9
inherent aims, it is necessary for said notification to take place before the accused
renders his first statement24 before any public authority.
31.
Clearly, the content of the notice shall vary according to the progress of the
investigation, reaching the highest point, established in paragraph 27 supra, with the
formal and definitive filing of the charges. Before that and as a minimum
requirement, the person under investigation must learn about, in as much detail as
possible, the charges against him.
32.
In the instant case, the issue at stake is the capacity of Mr. Barreto Leiva by
the time he rendered the three statements before the judicial authorities before
being subjected to pre-trial detention. The Commission and the representative
asserted that he was the person being investigated, while the State indicated that he
was a witness. However, the assertions of the State would seem to be limited to
when Mr. Barreto Leiva rendered a statement before the Congress of the Republic,
since it expressly accepts that the alleged victim was a “defendant” before the Court
for Safeguarding Public Assets (hereinafter, the “CSPA”).25
33.
From the evidence furnished, it spring that on January 26, 1993, Mr. Barreto
Leiva rendered a statement before the Permanent Commission of the Comptroller of
the Chamber of Deputies of the Congress of the Republic.26 The cross-examination of
the deputies aimed at obtaining information on the irregularities in the handling of
public funds (supra para. 21). Regarding this statement, the Commission and the
representative did not indicate that the alleged victim had appeared in a capacity
different from that of witness; therefore, the Court shall not analyze this aspect.
34.
Afterwards, on February 4, 1993 the CSPA agreed to receive the "informative
testimony" of Mr. Barreto Leiva,27 and on that same date, a summons was issued to
such effect.28 Said summons did not specify the status under which the alleged
victim was required to appear.
35.
On February 10, 1993, Mr. Barreto Leiva rendered a statement before the
CSPA. He testified without being sworn in and after being advised of the
constitutional guarantee against providing testimony that may incriminate himself or
his relatives. There is no evidence proving that he was informed of the capacity of
witness or defendant under which he was supposed to appear29.
24
Cf. Case of Tibi V. Ecuador, supra note 22, para. 187; Case of Palamara Iribarne V. Chile, supra
note 22, para. 225, and Case of Acosta Calderón V. Ecuador, supra note 22, para. 118.
25
The State’s brief containing final arguments literally indicates: “The rights of Mr. Barreto Leiva as
a witness were fully respected, then as a defendant and later on, as an accused. As a witness, when he
declared before the Commission of the Comptroller of the National Congress; as a defendant, when he
was summoned to declare before the Superior Court for Safeguarding Public Assets and later on, as an
accused when he declared before the Substantiation Court of the Supreme Court of Justice".
26
Cf. transcription of the statement of Mr. Barreto Leiva rendered before the Permanent
Commission of the Comptroller of the Chamber of Deputies of the Congress of the Republic of January 26,
1993 (record of appendices to the final written arguments of the State, appendix 14, pages 5181 to
5234).
27
Cf. court order of the CSPA of February 4, 1993 (record of appendices to the final written
arguments of the State, appendix 5, page 4847).
28
Cf. summons issued by the CSPA for Mr. Barreto Leiva on February 4, 1993 (record of appendices
to the final written arguments of the State, appendix 5, page 4849).
29
Cf. statement of Mr. Barreto Leiva before the CSPA of February 10, 1993 (record of appendices to
the application, volume I, appendix 5, page 239).