46
over whom even the military judge had powers of discipline and control. Second, it was not a
technically qualified defense lent by a legal professional, as required by international law.”
The Commission added, “the totality of these restrictions on the right to defense during the
stage of the procedures before military justice was not rectif[ied] in the subsequent civilian
jurisdictions that heard the process. The victims’ right to defense was therefore undercut
constantly during the entire process, as was the principle of equality of arms that should be
safeguarded by judicial authorities in criminal proceedings.” The Commission therefore held
that the State had violated the right of the alleged victims to be assisted by an attorney during
the procedures in the military jurisdiction, in violation of article 8(2)(d) and (e).
171. The representatives agreed in general terms with the Commission’s arguments.
Representatives De Vita and Cueto added that the petitioners they represented had
experienced violations of articles 8(2)(b), (d) and (e) of the Convention, while representatives
Vega and Sommer posited in the pleadings and motions brief that the State was responsible
for violating articles 8 and 25 of the Convention; however, in their final written pleadings,
they asked to Court to judge violation of article 8(1), 8(2)(d), 8(2)(g) and 8(3).
172. The Inter-American Defenders stated, “[i]n the development of the process before
the military courts, the petitioners we represent were prevented from receiving the assistance
of defense attorneys, and this severely constrained their right to defense, producing a
procedural imbalance and leaving the alleged victims unprotected from the exercise of
punitive power. They concluded, therefore, that the State had violated the right to be assisted
by legal counsel during the proceedings in the military jurisdiction and to communicate freely
and privately with their counsel, as required in articles 8(1), 8(2)(b), (d) and (e) of the
Convention.
173. The State said only that the lack of technically qualified defense is a matter that lies
outside the temporal jurisdiction of the Court.
B.2 Considerations of the Court
174. Article 8(2) of the Convention, subparagraph (d), establishes “the right of the accused
to defend himself personally or to be assisted by legal counsel of his own choosing, and to
communicate freely and privately with his counsel.” Subparagraph (e) outlines the “the
inalienable right to be assisted by counsel provided by the state, paid or not as the domestic
law provides, if the accused does not defend himself personally or engage his own counsel
within the time period established by law”.
175. 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. 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. 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.182
182
Cfr. Case of Barreto Leiva v. Venezuela, par. 29, and Case of J. v. Peru, par. 194.