5
Second, it is impossible to make this distinction in this case, given the way
in which a criminal judgment is structured in Peru, which does not indicate
specifically the evidence used to conclude which facts have been proved and
which have not.
XXV. Consequently, I consider that the State violated Article 8(2) of the American
Convention by allowing evidence to be introduced into the trial before the
civil court that was not valid, because it did not comply with even the
minimum requirements of this provision; and that it should be declared that,
since the second trial against Ms. Berenson was tainted by a substantial
defect concerning due process of law, the judgment is not valid and there is
no justification for Ms. Berenson’s imprisonment. The reparation should
have been Ms. Berenson’s liberation.
XXVI. Another point relating to Article 8 of the Convention is the existence
in Decree Law No. 25,475 of article 13(c), which prevented the
police agents who had issued the police investigation report being
called on to testify. This provision directly violates the provision in
Article 8(f) of the Convention. During the hearing on arguments, the
State’s representative indicated that “in his opinion,” this was not
applicable in practice. It is possible to suppose that in the trial in the
civil court, Ms. Berenson’s defense lawyers could have called on
those agents and that this petition would have been admitted by the
National Chamber. Indeed, the Prosecutor called on some of those
agents, as is clear from paragraph 88(51) of this judgment; and we
can suppose that, if the Prosecutor could make this petition, the
defense lawyers could also have done so. But, it is also possible
that the defense lawyers might have considered that, since they did
not have the right to call on these agents to testify according to the
provisions of article 13, there was no point in making the request.
There is nothing in the case that allows us to reach one or other
conclusion, so that I cannot agree with paragraph 187 of this
judgment.
XXVII.
Without detriment to this, and even supposing that not calling on
those agents to testify was due to an omission on the part of the
defense lawyers, I consider that the Court should have ruled in the
sense that the applicable norm in this case was incompatible with
Article 8(f) of the American Convention.
REGARDING REPARATIONS
XXVIII. Since the Court has decided that due process of law was not
violated in the trial against Ms. Berenson in the civil court, the
reparations it orders are only related to the proceedings before the
military court and the conditions for part of the period during which
she was detained. On this basis, I do not disagree with the
reparations ordered by the Court, but I consider that they are
insufficient.
XXIX. Ms. Berenson was detained on November 30, 1995, and, as of that
time, a proceeding that violated Article 8 of the American
Convention commenced, culminating in life imprisonment.
The
proceeding was only reverted on August 18, 2000, when the
Supreme Council of Military Justice annulled the judgment and Lori
Berenson’s conviction, and waived the competence of the military
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