64
156.
Moreover, this Tribunal considers that one of the guarantees inherent in
the right to defense is to have adequate time and means for the preparation of his
defense, which binds the State to allow access of the accused to the record of the
case and to the evidence gathered against him.238
157.
In the instant case, on May 4, 1999, Messrs. Cabrera and Montiel rendered
their statements in the Public Prosecutor’s Office in the presence of their courtappointed defense counsel and attesting witnesses.239 Afterwards, on May 6, 1999,
Messrs. Montiel and Cabrera rendered a second statement before the Public
Prosecutor’s Office in the presence of a federal court-appointed defense counsel.240
On May 12, 1999 the first instance court issued a formal order of detention against
Messrs. Cabrera and Montiel,241 which was appealed on the next day by the
victims. In that appeal, a new defense counsel was appointed by the court.242
Afterwards, on July 13, 1999 a private defense counsel accompanied them to
render an expansion of the statement.243 On August 20, 1999, Messrs. Cabrera and
Montiel appointed attorneys Digna Ochoa y Plácido, Maria del Pilar Noriega and
Jose Cruz Lavanderos Yañez as private defense counsel.244 As from that moment,
the Miguel Agustín Pro Juarez Center of Human Rights (Centro de Derechos
Humanos Miguel Agustín Pro Juárez) assumed the defense of Messrs. Cabrera and
Montiel and filed several arguments and remedies.
158.
The representatives reject the actions taken by the court-appointed
defense counsels during the proceeding, taking into account that by failing to
challenge certain supporting events, such events would have played an important
role to condemn them afterwards. At the domestic level, the defense counsel of the
victims argued that the statements of May 4 and 6, 1999 were not rendered before
the Public Prosecutor’s Office but that such statements were signed at the military
battalion and that the alleged victims were always in the custody of military officers
during those days.245 The representatives alleged then "that, at some moment,
238
Cf. Case of Palamara Iribarne v. Chile. Merits, Reparations and Costs. Judgment of November
22, 2005. Series C N° 135, para. 170; Case of Barreto Leiva v. Venezuela, supra note 100, para. 54.
239
Statement of Messrs. Cabrera and Montiel of May 4, 1999, supra note 142, folios 8198 to 8199.
240
Statements of Messrs. Cabrera and Montiel of May 6, 1999, supra note 132, folios 9777 to 9782
and 9783 to 9786.
241
Court order of constitutional term issued on May 12, 1999 by the First Instance Court in
Criminal Matters of the Judicial District of Mina (record of annexes to the answer to the application,
volume XXIII; folios 9844 to 9874).
242
Record of the appeal “against the resolution for not agreeing with it.”.” Cf. Court order of
constitutional term issued on May 12, 1999, supra note 241, folio 9874.
243
Statement of the private defense counsel before the Fifth District Court of July 13, 1999 (record
of annexes to the answer to the application, volume XXIII, folio 10035).
244
Brief signed by Messrs. Cabrera and Montiel of August 20, 1999 by which they requested the
Fifth District Court “[t]o consider as […] unique private attorneys [Digna Ochoa and Plácido, Maria del
Pilar Noriega and Jose Cruz Lavanderos Yañez]” (record of annexes to the answer to the application,
volume XXIV, folio 10108 to 10109).
245
In this context, Mr. Montiel Flores indicated, as to the court-appointed defense counsel
appointed who provided them with legal counseling on May 6, 1999, “that he saw her in the Examining
Trial Court; that if she helped him, she did it as an accomplice to the tortures […] since where he was
held, there were only soldiers, unless she was dressed as a military officer; that the only statements he
admits are the ones rendered as expansion of the statement before the District Trial Court which he
rendered voluntarily, without threats or torture.”.” Moreover, Mr. Cabrera García indicated that he met
the defense counsel “at the Fifth District Trial Court and that he was tortured in the […] Battalion [...],
where he was dazed; they signed the documents without reading them (sic), since if she had been
there, she would have requested not to beat them; however, she did not do that since she was never
there and he never saw her.”.” Cf. Judgment of August 21, 2002 issued by the First Unitary Tribunal,
supra note 148, folio 15198.
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