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128. Before weighing the evidence, the Court must address some questions regarding the
burden of proof and the general criteria considered in its evaluation and finding of the facts in the
instant proceeding.
129. Because the Commission is accusing the Government of the disappearance of Saúl
Godínez, it, in principle, should bear the burden of proving the facts underlying its petition.
130. The Commission's argument relies upon the proposition that the policy of disappearances,
supported or tolerated by the Government, is designed to conceal and destroy evidence of
disappearances.
When the existence of such a policy or practice has been shown, the
disappearance of a particular individual may be proved through circumstantial or indirect evidence
or by logical inference. Otherwise, it would be impossible to prove that an individual has been
disappeared.
131. The Government did not object to the Commission's approach. Nevertheless, it argued
that neither the existence of a practice of disappearances in Honduras nor the participation of
Honduran officials in the alleged disappearance of Saúl Godínez had been proven.
132. The Court finds no reason to consider the Commission's argument inadmissible. If it can
be shown that there was an official practice of disappearances in Honduras, carried out by the
Government or at least tolerated by it, and if the disappearance of Saúl Godínez can be linked to
that practice, the Commission's allegations will have been proven to the Court's satisfaction, so
long as the evidence presented on both points meets the standard of proof required in cases such
as this.
133. The Court must determine what the standards of proof should be in the instant case.
Neither the Convention, the Statute of the Court nor its Rules of Procedure speak to this matter.
Nevertheless, international jurisprudence has recognized the power of the courts to weigh the
evidence freely, although it has always avoided a rigid rule regarding the amount of proof
necessary to support the judgment (Cfr. Corfu Channel, Merits, Judgment, I.C.J. Reports 1949;
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, paras. 29-30 and 59-60).
134. The standards of proof are less formal in an international legal proceeding that in a
domestic one. The latter recognize different burdens of proof, depending upon the nature,
character and seriousness of the case.
135. The Court cannot ignore the special seriousness of finding that a State Party to the
Convention has carried out or has tolerated a practice of disappearances in its territory. This
requires the Court to apply a standard of proof which considers the seriousness of the charge and
which, notwithstanding what has already been said, is capable of establishing the truth of the
allegations in a convincing manner.
136. The practice of international and domestic courts shows that direct evidence, whether
testimonial or documentary, is not the only type of evidence that may be legitimately considered
in reaching a decision. Circumstantial evidence, indicia, and presumptions may be considered, so
long as they lead to conclusions consistent whit the facts.
137. Circumstantial or presumptive evidence is especially important in allegations of
disappearances, because this type of repression is characterized by an attempt to suppress all
information about the kidnapping or the whereabouts and fate of the victim.
138
Since the Court is an international tribunal, it has its own specialized procedures. All the
elements of domestic legal procedures are therefore not automatically applicable.