Constitutional Rapporteur and Technical Jurisdictional Secretary,” respectively. In this
regard, it noted that the three expert witnesses proposed would be “in a subordinate
position to the State of Ecuador, since they are government officials, and furthermore,
some aspects of their expert opinions specifically concern the very institution for which
they work, a circumstance that would compromise their impartiality.”
29.
The State rejected the Commission’s objection to the expert witnesses offered
and requested that the Court consider “the objection as not presented, since there is
no question that the [Commission] is not a party to the proceedings, and therefore
lack[ed]” this power. It expressed “particular amazement” that the Commission
“should have presented an objection to the expert witnesses offered by the State,
since challenging expert witnesses is not within its powers.” The State argued that “it
would appear that [the Commission] has unfortunately become bogged down in old
regulations that have been superseded, and which viewed the inter-American process
in another way.” It indicated that “the new Rules consider the Commission as an organ
of the System, its description as a ‘party to proceedings’ disappeared”, and this has
allowed for “a gradual balance between the parties involved in the proceedings, and
ensured that the alleged victim has a fair participation.” In particular, it argued that “in
the evidentiary sphere, the current Rules of Procedure have allowed [the Commission],
only exceptionally, the possibility of requesting the appearance of expert witnesses,
requiring it to justify their need for purposes of the inter-American public order, a
situation that apparently has not been justified.” The State further argued that “it
[would] appear that [the Commission] has not understood the evolution of the System
through the new Rules of Procedure, which do not grant that power” to the
Commission. “Indeed, to be able to question the expert witnesses presented by the
parties”, the Commission “must seek authorization from the Inter-American Court”
because “the Court, upon issuing its Rules understood that a process can only be
undertaken before an impartial third party” and “between two parties on an equal
footing.” Therefore, “only exceptionally, and based on the need to promote the interAmerican interest, may that equality be broken, a matter that should be reviewed in
due course in other regulations so that the balance is not affected in any case.”
30.
The expert witness Montaña responded to the Commission’s challenge stating
that its “objections regarding his impartiality lack objective grounds since they are
based on an assumption that a legal expert on this matter is unable to provide
technical and objective criteria, merely because he is a public official in a court that did
not participate in any way in the facts that are being judged.” Likewise, he indicated
that he is Executive Director of the “Center for Studies and Dissemination of
Constitutional Law, [which is an] independent academic body, created by the Organic
Law of Constitutional Guarantees and Constitutional Oversight, attached to the
Constitutional Court, and responsible for disseminating the contents of the Constitution
both among public officials of the Ecuadorian State and citizens in general.”
31.
The expert witness Alarcón responded to the Commission’s objection by pointing
out that “the objections regarding impartiality argued by the Commission are
groundless, since they are based on the notion that an expert/academic/jurist, merely
because of his work as a civil servant, is unable to provide technical and objective
criteria within an expert opinion.” He also stated that he is the “Technical Jurisdictional
Secretary of the Constitutional Court of Ecuador” and that “the challenge to his
impartiality related to [his] work as an official - adviser of the Constitutional Courtignores […] Article 430 of the Constitution of Ecuador which recognizes and guarantees
8