11.
In the first place, Article 35(1) (f) of the Rules provides for the “possible
appointment of expert witnesses” by the Inter-American Commission, with due
justification of the grounds and object of such appointment, “when the Inter-American
public order of human rights is affected in a significant manner.” The implication of this
provision is that the appointment of expert witnesses by the Commission is an
exceptional circumstance, subject to that requirement, which is not satisfied by the
mere fact that the evidence to be produced is related to an alleged human rights
violation. The “inter-American public order of human rights” must be “affected in a
significant manner,” and it is up to the Commission to justify that situation.2
12.
With regard to the manner in which the object of the Mr. Despouy’s expert
opinion is linked to the inter-American public order, the President takes note of the
Commission’s argument that his expert opinion refers to the issue of the independence
of the Judiciary, which transcends the victims in this case. In this sense, this
Presidency notes that the object of this expert opinion would facilitate analysis of
international standards on the due process of law and the principle of freedom from ex
post facto laws in relation to judges. Accordingly, the President considers that the
analysis of the State’s obligations in these matters may indeed have an impact on
situations that arise in other States Parties to the Convention. Thus, the object of this
expert opinion is a matter that affects the inter-American public order in a significant
manner and transcends the specific facts of this case and the specific interest of the
parties in litigation.
13.
Secondly, regarding the objection filed by the State, this Presidency emphasizes
that Article 48(1) of the Court’s Rules of Procedure states that:
1. An expert witness may be disqualified based on the following
grounds:
[…]
c. he or she has, or has had, close ties with the proposing party, or
is, or has been, a subordinate of the proposing party, and the Court
considers that his or her impartiality may be affected;
[…]
f. he or she has previously intervened, in any capacity, and before
any organ, whether national or international, in relation to the same
case.
14.
Article 48(1)(f) of the Court’s current Rules establish that grounds for the
disqualification of persons proposed as expert witnesses are admissible in cases of
having “previously intervened, in any capacity, and before any organ, whether national
or international, in relation to the same case.” Therefore, given the view expressed by
the State, it is pertinent to consider whether the role and functions performed by Mr.
2
Cf. Case of Vera Vera et al. v. Ecuador. Order of the President of the Inter-American Court of
Human Rights of December 23, 2010, Considering para. 9, and Case of the Massacres of El Mozote and
Surrounding Areas, Order of the President of the Inter-American Court of Human Rights , Considering para.
17.
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