16
and motions filed by the State or, when appropriate, in the document setting out the
preliminary objections and the response thereto.
[…]
3. Should any of the parties allege force majeure, serious impediment, or the
emergence of supervening events as grounds for producing an item of evidence, the
Court may, in that particular instance, admit such evidence at a time other than those
indicated above, provided that the opposing parties are guaranteed the right of defense.
37.
At the public hearing, Mexico submitted a copy of the file of Preliminary
Investigation No. SC/179/2009/II-E of the Military Public Prosecutor’s Office based
on “a principle of basic transparency and the certainty that only with all the
elements” could the Court decide the present case. Moreover, at the end of the
hearing, the State submitted numerous documents relating to “public, institutional
and legislative policy measures” adopted by the State.37
38.
The representatives observed that this documentation “was not offered
when presenting its response to the application” and that the State had not alleged
any of the circumstances established in Article 46(3) of the Court Rules of
Procedure “to justify the time-barred presentation of the evidence in question.”
Consequently, they added that it is not possible to guarantee equality of arms given
the amount of information presented. As such, they “request[ed] that the evidence
presented by the State at the public hearing […] be summarily rejected.”
39.
Regarding the documents provided by Mexico during the public hearing that
relate to different State actions and policies concerning violence against women and
the investigation by the Military Public Prosecutor’s Office, the Court observes that
they were not submitted at the appropriate time; that is, with the response to the
application. Moreover, Mexico failed to justify the late presentation by alleging force
majeure, serious impediment, or supervening events, in other words, any of the
reasons set out in the Court Rules of Procedure that, as exceptions, allow evidence
to be submitted after the response to the application. Despite this, since they are
pertinent and useful for determining the facts of this case and the possible
consequences, in accordance with Article 47 of the Rules of Procedure, the Court
decides to admit said documentation.
40.
Furthermore, also during the public hearing, the expert witnesses
summoned to present their expert opinions handed over written copies of their
opinions, which were distributed to the parties. The Court admits these documents,
because it finds them useful for this case and, also, they were not contested, and
their authenticity or veracity was not questioned.
41.
In addition, both the State and the representatives forwarded documents
attached to their final written arguments. Among other documents, the State
provided a copy of Mexico’s Official Norm: NOM-046-SSA2-2005 “Domestic
Violence, Sexual Violence, and Violence against Women. Criteria for Prevention and
Attention.” For their part, the representatives forwarded vouchers for expenses
related to this case among other documents. While the representatives’ final
arguments brief was submitted opportunely on May 24, 2010, the attachments
were submitted a day after the allotted time had expired.
42.
Regarding Mexico’s Official Norm NOM-046-SSA2-2005, the representatives
advised that this legal provision had not been applied in the investigation into the
rape of Mrs. Fernández Ortega; it did not exist at the time of the facts, and it was
not applied in this case after it had been published. In addition, the norm is based
on international human rights instruments and, therefore, constitutes recognition
37
Cf. Record of receipt of documents of April 30, 2010 (case file on the merits, tome IV, folio 1588).