The Court recalls that preliminary objections are a mechanism whereby a State seeks, in a preliminary manner, to prevent the analysis of the merits of a disputed matter and, to this end, it may file an objection to the admissibility of a case or to the competence of the Court to hear a specific case or any of its aspects, due either to the person, subject matter, time or place, provided that the said claims are of a preliminary nature.21 If these claims cannot be considered without first analyzing the merits of a case, they cannot be analyzed by means of a preliminary objection.22
Regarding this case, the Court considers that the claims presented as “preliminary objections” by the State refer to formal requirements for submission of the case and correspond to matters relating to the merits or, eventually, to the reparations, but do not affect the Court’s competence to hear this case. In other words, they are not a matter for preliminary objections.
Nevertheless, the Court considers, with regard to the first point, that the State has questioned, on the one hand, whether or not the requirements established in Article 35(1) and 35(2) of the Rules of Procedure concerning the identification of the presumed victims in the case was complied with, and this will be analyzed in the following chapter under Preliminary Considerations (infra Chapter VI). On the other hand, the State has questioned the status or condition of several persons as presumed victims, and this will be examined and decided by the Court in the chapter on reparations of this Judgment (infra paras. 420 to 435).
Regarding the second point, the Court notes that the affirmation made would entail a detailed analysis of the appropriateness and effectiveness of the measures implemented by the State to comply with the Commission’s recommendations in the Merits report. This must be analyzed, if pertinent, when establishing the reparations if the alleged violations of the Convention are verified. The third claim refers to matters concerning the admissibility of the evidence and not of the case itself, and was ruled on by the President of the Court in the Order of December 19, 2012.23 Lastly, it is not for the Court to rule in a preliminary manner on the factual framework of the case, because this analysis corresponds to its merits and, at that time, the State’s claims can be taken into account, if pertinent.
VI
PRELIMINARY CONSIDERATIONS ON THE PRESUMED VICTIMS
In relation the State’s claim concerning the individualization of the persons who may be considered presumed victims in this case (supra para. 23), the Court notes that, in its brief submitting the case, the Commission indicated that, pursuant to Article 35 of the Court’s Rules of Procedure, it attached Merits report 64/11, which included an annex on the identification of the presumed victims, with the names of 446 persons.24 However, in the same brief, the Commission indicated “that in a communication subsequent to the issue of the Merits report, the representatives of the victims presented an organized, revised and completed list of victims of forced displacement” and that, on “the said list they had included 26 new families of victims, who had not been able to be present at the time the first census was conducted.” This second list is included among the annexes from the proceedings before the Commission25 that were forwarded to the Court, and 497 persons appear on it.26 In addition, in a communication of January 25, 2012, the Commission forwarded a third list of victims that had been provided by the presumed victims’ representatives in a brief of November 2, 2011, in which they underlined that the list of victims with the Merits report did not correspond to all those who, since March 1997, had been part of the organizational process and subjects of the domestic and international proceedings.27 The names of 512 persons appear on this third list.28 Regarding the differences between the lists, the Commission stressed that, in the instant case, a series of complications and difficulties had arisen that justified precisely the need to adopt flexible criteria to respond to is particularities.
Subsequently, in their motions and arguments brief, the representatives presented a fourth list of presumed victims with 531 names. In this brief, they asked that the Court: (a) exclude from the universe of presumed victims those who, by error, had been considered as such without this being so, by the Inter-American Commission;29 (b) recognize as victims, 121 persons who had not been listed in the Merits report prepared by the Commission and who were presumed victims of Operation Genesis and the simultaneous paramilitary incursion, and (c) incorporate the complete list of the next of kin of Marino López who were displaced during Operation Genesis and who, in addition, were ancestral inhabitants of the Cacarica River basin.30 Later, during the public hearing, the representatives indicated that “the universe of victims we are talking about in this case is composed of 531 persons,” and that “[the list] is indeed different from the initial list presented by the Inter-American Commission.”31 They added that these differences are explained by “the difficulties of access to the territory where there is armed conflict and the permanent danger faced by the communities when preparing a definitive list of victims.”32
The Court recalls that, under Article 35(1) of the Rules of Procedure, the report to which Article 50 of the Convention refers “must establish all the facts that allegedly give rise to a violation and identify the presumed victims.” Thus, it corresponds to the Commission and not to this Court to identify the presumed victims in a case before the Court precisely, and at the appropriate procedural opportunity.33However,the Court recalls that, according to Article 35(2) of the Rules of Procedure, “[w]hen it has not been possible to identify [in the brief submitting the case] one or more of the alleged victims who figure in the facts of the case because it concerns massive or collective violations, the Court shall decide whether to consider those individuals as victims.”
As noted, in this case the lists presented by the Commission and by the representatives differ, because more persons are included on the latter (supra paras. 37 and 38). Furthermore, it is relevant to recall that, during these proceedings, the Commission made repeated reference to the complexities and difficulties to fully identify all the presumed victims in the specific circumstances of the case, and to the consequent need to adopt flexible criteria to respond to its particularities. The representatives shared this opinion. In addition, as indicated by the representatives, without this being contested, the special characteristics of the context and the difficulties of access to the territory were recognized by the State itself when it referred to the reasons why it had not investigated the events surrounding the forced displacement adequately.
In application of Article 35(2) of the Rules of Procedure, in order for a person to be considered a victim and to be awarded reparation, he or she must be reasonably identified. However, as noted in the main briefs, the case refers to events involving several hundred persons who were forced to displace to different places that took place around 15 years ago, in an area of difficult access and with the presence of illegal armed groups. The Court recalls that its objective is not “to obstruct the development of the proceedings with excessive formalities, but rather, to the contrary, to adapt the definition given in the judgment to the requirements of justice.”34
Consequently, bearing in mind the scope and nature of the facts of the case, as well as the time that has passed, the Court finds it reasonable that it is difficult to identify and to individualize each of the presumed victims, especially in the case of displaced populations, in a vulnerable situation, that are difficult to locate. On this basis, the Court considers it reasonable that the initial list of presumed victims presented by the Commission could have varied during the processing of this case, and therefore, in application of Article 35(2) of the Rules of Procedure, the Court will take into account the list presented by the representatives in their motions and arguments brief.
