the Court underlines that the fact that Ms. J. only had access to three supervised meetings of
between 15 and 25 minutes during the fourteen months of preventive detention, which has not
been denied by the State, is clearly disproportionate in relation to Ms. J.’s right to defend herself.
Therefore, the State violated paragraphs (c) and (d) of Article 8(2) of the Convention, in relation to
Article 1(1) of this instrument, to the detriment of Ms. J.
c.
Legal restrictions that prevented her from offering as witnesses those
who intervened in the elaboration of the police attestation (alleged
violation of Article 8(2)(f) of the Convention)
208. This Court has indicated previously that the prerogatives that must be granted to the
accused include that of examining the witnesses for and against them, under the same conditions,
in order to exercise their defense. 319 Article 13(c) of Decree-Law No. 25,475 was and is applicable
in the proceedings against Ms. J. According to this norm, “[d]uring the preliminary investigation and
the trial it shall not be possible to offer as witnesses those who intervened owing to their functions
in the elaboration of the Police attestation” (supra para. 71).
209. In addition, the Court stresses that, according to the testimony of Pablo Talavera Elguera,
president of the National Criminal Chamber who presided the preliminary investigation and the oral
hearing of the criminal proceedings opened against Ms. J., “in the specific case [of Ms. J.], most of
the sources of evidence were pre-constituted evidence, due to their urgent nature, and could only
be replicated indirectly in the oral hearing through the testimony of those who prepared the records
320
or intervened in obtaining them or, otherwise, by reading them.”
210. The Court considers, as it has previously, 321 that article 13(c) of Decree-Law No. 25,475
applicable to the proceedings against Ms. J., prevented her from exercising the right to question the
witnesses who intervened in the elaboration of the police attestation that substantiates the charges
against the presumed victim. The Court also finds that this constraint was particularly relevant in
the case of Ms. J., who, from her first statement (her police statement in 1992), has denied and
questioned the content of the search records and the police attestation used as the basis for the
charges against her. Consequently, the State violated Article 8(2)(f) of the Convention, in relation
to Article 1(1) of this instrument, to the detriment of J. Likewise, since this violation occurred as a
result of the application of article 13(c) of Decree 25,475, the State also failed to comply with
Article 2 of the Convention.
d. Legal restrictions regarding the means and opportunities to file
preliminary questions
211. Article 13(a) of Decree No 25,475 establishes that the “preliminary questions, requests for
preliminary rulings, objections and any other matter shall be decided with the judgment.” 322
212. The Court notes that this provision established a deferment of the resolution of the possible
preliminary questions to the sentencing stage. In fact, the judgment acquitting Ms. J. reveals that
several co-accused filed preliminary questions (such as the existence of res judicata), on which the
319
Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, reparations and costs, supra, para. 154, and Case of García Asto and
Ramírez Rojas v. Peru, supra, para. 152.
320
Affidavit prepared on May 6, 2013, by the witness Pablo Rogelio Talavera Elguera (merits report, folio 1083).
321
Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, reparations and costs, supra, para. 153; Case of Lori Berenson Mejía
v. Peru. Merits, reparations and costs, supra, para. 183, and Case of García Asto and Ramírez Rojas v. Peru, supra, paras. 154
and 161.
322
Decree-Law No. 25,475 of May 5, 1992, Article 13(a) (file of annexes to the answering brief, annex 7, folio 3261).
63
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