22
the Tlapaneca community, although they are fully aware that the alleged threats
are not part of the litigation of the case sub judice.” The foregoing are “two
proceedings with two distinct litigations that are totally disconnected.” One is the
current contentious proceeding and the other the procedure relating to provisional
measures ordered in favor of Mrs. Fernández Ortega et al. on April 30, 2009.
According to the State, the facts reported by the representatives “do not have the
least phenomenological connection with the facts of these proceedings; to the
contrary, they attempt to introduce into the dispute facts that differ from those
that constitute its factual framework.”
69.
Regarding the facts of the present case, the Court finds it appropriate to
recall that the application constitutes the factual framework of the proceedings. As
it has indicated previously,46 although the parties may submit supervening facts to
the Court at any stage of the proceedings prior to delivery of the Judgment, this
does not mean that any situation or event constitutes a supervening fact for the
effects of the proceedings. A fact of this nature must have a phenomenological
connection to the facts of the proceedings; consequently, it is not sufficient that a
specific situation or act is related to the purpose of the case for this Court to be
able to rule on it. Moreover, the submission of alleged supervening facts does not
constitute a new opportunity for the parties to introduce facts that differ from those
that form the factual framework of the proceedings.
70.
In this case, as in many others, a procedure for provisional measures is
being developed in parallel, but autonomously, to the processing of the contentious
case. The purpose of the former procedure, which is of an accessory, precautionary
and protective nature, is distinct from the purpose of the latter, as regards the
facts, the procedural aspects, the assessment of the evidence, and the scope of the
decisions. Although the facts, arguments, legal grounds or probative elements aired
in the context of the provisional measures may be closely related to the facts of a
contentious case, they cannot automatically be considered supervening facts.
71.
The Court observes that the information forwarded by the representatives
relates to the alleged threatening acts against a witness and one of the
organizations that represent Mrs. Fernández Ortega; that is, they do not concern
the purpose of this contentious case, and the alleged facts are not directed against
the alleged victims hereof. Thus, in accordance with Article 46(3) of the Rules of
Procedure, these documents are not admitted as evidence of alleged supervening
facts concerning this contentious case. Notwithstanding the foregoing, the Court
recalls that the alleged acts of harassment and threats against individuals directly
and indirectly linked to this case are being considered by the Court by way of the
provisional measures it has ordered (supra Chapter V).
72.
Finally, with its final written arguments, Mexico provided a copy of the
proceedings under Preliminary Investigation No. SC/179/2009/II-E of the Military
Attorney General’s Office, while the representatives forwarded documents
concerning alleged supervening facts that took place during May 2010.
73.
The representatives observed that the proceedings of said Preliminary
Investigation prior to December 13, 2009, could not be considered evidence of
supervening facts; hence, admitting them would violate legal certainty and equality
of arms. However, should they be accepted, they indicated that said documents
“illustrate the State’s persistence in breaching its international commitments in the
area of human rights and the mandates of the Court,” given that the State
46
Cf. Case of Ríos et al. v. Venezuela. Preliminary Objections, Merits, Reparations, and Costs.
Judgment of January 28, 2009. Series C No. 194, para. 56; Case of Perozo et al. v. Venezuela.
Preliminary Objections, Merits, Reparations, and Costs. Judgment of January 28, 2009. Series C No.
195, para. 67, and Case of González et al. (“Cotton Field”), supra note 15, para. 17.