submitting it requires the respective justification. Thus, failure to provide evidence can only affect
the party that unjustifiably did not do so.
34.
Regarding the evidence provided at the public hearing, the Court heard testimony from the
following presumed victims all members of the Sarayaku: Sabino Gualinga, spiritual leader (Yachak),
Patricia Gualinga, women and family leader, Marlon Santi, former President of the Confederation of
Indigenous Nationalities of Ecuador (CONAIE), and former President of the Sarayaku, and Ena Santi.
In addition, it heard witnesses Oscar Troya and David Gualinga (offered by the State), and two
expert witnesses (offered by the Commission and the representatives): James Anaya, current United
Nations Special Rapporteur on the rights of indigenous peoples, and the anthropologist and lawyer,
Rodrigo Villagra Carrón.37
B.
Admission of the documentary evidence
35.
In this case, as in others, the Court accepts the probative value of those documents
submitted by the parties at the appropriate procedural stage, as well as those relating to
supervening facts presented by the representatives and the Inter-American Commission that were
not contested or opposed, and the authenticity of which was not questioned, only insofar as they are
pertinent and useful to determine the facts and their eventual legal consequences.38
36.
Regarding the newspaper articles submitted by the parties and the Commission with their
different briefs, this Court has considered that they may be assessed when they refer to well-known
public facts or declarations by State officials, or when they corroborate aspects related to the case.
The Court decides to admit those documents that are complete or that, at least, allow the source
and date of publication to be verified, and will assess them taking into account the entire body of
evidence, the observations of the parties, and the rules of sound judicial discretion.39
37.
With regard to some documents indicated by the parties by electronic links, the Court has
established that if a party provides at least the direct electronic link to the document cited as
evidence, and it is possible to access this document, legal certainty and procedural balance will not
be affected, because it can be located immediately by the Court and the other parties.40 Moreover,
in this case, the other parties did not oppose or object to the content or authenticity of such
documents.
38.
Furthermore, the Court notes that, together with their observations on the preliminary
objection filed by the State, the representatives forwarded several attachments as “supervening
evidence” and presented a document entitled “Estudio de Poblamiento Tradicional, Poblacional y de
Movilidad del Pueblo Originario Kichwa de Sarayaku” [Study on the traditional, population-related
and mobility settlement of the original Kichwa People of Sarayaku].41
39.
With regard to the procedural occasion for the submission of documentary evidence, under
Article 57(2) of the Rules of Procedure, this must generally be presented together with the briefs
submitting the case (application), with pleadings and motions, or answering the application, as
appropriate. Evidence submitted outside the proper procedural moment is inadmissible, except in
the exceptional circumstances established in Article 57(2) of the Court Rules; namely, force
37
2011.
Cf. Case of the Kíchwa Indigenous People of Sarayaku v. Ecuador. Order of the President of the Court of June 17,
38
Cf. Case of Velásquez Rodríguez v. Honduras. Merits. para. 140, and Case of Forneron and daughter v. Argentina,
para. 12.
39
Cf.. Case of Velásquez Rodríguez v. Honduras, Merits para. 146, and Case of Pacheco Teruel et al. v. Honduras,
para. 12.
40
Cf. Case of Escué Zapata v. Colombia. Merits, reparations and costs. Judgment of July 4, 2007. Series C No. 165,
para. 26, and Case of González Medina and family members v. Dominican Republic. Preliminary objections, merits,
reparations and costs. Judgment of February 27, 2012. Series C No. 240, para. 68.
41
Cf. “Estudio de Poblamiento Tradicional, Poblacional y de Movilidad del Pueblo Originario Kichwa de Sarayaku,” 2011
(evidence file, volume 18, folios 9932 to 9988).
13