15
proceedings,” vii) “the implications of the Constitutional reform regarding
criminal justice passed in June 2008 for the [alleged] practice of violations
mentioned,” and viii) “the present necessary reforms to stop admitting any
depositions obtained without any judicial control in criminal proceedings;”,
3)
Christian Tramsen, former adviser to Physicians for Human Rights –
Denmark (PHR), who examined the alleged victims in July 2000 in order to
determine whether they had been tortured; an expert witness presented by
the representatives, who issued a technical opinion on the following
aspects: i) the physical and psychological health of Messrs. Cabrera and
Montiel in July 2000; ii) “the relation between the symptoms he found and
the facts that the [alleged] victims described to the doctors of PHR;” iii) the
method used to perform the medical examination and how such method
allegedly detects torture a year after the alleged facts had occurred; iv) “the
methodology internationally accepted that must be followed in order to
determine torture,” and v) “the minimum standards in medical check-ups of
detainees under the State jurisdiction in criminal proceedings, analyzing
them from the standpoint of the content of the medical certificates issued
regarding the health conditions of Messrs. Montiel and Cabrera by State
forensic doctors,”32 and
4)
Juana Ma. del Carmen Gutiérrez Hernández, official forensic
physician expert witness at the General Attorney’s Office of Mexico, an
expert witness presented by the State, who issued a technical opinion on
forensic medicine about the following medical evaluations: i) the tests
conducted on the alleged victims on the days following the facts of this
case; ii) the test used as a basis to release the alleged victims from prison,
and iii) the test conducted by Physicians for Human Rights – Denmark, as
well as regarding the relation between such medical evaluations and the
criminal proceeding in this case.
2.
Admission of Documentary Evidence
27.
In the case at hand, as in many other cases,33 the Court admits the
evidentiary value of such documents forwarded by the parties at the appropriate
procedural stage that have not been disputed nor challenged, or its authenticity
questioned. In relation to the documents forwarded as an answer to the request, in
32
The State requested a reconsideration of the decision made by the Court’s President regarding
summoning Mr. Tramsen as an expert witness. The full Court rejected such request. In its request, the
State objected to Mr. Tramsen for “having been a defender and person of trust" of Messrs. Cabrera and
Montiel and for indicating that “he did not know nor represented the alleged victims before issuing his
opinion […] at the domestic level.” The State further alleged that this attitude “questions the
impartiality, objectivity and truthfulness with which the expert witness rendered his opinion.” In this
respect, the Court noted that the State “did not point out in which way Mr. Tramsen would have acted
as defense counsel" nor "presented copies of his acting as a legal-technical support during the
statements rendered before the prosecutors or judges or that it had filed judicial remedies or legal
arguments about what happened.” The Tribunal noted that “Mr. Tramsen is a physician” and that his
“intervention as a physician does not seem to be related to a legal representation”; therefore, the lack
of truthfulness argued by the State is not admitted. As to the lack of objectivity, the Court agreed with
the President regarding the fact that “the objectivity an expert witness should have, even at the
domestic level, does not end for the rendering of an expert opinion on another occasion". To this end,
even when “the domestic courts would have adopted, communicated and assessed said expert opinion
prior to the hearing of the case by the Tribunal, that does not imply that said opinion is no longer an
expert or objective one.” Cf. Case of Cabrera Garcia and Montiel Flores v. Mexico. Order of the InterAmerican Court of August 23, 2010; dissenting opinion of Eduardo Vio Grossi, Judge.
33
Cf. Case of Velásquez Rodríguez v. Honduras. supra note 25, para. 140; Case of Rosendo
Cantu et al v. Mexico; supra note 30 and Case of Ibsen Cárdenas and Ibsen Peña v. Bolivia, supra note
30, para. 42.