45
134. The Court therefore finds that the State violated Article 8(1) of the
Convention.
***
VIOLATION OF ARTICLE 8(2)(B) AND 8(2)(C)
(ADEQUATE TIME AND MEANS FOR
THE PREPARATION OF THE DEFENSE)
135.
Article 8(2)(b) and 8(2)(c) of the Convention provide that:
2. Every person accused of a criminal offense has the right to be presumed innocent so
long as his guilt has not been proven according to law. During the proceedings, every
person is entitled, with full equality, to the following minimum guarantees:
[…]
b) prior notification in detail to the accused of the charges against him;
c) adequate time and means for the preparation of his defense;
[…]
136.
Arguments of the Commission:
a)
under Article 8(2)(b) and 8(2)(c), any person accused of a criminal
offense has the right to know the charges against him and to have
adequate time and means to prepare his defense. In a number of
ways, the conduct of the military courts affected the presumption of
innocence that is fundamental to due process;
b)
the scant amount of time given to the defense lawyers and the news
that the judgment would be delivered the day after the attorney’s first
access to the case file made a “serious defense” as impossible as it
was illusory, all in violation of Article 8(2)(c) of the Convention;
c)
under Decree-Law No. 25,659, the time limits given for fulfillment of
procedural requirements in treason cases are two thirds shorter than
they are in terrorism cases. Also, for treason cases Decree-Law No.
25,708 requires the summary proceeding “established under the Code
of Military Justice for trials in the “theater of operations.” It also
stipulates that the finding of the judge of inquiry must be issued
“within a maximum of 10 days, and the Military Superior Court’s
review within five days.” The proceeding “in the theater of operations”
is “the […] most summary proceeding provided for under the Code of
Military Justice.” During such proceedings, the accused has no means
of challenging the reports and evidence;
d)
with legislation of this type, “the court’s inquiry is meaningless, since
decisions are based on the findings contained in the police
investigation reports.” Judgments in the military courts are not the