246. The Court stresses that there is a clear difference between statements indicating a suspicion
that someone is responsible for a specific offense and those in which it is clearly established, in the
absence of a guilty verdict, that someone is responsible for the offense in question. 362 In the instant
case, the statements of several high-level State officials are categorical about the guilt of Ms. J. for
offenses of which she has never been convicted. The Court takes note of the State’s argument that
the newspaper articles did not necessarily repeat the literal meaning of the statements.
Nevertheless, it notes that, beyond this, the State has not denied the different statements made in
communiqués, reports and articles, but, to the contrary, tried to justify those statements issued in
2007 and 2008 based on the moment at which they were made, shortly after J. had received an
award relating to international justice (supra para. 232).
247. In this regard, the Court reiterates that the State authorities must take into account that
public officials are guarantors of the fundamental human rights and, therefore, their statements
cannot ignore these. 363 This obligation of special care is particularly accentuated in situation of great
social conflict, disturbance of public order, and social or political polarization – such as the counterterrorism struggle in Peru – precisely due to the series of risk that this may entail for certain
persons or groups at a given moment. 364 The presumption of innocence does not prevent the
authorities from keeping society duly informed about criminal investigations, but requires that,
when they do so, they should observe the discretion and circumspection necessary to guarantee the
presumption of innocence of those possibly involved. 365
248. The Court considers that the presentation of Ms. J. before the press by the DINCOTE, when
she was identified as a member of Shining Path related to the publication of El Diario, as well as the
categorical and unqualified statements of diverse State officials at different times, has encouraged a
belief in Peruvian society of her guilt, when she has not been convicted of the offenses of which she
has been accused, and has prejudged the evaluation of the facts by a competent judicial authority,
so that the State has violated the presumption of innocence of Ms. J., recognized in Article 8(2) of
the Convention, in relation to Article 1(1) of this instrument.
b. Second stage of the criminal proceedings against Ms. J. based on
evidence that was allegedly illegal
249. According to the Commission and the representative, the criminal proceedings opened
against Ms. J. were based on illegal evidence, which also violated the presumption of innocence. In
this regard, the Court takes note that in its judgment of January 3, 2003, the Constitutional Court
established that “it is necessary to realize the difference between sources of evidence and means of
evidence. While the former are extra-procedural realities the existence of which is independent of
the proceedings, the latter are procedural acts and, consequently, constitute an internal reality of
the proceedings.” 366 Thus, the Constitutional Court indicated that:
362
See, inter alia, G.C.P. v. Romania, no. 20899/03, § 55, 20 December 2011, and Ismoilov and Others v. Russia, no.
2947/06, §166, 24 April 2008.
363
Cf. Case of Apitz Barbera et al. (“First Contentious Administrative Court”) v. Venezuela, supra, para. 131; Case of Ríos
et al. v. Venezuela, supra, para. 139, and Case of Perozo et al. v. Venezuela, supra, para. 151.
364
Cf. Case of Ríos et al. v. Venezuela, supra, para. 139, and Case of Perozo et al. v. Venezuela, supra, para. 151.
365
In this regard, the European Court of Human Rights has indicated that: “The freedom of expression, guaranteed by
Article 10 of the Convention, includes the freedom to receive and impart information. Article 6 § 2 cannot therefore prevent the
authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the
discretion and circumspection necessary if the presumption of innocence is to be respected”. ECHR, Allenet de Ribemont v.
France, 10 February 1995, § 38, Series A no. 308.
366
Judgment of the Constitutional Court of January 3, 2003, File No. 010-2002-AI/TCLIMA, conclusion 162 (merits report,
folios 1577 and 1578).
74
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