Facts not included by the Commission in its application
The representatives alleged that Messrs. Cabrera y Montiel were “unlawfully and arbitrarily arrested, and later tortured” “due to their activism” in defense of the environment. They emphasized that these attacks “could be nothing other than a reprisal for their environmental activism.” The representatives also pointed out that this reprisal was part of a pattern of attacks against environmentalists and, in particular, against the Civil Association Organization of Environmentalist Peasants of the Sierra de Petatlán and Coyuca de Catalán (Organización de Campesinos Ecologistas de la Sierra de Petatlán y Coyuca de Catalán, hereinafter “the OEPSP”). Consequently, according to the representatives, “the local military units had information about the whereabouts” of Mr. Montiel Flores and his companions. The representatives further indicated that “[t]he way in which the arrest occurred, the physical and mental abuse to which Messrs. Cabrera and Montiel were subjected, their prolonged detention and the lack of information concerning their whereabouts […], caused their families feelings of deep desperation and anguish that continue affecting them to this day.”
In its merits report, the Commission, when assessing various allegations made by the representatives in order to determine whether what happened to Messrs. Cabrera and Montiel amounted to a reprisal for their activities in defense of the forests and whether this could be regarded as part of a pattern of similar reprisals and attacks against environmental activists, the Commission “note [d] that the petitioners did not allege violations of the rights enshrined in Articles 13 [freedom of expression], 15 [right of assembly], and 16 [freedom of association] during the admissibility phase.” Therefore, in its petition, the Commission only mentioned that in 1998 Messrs. Cabrera and Montiel, together with other peasants, established the OEPSP “in order to stop logging operations in the forests of the mountains of Guerrero which, in their opinion, threaten[ed] the environment and the livelihood of local peasant communities.”
The State argued that the Commission “never refer[red] to acts of harassment against members of [the OEPSP]” and that “[t]his issue was never mentioned in the [Commission’s] report” and “nor was it mentioned by the petitioners during the admissibility phase.” The State also indicated that the representatives, “conscious of the fact that the alleged threats against members of the OEPSP were not part of the litigation in the case sub judice,” presented “completely unfounded arguments in bad faith in order to link the criminal proceedings underway” to the alleged “acts of violence and harassment against the OEPSP,” even though “none of the case files indicate” that those acts “had occurred due to their involvement as members of [that organization]” and that, in addition, “there are no claims related to threats against the alleged victims before any domestic court.” Furthermore, it stated that “it is not possible to argue that the alleged acts of harassment are supervening events.”
The representatives stated that “[c]ontrary to the State’s claim, the Commission's application indicates that the direct victims in this case were members of the OEPSP” and it “also states that the victims have received awards for their work in defense of the environment […].” Additionally, the representatives “did not ask the Court to decide the case based on the context in which the facts occurred” but rather, as the Court has done in other cases, “to take into account the context in assessing the facts.” Therefore, they held that “the State is mistaken in indicating that [the representatives seek to] include acts of violence and harassment against the members of the OEPSP in the litigation of this case,” as their intention when referring to the context of the case is not to introduce “facts different from those established by the Commission in its application, but merely to develop, explain, and clarify [the latter].” Furthermore, the representatives alleged that “the way in which the arrest was carried out (including the treatment received during the arrest) and the criminal proceeding against the victims,” as well as the aforementioned events and “the circumstances in which they occurred, arise from the Commission's application.”
According to the Court’s consistent case law, alleged victims, their families or representatives in contentious proceedings before this Court, may invoke the violation of rights different to those included in the Commission’s application, provided that these refer to facts already included in the application,43 which constitutes the factual framework of the proceeding.44 Furthermore, since a contentious case is, essentially, a litigation between a State and a petitioner or a presumed victim,45 the latter may refer to facts that explain, contextualize, clarify or rebut those mentioned in the application, or else respond to the State’s claims,46 based on the arguments and evidence they provide, without impairing the procedural balance or the adversarial principle, since the State is given procedural opportunities to respond to these allegations at all stages of the proceedings. Moreover, the Court may be informed of supervening facts at any stage of the proceedings before it delivers judgment,47 provided these are related to the facts of the proceedings.48 It is for the Court to determine the need to prove the facts, as presented by the parties, or taking into account other elements of the body of evidence,49 provided the parties’ right to defense and the object of the litigation are respected.
In this case, the Court finds that in its report on admissibility, the Commission expressly stated that the petitioners alleged that all the violations they suffered were due to their work in defense of the environment.50 However, in its merits report, the Commission considered that those allegations “were neither legally nor factually connected to its admissibility report.”51 Subsequently, in its application – which establishes the factual framework of the case – the Commission only sets out as facts of the case that Messrs. Cabrera and Montiel were members of the OEPSP and that they received four awards for their defense of the environment; that, after their release, the alleged victims had not returned to Guerrero and that each one had requested asylum in a foreign country.52
In addition, unlike other contextual referents that were alleged by the Commission and will be analyzed subsequently (infra para. 65), the Commission did not assume that the work of Messrs. Cabrera and Montiel, the threats they allegedly suffered and the repression against defenders of the environment were related to the object of the case or were issues that should be decided by the Court and, therefore, that the violations alleged are based on said threats and repression. Furthermore, in its application the Commission did not include facts related to the desperation and anguish that the alleged victims’ families presumably suffered as a result of the alleged violations. The Commission in no way included the relatives as alleged victims in its report on the merits or in the application.
In this respect, on previous occasions the Court has settled the question of whether a particular case forms part of a context in its analysis of the merits of the case, and has found that “there are not sufficient facts in the case file for the Court to decide that the […] case is framed within the [context] situation” alleged by the Commission.53 However, in order to conduct such an analysis, the Commission must have put forward specific arguments showing that the case is framed within a particular context, something that did not occur in this matter in relation to the threats and repression for defending the environment. For that reason, in another case, the Court refused to rule on certain facts which, although presented as “contextual background concerning the history of the dispute,” were found not to have been brought before the Court “as a matter to be decided by the Court.”54 It is a different matter when the Commission considers that a fact which the Court considers as proven does not produce a particular violation or omits to argue that it produces a violation. In these cases, the Court has applied the principle of iura novit curia to declare the existence of a violation not alleged by the Commission.
Based on the foregoing, the Court considers that it is not appropriate to rule on facts alleged by the representatives which were not presented as such in the application by the Commission, that is, regarding the threats allegedly suffered by Messrs. Cabrera and Montiel before their arrest and after their release from prison, the alleged repression they allegedly suffered because of their work in defense of the environment, and the suffering allegedly experienced by the families of the presumed victims. Similarly, the Court shall not rule on the alleged violations of Articles 5 and 16 of the American Convention in relation to those facts.
