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the Court will now examine as a whole the domestic court proceedings in the criminal
proceeding before the Trial Court for Criminal Matters and Correctional Affairs for
Minors of the Judicial Circumscription of Concepción, to establish whether said
proceedings were in accordance with the provisions of Article 8 of the Convention.
111.
Article 16 of the Paraguayan Constitution of 1992 establishes that
[d]efense of individuals and their rights in trials is inviolable. Every person has the right
to be tried by independent and impartial judges having jurisdiction.
112.
Likewise, Article 17 of said Constitution provides that:
In criminal proceedings, or in any other proceedings that may lead to penalty or
punishment, every person has the right:
[…]
5. to legally defend himself personally or through defense attorneys chosen by himself;
6. for the State to provide defense counsel at no cost, if he does not have the financial
means to pay for this;
7. to be informed previously and in a detailed manner of the charges, and to have
copies, means and the necessary time to prepare his defense, with free communication;
8. to offer, submit, control, and challenge evidence;
[…]
10. to have access, personally or through his defense attorney, to the court records,
which in no case may be secret for them. […]
113. Article 11 of the 1890 Criminal Procedures Code, applied in this case,
provided that
[d]efense of the person on trial and of the rights of the accused is inviolable. The
accused may defend themselves personally or by means or trustworthy persons
appointed by them. Failing that, the Judge will appoint defense counsel for them.
114. Despite the aforementioned provisions, the members of the Yakye Axa
Community were represented by a defense counsel two years and six months after
the proceeding began.
115. As has been shown, the criminal proceeding against unnamed members of the
Yakye Axa Community began on March 16, 1999 with the complaint filed by the legal
representative of Livestock Capital Group Inc (supra para. 50.79). On March 22,
1999 the Judge opened the preliminary proceedings. On May 3, 1999 the leaders of
the Community, recognized as such by the INDI, appointed an attorney to represent
them in said criminal proceeding, which was initially accepted by the Judge hearing
the case. However, in view of the opposition of the plaintiff, the Judged revoked his
previous decision and did not authorize photocopies for the attorney representing the
Community (supra para. 50.81). On September 5 and 11, 2000 the attorney for the
Community once again asked to intervene in the criminal proceeding and requested
photocopies of the court records up to that date. On September of that year, the
Judge ruled that the request to intervene was “out of order”. On September 15, 2000
the attorney for the Community filed an appeal against the ruling that rejected his
participation, and this appeal was turned down by the Judge on September 18, 2000
(supra para. 50.86).
116. During said criminal proceeding several steps were taken to gather evidence,
including statements by witnesses, collecting data on the members of the
Community, inspections at the place where the facts took place (supra paras. 50.80,
50.82 and 50.83). Provisional measures were also granted in favor of the plaintiff,
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