-26-
38.
With regard to the sworn written statements and expert reports made before
notary public (affidavits) by the witnesses and expert witnesses proposed by the
Commission and endorsed by the representatives and the State (supra para. 8 and
9), and also the videos of the statements made before notary public (affidavits) by
Fernando Serrano Cruz, Andrea Dubón Mejilla and María Victoria Cruz Franco, which
were presented by the representatives (supra para. 9), in response to the order of
the President of August 6, 2004, the Court admits them to the extent that they
correspond to the purpose defined in the said order and assesses them with the body
of evidence, applying the rules of sound criticism and taking into account the
observations submitted by the parties (supra paras. 11 and 12).
39.
Regarding the sworn statements that were not made before notary public by
the expert witnesses, Rosa América Laínez Villaherrera and David Ernesto Morales
Cruz, proposed by the Commission and endorsed by the representatives, and by the
expert witness, Ana C. Deutsch, proposed by the representatives (supra paras. 9 and
10), the Court accepts them and assesses them with the body of evidence, applying
the rules of sound criticism and taking into account the States objections.9 On other
occasions, the Court has accepted sworn statements that were not made before
notary public and has established that the procedure is a measure to ensure that
justice is done, because justice cannot be sacrificed to mere formalities, without legal
certainty and the procedural equality of the parties being affected. Since the
proceedings before this international Court relate to human rights violations and,
consequently, protect the principle of the historical truth, it has a less formal
character that a proceeding before the domestic authorities.10
40.
The State indicated that “the sworn written statement [made by María
Victoria Cruz Franco,] differs from the video that was submitted, although it is
affirmed that they were simultaneous[;] the filming is abruptly cut twice; [… and]
the CEJIL representative and the other person conducting the interview induce the
witness.” The Court accepts the video submitted by the representatives and the
respective sworn statement (supra para. 9); however, it will assess the content of
the video and the sworn statement together with the body of evidence, taking into
account the State’s observations (supra para. 12) and applying the rules of sound
criticism. Additionally, the Court will bear in mind that María Victoria Cruz Franco
died before the public hearing before the Court was held and that the sworn
statement and the video of this statement are the only way in which the Court can
examine the most recent direct testimony of the mother of Ernestina and Erlinda
Serrano Cruz. In this regard, since she is the alleged victims’ mother and had a
direct interest in the case, her statement must be assessed together with all the
evidence in the proceedings and not in isolation. As the Court has indicated, in
matters concerning merits and reparations, the statements of the alleged victims,
and their next of kin, are useful insofar as they can provide more information on any
9
Cf. Case of Lori Berenson Mejía, supra note 3, para. 78; Case of Carpio Nicolle et al., supra note
3, para. 72; and Case of the “Juvenile Reeducation Institute”. Judgment of September 2, 2004. Series C
No. 112, para. 85.
10
Cf. Case of Lori Berenson Mejía, supra note 3, para. 82; Case of the Gómez Paquiyauri Brothers.
Judgment of July 8, 2004. Series C No. 110, para. 58; and Case of Molina Theissen. Reparations, supra
note 4, para. 23.