16
represents the [alleged] victims in this case and the formalities relating to the
signature of powers of attorney in no way affects their right to a defense.”
76.
Arguments of the representatives of the alleged victims
The representatives asked the Court to “reject this preliminary objection” and indicated
that:
(a)
The powers of attorney presented by the representatives do not have to
comply with the requirements established in domestic laws. Their validity
results from the fact that they identify unequivocally the person granting the
power, reflect an evident willingness, individualize clearly the entity to which
the power is granted, and indicate precisely the purpose of the representation.
The powers of attorney granted in this case show clearly the identification of
those granting them and individualize clearly the entities to which the powers
are granted;
(b)
“The declarations of the Agent of the State of Nicaragua during the
public hearing [...] show conclusively that the State has withdrawn the
arguments concerning defects in the powers of attorney submitted”;
(c)
Powers of attorney do not necessarily have to be presented at one
precise moment. The representatives may present the powers of attorney “at
any time subsequent to notification of the Commission’s application. […] Until
that time, according to Article 33(3) of the Rules of Procedure of the Court, the
Inter-American Commission ‘shall be the procedural representative’ of all those
[alleged] victims who have not appointed a representative”;
(d)
Article 44 of the Convention “grants considerable latitude for lodging
petitions before the Commission”;
(e)
There are special circumstances that justify why the representatives
have not presented all the powers of attorney;
(f)
There were difficulties in identifying the candidates elected by the
indigenous communities of the Atlantic Coast owing to their oral culture, which
explains the absence of written records, and owing to “the obstructive attitude
of the Nicaraguan State.” In its answer to the application, the State did not
present the official lists of candidates “and, consequently, the representatives of
the [alleged] victims [were] unable to individualize them and obtain the
respective powers of attorney from each of them”;
(g)
They have also encountered difficulties in obtaining the powers of
attorney of the candidates presented by YATAMA owing to the predominance of
the oral culture, problems of access and transport in the Atlantic Autonomous
Regions and their high cost for the indigenous people, the considerable number
of alleged victims, their cultural differences, and locating them; and
(h)
When referring to “the duly accredited representatives,” the purpose of
Articles 23, 33, 35 and 36 of the Court’s Rules of Procedure is to ensure that
the alleged victims or their next of kin, “when legally empowered to present
their arguments, requests and evidence, do not lack a proper defense in the
proceedings before the Court”.