which she was involved. The State argued that “Ms. J. was not compelled to sign the records of the
seizure or of the house search” and that “she was able to testify freely, without any type of coercion
or censure,” so that “[t]he limited communication [of J. […] with the lawyer of her choice is not a
matter that can be attributed to the State.” It also argued that the “restrictions [due to which the
presumed victim could only speak to her lawyer under the strict supervision of the authorities],
arose from the confidential nature of the proceedings more than from a goal of restricting her right
of defense.” It also indicated that the prohibition to question police officials “did not prejudice her in
any way, given that she was acquitted”; moreover, “it has not been proved that she sought the
presence of the officials who took part in the elaboration of the police attestation and that this was
refused.” The State argued that, despite the said restriction, currently, Ms. J.’s defense counsel “has
the right to question the witnesses who appear at the preliminary investigation stage and during the
oral hearing, as well as to present any witnesses she may deem pertinent” or the possibility that
another interpretation of the Constitution is used in her specific case. Regarding the limitations to
the filing of remedies and preliminary questions, the State argued that Decree 25,475 “did not
establish a prohibition to pose such questions, but determined that they must be decided at the
time of the judgment”; also, that “it has not been proved that her defense counsel were prevented
from filing any remedy related to her case.”
ii. Considerations of the Court
193. In this case, a violation of the right to defend oneself is being alleged on the following
grounds: (a) the failure to notify Ms. J. of the investigation opened against her and of the reasons
for her detention; (b) the limitations J. had to converse with her lawyer; (c) the legal restrictions
that prevented her from offering as witnesses those who intervened in the elaboration of the police
attestation; (d) the legal restrictions regarding the means and opportunities to file preliminary
questions, and (e) the alleged coercion Ms. J. received while she was detained, presumably to make
her plead guilty. The Court will now examine each of these alleged violations.
a. Failure to notify Ms. J. of the investigation opened against her and of
the reasons for her detention (alleged violation of Articles 8(2)(b) and
7(4) of the Convention)
194. This Court has established that it should be possible to exercise the right to defend oneself
as soon as a person is named as a possible perpetrator of, or participant in, an illegal act and only
culminates when the proceedings end. 298 Affirming the contrary implies that the convention-based
guarantees that protect the right to defend oneself, including Article 8(2)(b), are contingent on the
investigation being at a specific procedural stage, leaving open the possibility that, prior to this, the
rights of the accused are affected by acts of authority that he is unaware of or that he cannot
control or oppose effectively, which is evidently contrary to the Convention. 299 The right to defend
oneself obliges the State to treat the individual at all times as a true subject of the proceedings, in
the broadest sense of this concept, and not simply as its object. 300
195. Accordingly, Article 8(2)(b) of the Convention is in effect even before an “accusation,”
strictly speaking, is formulated. To ensure that the said article can meet its intrinsic objectives, the
notification must take place before the accused gives his first statement 301 before any public
authority. 302
298
Cf. Case of Barreto Leiva v. Venezuela, supra, para. 29, and Case of López Mendoza v. Venezuela. Merits, reparations
and costs. Judgment of September 1, 2011. Series C No. 233, para. 117.
299
Cf. Case of Barreto Leiva v. Venezuela, supra, para. 29.
300
Case of Barreto Leiva v. Venezuela, supra, para. 29 and Case of López Mendoza v. Venezuela, supra, para. 117.
301
Cf. Case of Tibi v. Ecuador, supra, para. 187, and Case of Barreto Leiva v. Venezuela, supra, para. 30.
302
Cf. Case of Barreto Leiva v. Venezuela, supra, para. 30.
59
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