this regard, the State “contest[ed] the effects of any acknowledgment of responsibility in
relation to the presumed victims, next of kin, and survivors regarding whom [the Court]
finds there has been an error or a mistake in their identification.”
47.
Furthermore, taking into account the final list of presumed victims of the
representatives and the corrections, the Court observes that the total number of presumed
victims submitted by the Inter-American Commission in the table of family units does not
coincide with the total number of presumed victims identified and individualized by the
representatives. Nevertheless, most of those individuals are found on the two lists.
48.
The Court recalls that, under Article 35(2) of the Rules of Procedure, “[w]hen [on
submission of the case] it has not been possible to identify one or more of the alleged
victims affected by the facts of the case, because it concerns mass or collective violations,
the Court shall decide whether to consider those individuals as victims.” In this way, the
Court observes that, in the submission of the case, during the public hearing, and in its final
written observations, the Inter-American Commission referred to the impossibility of
identifying all the presumed victims in the instant case, because of its exceptional nature
owing to its gravity and dimensions, as well as to “the specific characteristics of the
indigenous people.” The Commission indicated that the lack of evidence regarding the
existence and identity of the presumed victims it had presented was due, among other
matters, to the fact that the events in the instant case took place in the context of an armed
conflict; “that entire families were disappeared and […] there is no one who can speak for
[them…];” to the migration and forced displacement of witnesses; to the fact that the
community of Río Negro is composed of five family clans whose members share the same
names and surnames, and also to the fact “that the community of Río Negro was located at
many hours walk from the nearest population center where they could have registered”
births and deaths. The Commission also underscored that the community of Río Negro has
an oral tradition and a collective memory of the victims of the massacre but, despite this, the
witnesses “have not necessarily […] testified at the domestic level,” because the State “has
not provided sufficient judicial guarantees and judicial protection in this case.” Based on all
the above, the Commission requested that Article 35(2) of the Rules of Procedure be applied
in this case and that the Court accord “full value” to the list of names provided by the
representatives. The Commission did not make the same request with regard to its own lists.
For their part, during the public hearing and in their final written arguments, the
representatives presented arguments similar to those of the Commission and asked the
Court to determine the identity of the victims “based on sound judicial discretion.” During the
public hearing, the State indicated that it ha[d] no problem with accepting a certain
amplitude in the case [sic], with the exception [mentioned] in [its] preliminary objection […]
and [its] concerns.”
49.
Given the inconsistencies between the lists presented by the Commission and the
representatives, during the public hearing the Court indicated that, before it delivered the
Judgment, it was necessary to achieve “the greatest possible consistency as regards
identifications and the elements proving that these individuals existed.” The Court specified
that this did not necessarily have to be through birth or death certificates, and that there
could be other elements or documents that, in the context, could be reasonable and
acceptable, because the Court could only include those individuals who had been reasonably
identified on the list of victim for all relevant effects. The Court also stated that “the request
for lists [was] not a formalism that would prevent justice”; rather the purpose was
specifically “to be able to bring justice to those individuals who may eventually be considered
victims, and for a person to be considered a victim and granted reparations, that person
must be identified.” Hence, the Court’s intention “is not to obstruct the development of the
proceedings with formalisms, but rather, to the contrary, to adjust the definition provided in
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