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giving the latter all necessary guarantees to be able to defend himself, and
to ensure that the greatest justice is done.
XIV. However, the Court’s authority to review domestic trials is limited. When a
matter reaches the Court, it has already been decided by the domestic
courts. These courts have heard the case and gathered the corresponding
evidence directly; consequently, the international organ, which intervenes a
posteriori and does not take part directly and personally in gathering the
evidence, cannot re-assess the evidence and judge the case anew.
XV.
Bearing this in mind, the Inter-American Court, like all the other organs of
international supervision, has taken and continues to take great care not to
transform itself into one more court, and restricts its work to ensuring that
the domestic proceedings have complied scrupulously with the obligations
established in Article 8 of the Convention. The Court does not re-assess the
evidence of the trial in question, in order to decide, for example, that a
defendant in a criminal trial is innocent; rather, it considers whether the
domestic courts that decided the case were independent and impartial,
whether they have respected the obligation to, inter alia, grant adequate
time and conditions for preparing the defense and give the parties the
possibility of contesting the evidence submitted against them; in brief,
whether there has been a violation of the basic procedural norms
established in Article 8.
XVI. In this opinion, I will examine what I believe is one of the fundamental
defects of the second trial against Ms. Berenson: the evidence that was
admitted.
XVII. This Court has decided that paragraphs (b), (c), (d) and (f) of Article 8(2) of
the Convention were violated in the trial against Ms. Berenson before the
military court. A logical consequence of this is that the evidence submitted
in this trial has no validity for this Court. The Court states this in paragraph
171, when it establishes that “[t]aking into account the characteristics of
the military trial, about which this Court has already ruled, and also the
arguments of the alleged victim’s defense lawyers concerning the ‘allegedly
unlawful origin of the evidence adduced’ and the ‘unconstitutional nature of
the legislative framework in force’, this Court will only refer to the trial held
directly before the civil court.”
XVIII. Moreover, in this case, it is clear that evidence was admitted in the trial in
the civil jurisdiction that had been gathered in the trial before the military
court, and this Court does not consider such evidence valid. The complaint
filed the Provincial Prosecutor ad hoc offered as proof “the significance of
the evidence in the case files forwarded by the Exclusive Military
Jurisdiction” (Proven facts, paragraph 88(47)). The Superior Prosecutor
indicated that the facts described in the Prosecutor’s Report of February 15,
2001, had been confirmed, inter alia, by the police investigation report and
the records of the house search of two buildings from the trial before the
military court. The report also offered as evidence four attachments with
documentation from the same military trial (idem, paragraph 88(55)).
XIX. Lori Berenson’s defense lawyers contested the validity of these elements of
evidence in different ways, one of which was to ask that the file of the case
before the military court should be submitted to the trial before the ordinary
judge, “in order to verify that the trial complied with the norms of due
process of law and to examine the proceedings of the military court, from a
judicial perspective” (paragraph 88(57)). They also contested the veracity of
the police deposition.