82
x)
The Commission does not distinguish between “the incorporation of
the case records of what occurred before the trial in the civil court, from the
incorporation of these records as documents that could possibly be verified in
a criminal trial, with their possible incorporation as probative evidence”;
y)
The National Terrorism Chamber, which delivered judgment on June
20, 2001, “moved away from the position assumed in the charge concerning
how the evidence should be dealt with during the trial, and took great care to
differentiate the regime that should be applied to the procedures of the oral
proceeding, to the proceedings during the preliminary investigation by the
ordinary judge for criminal matters, and to all the other records prepared
before the judicial proceeding opened on August 28, 2000”;
z)
“[I]t is not […] the intervention of the police in the preliminary
procedures that should be questioned, according to the standard established
by the Court, but rather specific procedures that may have contained direct
and explicit violations of some of the rights recognized by the Convention”;
aa)
The police investigation report did not constitute an element of proof,
“because it lack[ed] the requirements of immediacy and contradiction that
distinguish an probative procedure from a mere procedure of investigation. It
is not even strictly a summary procedure.” From the proceedings of the civil
trial, it can be observed that the police investigation report was considered a
“piece of evidence”; and
bb)
“According to Peruvian legislation, the stage of the police investigation
is not considered part of the preliminary investigation. The police
investigation should not be confused with the pre-trial investigation which is
carried out by the jurisdictional organ.”
Considerations of the Court
132. In the case of the right to the judicial or procedural guarantees embodied in
Article 8 of the Convention, this Court has stated that, during the trial, it is necessary
for all the requirements to be fulfilled that “are designed to protect, to ensure or to
assert the entitlement to a right or the exercise thereof”;234 in other words, the
“prerequisites necessary to ensure the adequate protection of those persons whose
rights or obligations are pending a judicial decision.”235
133. The Court has established that “[i]n order to clarify whether the State has
violated its international obligations owing to the acts of its judicial organs, the Court
may have to examine the respective domestic proceedings,”236 to establish their
compatibility with the American Convention. In light of the above, the domestic
proceedings must be considered as a whole, including the rulings of the appellate
courts. The role of the international court is to establish whether the proceedings as
234
Cf. Case of Herrera Ulloa, supra note 4, para. 147; Case of Maritza Urrutia, supra note 4, para.
118; and Case of Myrna Mack Chang . Judgment of November 25, 2003. Serie C No. 101, para. 202.
235
Cf. Case of Herrera Ulloa, supra note 4, para. 147; Case of Maritza Urrutia, supra note 4, párr.
118; and Case of Myrna Mack Chang , supra note 234, para. 202.
236
Cf. Case of Herrera Ulloa, supra note 4, para. 146; Case of Myrna Mack Chang , supra note 234,
para. 200; and Case of Juan Humberto Sánchez, supra note 210, para. 120.
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