27
.
95.
On the other hand, the representatives and the State presented documents and
videos along with their corresponding briefs of final arguments. In its jurisprudence, the
Tribunal has considered that even though proceedings before this Court are less formal and
more flexible than the proceedings of domestic law, they do not forget to guarantee the
legal certainty and procedural equality of the parties.59 In the terms of Article 44 of the
Rules of Procedure, the Court considers that those documents have been presented in a
time-barred manner, and therefore they will not be included in the body of evidence of this
case.
96.
Without detriment to the aforementioned, it is necessary to guarantee that in each
case the Tribunal may be able to know the truth of the disputed facts, reason for which it
has ample powers to receive the evidence it considers necessary or appropriate,
guaranteeing the parties’ right to defense. Therefore, in certain cases, it may be
exceptionally necessary to hear the parties’ arguments with greater amplitude, assess the
evidence considered useful, relevant, or essential, and order other actions appropriate for
the solution of the disputed facts. The Court observes that, along with its final written
arguments, the State presented transcripts of the interviews of several of the alleged
victims that had not been previously included, among which we can mention those of
Messrs. Armando Amaya, Eduardo Sapene, Winston Gutiérrez, and Mrs. Luisiana Ríos before
attorneys of the Public Prosecutors’ Office. As indicated, the State presented information
and documents regarding the facts of the present case, along with its briefs and in response
to requests for evidence to facilitate adjudication of the case. Since they were part of those
investigations, and since it is considered useful and appropriate to have the maximum
number possible of statements of the alleged victims, the Court includes them into the body
of evidence, in the terms of Article 45(1) of the Rules of Procedure.
97.
Finally, upon forwarding copy of some actions in judicial investigations and
proceedings either open or processed at a domestic level, in response to a request of
evidence to facilitate adjudication of the case (supra para. 18), the State indicated that “in
what refers to the cases that are still in their Preliminary Stage, [the Public Prosecutors’
Office] reserves for third parties the investigation records, until that stage ceases, with only
the parties having access to the same.”
98.
The reservation of information from people foreign to the process in the preliminary
phase of criminal investigations is established in the different domestic legislations. In this
case, the accused State has stated the aforementioned as grounds to not send to the Court
the documents requested in relation to several domestic criminal proceedings. The
mentioned restriction may result reasonable in the domestic proceedings, since the diffusion
of certain information in a preliminary phase of the investigations could obstruct them or
cause the people damage. However, for effects of the international jurisdiction of this
Tribunal, it is the State who has control of the means necessary to clarify facts occurred in
its territory60 and, therefore, its defense cannot lie on the impossibility of the petitioner to
present evidence that, in many cases, cannot be obtained without the cooperation of state
agents.61 Therefore, the Court considers that the State’s refusal to forward some documents
cannot result in detriment to the victims, but only in damage to itself. Thus, the Tribunal
59
Cf. Case of the “White Van” (Paniagua Morales et al.) V. Guatemala, supra note 44, para. 70; Case of the
Gómez Paquiyauri Brothers V. Peru. Merits, Reparations, and Costs. Judgment of July 8, 2004. Series C No. 100,
para. 58; and Case of Molina Theissen V. Guatemala. Reparations and Costs. Judgment of July 3, 2004. Series C
No. 108, para. 23.
60
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra note 38, para. 136; Case of Gómez Palomino
V. Peru. Merits, Reparations, and Costs. Judgement of November 22, 2005. Series C No. 136, para. 106, and Case
of Yatama V. Nicaragua. Preliminary Objections, Merits, Reparations, and Costs. Judgment of June 23, 2005. Series
C No. 127, para. 134.
61
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra note 38, para. 135; Case of Chaparro Álvarez
and Lapo Íñiguez, supra note 31, para. 73, and Case of the Gómez Paquiyauri Brothers, supra note 58, para. 154.