36
instant case (supra para. 27).15
114. The State objected to a document presented by the representatives as “new
evidence in the proceedings” (supra para. 35), which consists of the resolution of the
Nicaraguan Ombudsman of March 3, 2005, file No. 217/00, concerning the “complaint
filed by the […] legal representative of […] YATAMA” on August 24, 2000. The State
indicated, inter alia, that “it is inconceivable that State institutions, such as the Office
of the Ombudsman[...] can intervene at their own discretion, against the interests of
the State at the international level,” which “implies evident disloyalty to the State.”
Despite this, but bearing in mind the State’s objections, the Court admits it, applying
the rules of sound criticism and assessing this document together with the body of
evidence, because it is a resolution that relates to the facts of the instant case, issued
by a Nicaraguan State institution on March 3, 2005. Therefore, the Court adds it to the
body of evidence pursuant to Article 44(3) of the Rules of Procedure, as it has done in
a similar case.16
115. With regard to the testimonial statements and the written expert evidence
given before notary public (affidavits), as required by the President in an order of
January 28, 2005 (supra para. 28), the Court admits them to the extent that they
correspond to the purpose established in the said order and assesses them with the
body of evidence, applying the rules of sound criticism and bearing mind the
comments made by the State (supra para. 33). The Court accepts the waiver of the
representatives to present, in an affidavit, the expert evidence of Manuel Alcántara
Sáez (supra para. 30).
116. In relation to the sworn statements that were not made before notary public by
the witnesses, Nancy Elizabeth Henríquez James and Eklan James Molina, proposed by
the Commission and endorsed by the representatives (supra paras. 28 and 30), the
Court admits them and assesses them with the body of evidence, applying the rules of
sound criticism and bearing mind the State’s objections. On other occasions, the Court
has admitted sworn statements that were not made before notary public, when this
does not affect the legal certainty and the procedural equality of the parties.17 As the
Court has indicated, the statements of the alleged victims can provide useful
information on the alleged violations and their consequences.18
117. The State contested the sworn statement of the expert witness, Roberto
Courtney Cerda, presented by the Commission on February 23, 2005 (supra para. 31),
owing “to his impossibility” of providing his expert evidence in person during the public
hearing. The State indicated, inter alia, that this sworn statement was time-barred and
omitted “elementary formalities,” and also that Mr. Courtney Cerda “had not provided
his expert evidence in accordance with the order” of the President. In this regard, the
15
Cf. Case of the Serrano Cruz Sisters, supra note 10, para. 37; Case of De la Cruz Flores. Judgment
of November 18, 2004. Series C No. 115, para. 58; and Case of the Gómez Paquiyauri Brothers, supra note
10, para. 50.
16
Cf. Case of the Serrano Cruz Sisters, supra note 10, para. 42.
17
Cf. Case of the Serrano Cruz Sisters, supra note 10, para. 39; Case of Lori Berenson Mejía, supra
note 11, para. 82; and Case of the Gómez Paquiyauri Brothers, supra note 10, para. 58.
18
Cf. Case of the Serrano Cruz Sisters, supra note 10, para. 40; Case of Lori Berenson Mejía, supra
note 11, para. 78; and Case of Carpio Nicolle et al. Judgment of November 22, 2004. Series C No. 117, para.
71.
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