now being discussed took place.” The State also indicated that Mr. Oyarte “was an
employee at the Constitutional Court at the time when the alleged victims were Judges
and was even the direct subordinate of one of them, Enrique Herrería Bonnet, [so that]
it [would] not be possible [for him to] maintain any of the characteristics of objectivity
and impartiality essential to appear before the […] Court as an expert witness.” Thus,
the State concluded that “the existence of close ties has been demonstrated and also
the subordinate nature of his role while he worked at the service of one of the alleged
victims in the former Constitutional Court.”
19.
Mr. Oyarte responded to the State’s challenge by pointing out that “the
information contained in the objection is inaccurate.” He stated that he was an adviser
at the Constitutional Court from the date indicated in the objection, until he submitted
his resignation on April 15, 2005, “as confirmed in the certificate issued by the
Department of Human Resources of the Constitutional Court, which is attached to the
objection.” Finally, the expert witness indicated that he “did not join the Constitutional
Court at the request of Mr. Enrique Herrería Bonnet and after his termination, [he]
returned to offer his services in the same Court until [he] resigned.”
20.
As to Mr. Ponce, the State challenged his expert opinion arguing that there were
“differences between the object proposed” in the brief of pleadings and motions and
the object stated in the brief “transmitting the definitive list of deponents, a point that
may be confirmed by simply reading the documents presented.” The State added that
“his incompatibility with the role of expert, would irreparably infringe Article 8” of the
American Convention, in other words, “it would compromise the judicial guarantees to
which Ecuador is entitled, as a party to the proceedings, given that the aforementioned
professional has currently filed cases before this same international court and the
inter-American System, in the role of sponsor.” The State concluded that “it is not
possible to expect the expert witness proposed to be impartial or objective on a matter
in which his opposing party acts in several cases. His intervention would break the
procedural balance that should exist in any process, this being a method of debate
between parties with equality before a third party that is being judged.”
21.
Mr. Ponce responded to the State’s objection by pointing out that “although it is
true that he represent[s] persons within the Inter-American Human Rights System, it
is no less true that this representation is not among the grounds established in the
Rules of the Court for [the] objection to be admissible.” Thus, he concluded that “the
object of the expert opinion has no connection with the cases in which he [is] acting as
defense counsel.”
22.
Regarding the change in the objects of the expert opinions of Messrs. Oyarte and
Ponce, the President notes that these have indeed changed from those presented in
the brief of pleadings and motions and the definitive list submitted by the
representatives. However, the President recalls that modifying the object of an expert
opinion is not among the grounds for disqualification mentioned in Article 48 of the
Court’s Rules of Procedure, for which reason the objection presented by the State is
not valid. Notwithstanding the foregoing, the President understands that the object
that will be taken into account in determining the scope of the statement will be that
proposed by the representatives in their brief of pleadings and motions.
23.
As regards the objection raised against Rafael Oyarte for having been employed
at the Constitutional Court at the time when the facts of this case took place, the
President notes that in the documents provided by the State, the Constitutional Court
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