is able to evaluate the evidence freely, 177 abiding by the principle of sound judicial
discretion.
194. In view of its particularities of this case, especially the situation of poverty and
insecurity of the presumed victims, it is pertinent to apply special standards in the
assessment of the evidence, because it has been argued that the characteristics of the
factual circumstances have resulted in the absence of documentation or registration. Thus,
for example, it has been argued that some presumed victims were born in Dominican
territory and that they do not have personal identification documentation, and that others
were expelled from the country without the legal procedure being followed. Thus, although
the lack of personal documentation or records of administrative or judicial proceedings
would normally indicate that the alleged facts did not occur, this cannot be considered to
be so in this case, because this absence of documentation or records is part of the factual
framework submitted to the Court’s consideration and is consistent with the proven
context, which also included a systematic pattern of expulsions, even by means of
collective deportations or proceedings that did not entail an individualized analysis (supra
paras. 171).
195. Inasmuch as the facts related by the presumed victims are inserted in that context,
the said expulsions were not documented and this omission can be attributed to the State
authorities. Similarly, the difficulties encountered to register births in the Dominican
Republic are a factor that can be attributed to the State, because it is the State that has
the means and the authority to adopt the respective measures. The lack of evidence
cannot be assessed as proof that the facts alleged by the presumed victims did not occur,
because they originated precisely from deficiencies in the actions or policies of the State.
Consequently, an assessment of the evidence in that sense would be contrary to the
principle that courts must reject any argument based on the negligence of the party
presenting it (Nemo auditur propiam turpitudinem alegans).
196. Based on the above, the Court finds that, in this case, it would be disproportionate to
place on the victims the burden of proving positively, with documentary or other types of
proof, the occurrence of events relating to omissive acts of the State. The Court notes
that, owing to the nature of the alleged facts, the State was able to obtain proof of them.
In this regard, it is interesting to noted that, during the public hearing in the case, the
State was asked whether it had conducted “any investigation […] at least of an
administrative type, […] to determine […] whether the presumed [irregular] expulsions
had occurred,” and Dominican Republic failed to present any information in this regard,
either on that occasion or subsequently. 178
197. In addition, the Court notes that the State, when referring to the statements made
by the presumed victims during the procedure before the Commission, had indicated that
it “observe[d] with great concern that all the supposed facts and acts presented by the
Commission […] and the representatives were established, and it is sought to prove them,
177
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, paras. 127 and 128, and Case of Veliz Franco et al.
v. Guatemala, para. 179.
178
In its written arguments, the State merely asserted that “the investigations came to a halt owing to the
granting of the provisional measures,” but did not indicate the investigations to which it referred, or how the
orders given by this Court in relation to provisional measures prevented the continuation of the investigations.
Furthermore, when answering the question, it merely referred to “annex 6 of the Merits report” which contains
several documents. Among these documents, one dated July 19, 2000, issued by the DGM refers to only four of
the presumed victims, in a paragraph concerning each one, indicating that several persons had commented on
the supposed names, nationality and place of residence of the presumed victims and, also, indicates that “there
is no record that Berson Gelim was deported.” The State did not mention that the “inquiries” leading to the said
comments formed part of formal administrative or judicial proceedings, or their eventual result.
64
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