the duties of judges, and the expert opinion of Raúl Moscoso Álvarez, concerning
procedural aspects of trials for medical malpractice and compliance with guarantees of
due process in Ecuadorian legislation and in forensic practice, are directly connected
with the matters addressed in the case and the issues of public order mentioned
previously, and will provide the Court with important elements for analysis of this
case.
14.
As to the reception and assessment of the evidence, the Court has previously
stated that the proceedings followed before it are not subject to the same formalities
as domestic judicial actions, and that the inclusion of certain elements in the body of
evidence means that special attention must be paid to the circumstances of the
specific case, taking into account the limits imposed by respect for legal certainty and
procedural balance between the parties.3 Regarding the request of the Commission,
the President notes that the expert opinion provided by Mr. Raúl Moscoso Álvarez in
the case Albán Cornejo et al. v. Ecuador was rendered by affidavit, while the expert
opinion of Mr. Ernesto Albán Gómez was rendered orally at the public hearing in that
case. Therefore, having regard to the principle of procedural economy and celerity, the
President deems it appropriate to include, where applicable, the written expert opinion
rendered by Mr. Raúl Moscoso Álvarez in the body of evidence in this case, as well as
the recording of the expert opinion rendered by Mr. Ernesto Albán Gómez at the public
hearing, since these could be useful in resolving the instant case4. Therefore, for the
purposes of this case, these expert opinions constitute documentary evidence and not
expert evidence, as the Inter-American Commission has argued, and the parties may
refer to them in their final arguments.
B. Statements of witnesses and
representative and the State
expert
witnesses
offered
by
the
3
Cf. Case of Carpio Nicolle et al. v. Guatemala. Merits, Reparations and Costs. Judgment of November 22,
2004. Series C. 117, para. 55; Case Tiu Tojin v. Guatemala. Order of the President of the Inter-American
Court of Human Rights of March 14, 2008, Considering paragraph 9, and Case of Pacheco Teruel et al. v.
Honduras. Order of the President of the Inter-American Court of Human Rights of January 27, 2012,
Considering paragraph 26.
4
Cf. Case of García Asto and Ramírez Rojas v. Peru. Order of the President of the Inter-American Court of
March 18, 2005, Considering paragraphs 7 to 10, and Case of Pacheco Teruel et al. v. Honduras, supra,
Considering paragraph 26.
5