8
2.
Prior notification in detail to the accused of the charges against
him (Article 8(2)(b)
26.
The Commission indicated that Mr. Barreto Leiva testified three times during
the investigation phase and before an arrest warrant was issued in his name and two
of the corresponding summons did not specify the status under which the Mr. Barreto
Leiva was required to appear. It mentioned that “by testifying, the victim was
already charged in the proceedings and therefore, he was entitled to the right to
receive prior and detailed notification of the charges against him”. The representative
agreed with the Commission.
27.
The State asserted that “before the arrest warrant, Mr. Barreto Leiva was
summoned to testify as witness about the investigation and later on, when his
participation was verified as a result of the inquiries, he was once again summoned
as suspect, according to the formalities prescribed by the Code of Criminal
Procedure”. The State explained that at that time “he [...] could not be notified of
charges that still did not exist against him".
28.
To comply with Article 8(2)(b) of the Convention, the State must notify the
accused not only of the charges against him, that is, the crimes or offenses he is
charged with, but also of the reasons for them, and the evidence for such charges
and the legal definition of the facts. The defendant has the right to know, through a
clear, detailed and precise description, all the information of the facts in order to fully
exercise his right to defense and prove to the judge his version of the facts. The
Court has considered that timely compliance with Article 8(2)(b) is essential for the
effective exercise of the right to defense.22
29.
Now then, the right to defense must be necessarily exercised as from the
moment a person is accused of being the perpetrator or participant of an illegal act
and ends when the jurisdiction thereby ceases,23 including, where applicable, the
enforcement phase. The opposite would imply to subordinate the conventional
guarantees that protect the right to defense, including Article 8(2)(b), to that the
person under investigation finds, at certain procedural allowing the possibility that,
previously, part of his rights be violated by acts of the authority that he disregards or
which he cannot control or effectively object to, which is evidently contrary to the
Convention. In fact, to prevent a person from exercising his right to defense from the
moment the investigation begins and the authority in charge orders or executes
actions entailing an infringement of rights is to magnify the investigative powers of
the State to the detriment of the fundamental rights of the person under
investigation. The right to defense binds the State to treat the person, at all times,
as a true party to the proceeding, in the broadest sense of this concept and not
simply as an object thereof.
30.
Based on the foregoing, Article 8(2).b) of the Convention applies even before
the “charges”, in a strict sense, are filed. For this right to fully operate and satisfy its
22
Cf. Case of López Álvarez V. Honduras. Merits, Reparations and Costs. Judgment of February 1,
2006. Series C No. 141, para. 149; Case of Palamara Iribarne v. Chile. Merits, Reparations and Costs.
Judgment of November 22, 2005. Series C Nº 135, para. 225; and Case of Acosta Calderónl V. Ecuador.
Merits, Reparations and Costs. Judgment of June 24, 2005. Series C No. 129, para. 118 and Case of Tibi
V. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 7, 2004.
Series C No. 114, para. 187.
23
Cf. mutatis mutandis Case of Suárez Rosero V. Ecuador, supra note 20, para. 71; Case of Bayarri
V. Argentina, supra note 20, para. 105; and Case of Heliodoro Portugal V. Panamá. Preliminary
Objections, Merits, Reparations and Costs. Judgment of August 12, 2008. Series C No. 186, para. 148.