6
also noted that the appellants must list the reasons why the cassation claim they filed previously proved
to be a limited or inadequate procedural mechanism, specifically stating the wrong they have endured.
It underscored that said wrong must involve a minimum of substance, such as, he or she was prevented
from arguing on an important or decisive issue, essential evidence was suppressed, he or she was
arbitrarily prohibited from taking part or that his or her right to defense was infringed. Moreover, it
noted that it is not admissible to argue in abstractum with regard to the violation of the right enshrined
in Article 8.2.h of the American Convention. It also noted that simply citing the article number of the
Convention or failing to explain the actual wrong endured by the appellant “renders such an allegation
(…) a mere exercise of formality, without any content at all.”
27.
Lastly, the State argued that the claim may only be filed one time within the six-month
period from the time the law came into force. It contended that the motion for review of conviction can
only be filed one time, inasmuch as “that opportunity may not be used indiscriminately [because] it
would lead to the collapse of the Costa Rican criminal justice system.” It noted that the judges in a
cassation proceeding or a motion for review of conviction are required to recuse themselves if they are
hearing the matter for a second time, in the event that a new appeal has been filed. The State further
noted that, should a due process violation be proven, it could have a legal consequence, such as sending
the case back to the trial court, which would be processed under the ordinary criminal procedure in
force, under which appeals are regulated as a procedural mechanism to contest the judgment or, as the
case may be, for the State to obtain civil reparation.
28.
The State argued that Law No. 8837 was examined by the Inter-American Court in its
compliance supervision decision on the judgment in the case of Herrera Ulloa v. Costa Rica of November
22, 2010. It contended that since the case was archived by the Court, it is understood that Costa Rica
does have a mechanism in place capable of effectiveness and efficiency in the future, as well as with
regard to cases that have been heard and disposed of prior to the time the law came into force. The
State alleged that said statute is the “legal instrument whereby, in short, it was successful at bringing
the Costa Rican legal system into line with the provisions of Article 8.2.h of the American Convention (…)
inasmuch as this regulation provides for the effective and efficient protection of the right to appeal a
judgment before a higher judge or court than the one who issued it.”
29.
With regard to the claim of some of the alleged victims of failure to provide adequate
legal assistance by a public defender, the State countered that the public defense enjoys absolute
independence in its professional technical function.
30.
The State contended that there is a unit made up of thirteen public defenders and a
coordinating defender in charge of advising persons deprived of liberty during the execution of their
sentences. The State noted that said advisory function consists of filing of motions before the sentence
execution oversight judge, as well as motions for review of conviction. For this purpose, it underscored
that the unit conducts visits to prison facilities. It reports that when Law No. 8837 came into force, a
new unit was created for the appeal of convictions, which was up and running by January 2012. The
State noted that, when an individual files an appeal on his or her own behalf, under Article 409 of the
Code of Criminal Procedure, the public defender’s office must appoint an attorney to advise and
represent the interests of the person deprived of liberty. It pointed out that the public defender’s office
does not act on its own initiative (ex officio) and, therefore, the person serving the sentence is required
to make the respective request for this service to be provided to him or her.