25
51.
The Court has established that in international proceedings it is necessary to
secure the acquaintance with the truth and the most comprehensive possible
submission of the facts and arguments by the parties, ensuring them the right to the
defense of their respective positions. The submission of testimonies or expert
opinions by means of a written statement given before a public official whose acts
command full faith and credit (affidavit) does not allow the parties to “crossexamine” witnesses or expert witnesses, since there is a procedural stage at which
the parties may file the comments they may deem relevant pursuant to the principle
of the adversary proceedings,14 as the State did in its pleading on February 10, 2006
regarding the expert opinion given by Mr. Pablo Balmaceda-Rodríguez (supra para.
34(h)).
52.
On that occasion the State challenged “the expert opinion on the alleged dead
persons, since it was based on interviews with some of their next of kin, [that] is,
the expert witness had not treated t[h]em before, and no diagnoses had been made
regarding the alleged diseases they suffered.”
53.
The Court takes into consideration that in order to establish the cause of
death of some persons and its relation to the medical and health conditions
prevailing in the settlements of the members of the Sawhoyamaxa Community,
expert witness Pablo Balmaceda-Rodríguez visited the Community and interviewed
the mothers of the victims or their next of kin. It is clear that such a report would be
more comprehensive and reliable if it had been carried out on the dead people or
based on previous diagnoses of the diseases they suffered. However, within the
context of the facts alleged in the instant case, which precisely refer to the alleged
neglect of the members of the Community, and given their actual impossibility to
obtain further supporting evidence, it is to be admitted that the knowledge of the
expert witness may be gained based on the data and elements that were available to
him.
54.
On the other hand, though the State questioned the expert opinion given by
Mr. Balmaceda-Rodríguez, it did not tender any documents to support its statements
or to challenge the assessment of the facts or the findings contained therein.
Furthermore, the State, failed to submit to the Court the evidence requested thereby
to facilitate the adjudication of the instant case (supra para. 26), which in
conjunction with the opinion stated by the expert witness himself, by the
representatives and by the Commission leads the Court to assume the non-existence
of further diagnoses or medical evidence regarding the diseases the members of the
Community allegedly suffered.
55.
In fact, for the purpose of gaining the best possible knowledge of the disputed
facts, and pursuant to Article 45(2) of the Rules of Procedure (supra para. 22), the
President deemed advisable to request the State and the representatives that, as
evidence to facilitate the adjudication of the instant case, they forward the birth and
death certificates, autopsy protocols, and any other relevant documents which may
reveal the causes of the alleged deaths of the members of the Sawhoyamaxa
Indigenous Community mentioned as alleged victims of the violation of the right to
life. Likewise, he requested the State that it submit to the Court:
14
Cf. Case of Palamara-Iribarne. Judgement of November 22, 2005. Series C No. 135, para 58.