[…]
3. Expert in chain of custody.
The expert opinion given by an expert on chain of custody, is aimed at showing that the evidence used in the
first and second criminal proceedings to convict members of the Colombian security forces for allegedly
launching a AN-MIA2 device on the hamlet of Santo Domingo, were obtained without complying with
protocols on chain of custody. [...]
4. High level expert on cassation.
The statement of an expert of the highest level, is aimed at explaining to […] the Court the manner in which
Colombia handles extraordinary appeals of cassation, its purpose, procedures, and aims. [...]
5. Expert report by an expert in forced displacement.
The expert report given by an expert in forced displacement, is aimed at establishing and clarifying the issues
related to the alleged violation of Article 22(1) of the Convention against the alleged victims by the Colombian
State. Similarly, it should be noted that the intervention of a expert will facilitate obtaining accurate
conclusions. Therefore, the expert evidence offered is relevant and useful. [...]
7. Subsidiary claim
Under the circumstance that the principal claim is not admitted, the Colombian government very respectfully
requests that if the Court itself so considers, it may provide the names of international experts, whether in
regard to expert evidence on the matters set forth above or any others deemed relevant and necessary to
achieve clarity and truth. In any event, the Colombian State will assume the costs of the expert witnesses
that the Court orders ex oficio.”
6.
In its final list of declarants, the State offered four expert witnesses and one witness, in
order to render statements at the hearing and via affidavit. At that time, the State identified
the persons it proposed as experts, provided their curriculum vitaes, and maintained the
purpose of the reports that had been initially proposed. Moreover, the State reiterated its
“subsidiary request.” (supra Considering clause. 5).
7.
On its behalf, in the brief on observations to the final list, the representatives expressed
that the offer of expert witnesses is contrary to the provisions of Article 41 of the Rules of
Procedure and thus time-barred. They further expressed that the State sought to remedy this
problem by seeking a subsidiary or alternative claim, which suggests, given the State’s
negligence, that the Court officially decreed the expert nominated by the State as part of its
regulatory power. Thus, the view ex oficio provides for the experts proposed by the State
within the Court’s regulatory powers. Therefore, the representatives considered that the State
renounced its request for expert witnesses, by not complying with the regulatory requirements
of an offer. Secondly, they presented challenges and objections to those expert witnesses who
were offered on the ground that there are impediments that affect their impartiality, and they
do not have technical ability to render the expert reports.
8.
Furthermore, the Commission stated that the mechanism used by the State for its
appointment of experts is not established in the Rules of Procedure, and thus the evidence
offered is time-barred, to which the State did not present any arguments, at any of the
procedural opportunities it had, regarding the circumstances established in Article 57(2)
regarding admissibility under exceptions. The Commission also argued that the alternative or
subsidiary claim of the State does not comply with the Court’s exercise of the power regarding
the seeking of evidence ex officio, as the only evidence offered would support its position in
this case, and because an offer on its behalf to fund international experts "ex officio” could be
problematic in light of the principle of equality of arms, since it is reasonable to infer that the
representatives do not necessarily have the same opportunity to make such offer.
9.
Pursuant to that established in Article 41(c) of the Rules of Procedure of the Court, the
opportune procedural moment for the presentation of expert evidence by the State is in its
answer brief. In this case, the State did not identify in its answer those persons proposed as
expert witnesses, but rather limited itself to arguing the necessity of the expert evidence,
defining the purpose of the expert reports it proposed. During this opportunity, the State did
not provide the curriculum vitaes; it expressed that it would provide them “as soon as
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