75
k)
When requesting that all evidence for the prosecution and for the
defense be gathered as if commencing the investigation proceedings again,
“[t]he Commission seeks that rules which can only be applied to the trial
hearings and to the judgments be applied to the preliminary or investigation
stage, which only purpose is to prepare the indictment [.] This criticism would
be valid and reasonable if it were made regarding the trial and it were claimed
that during the trial the incriminating evidence was not processed again;” and
l)
The assessment of the evidence material is a matter of domestic
jurisdiction, that is, of the Peruvian Judicial Power, which is set forth in Article
283 of the Code of Criminal Procedure, an analysis of which shall have to be
consciously carried out.
Considerations of the Court
148.
Article 8 of the American Convention sets forth that:
1.
Every person has the right to a hearing, with due guarantees and within
a reasonable time, by a competent, independent, and impartial tribunal,
previously established by law, in the substantiation of any accusation of a
criminal nature made against him or for the determination of his rights and
obligations of a civil, labor, fiscal, or any other nature.
2.
Every person accused of a criminal offense has the right to be presumed
innocent so long as his guilt has not been proven according to law. During the
proceedings, every person is entitled, with full equality, to the following
minimum guarantees:
[…]
c)
adequate time and means for the preparation of his defense;
[…]
f)
the right of the defense to examine witnesses present in the
court and to obtain the appearance, as witnesses, of experts or other
persons who may throw light on the facts;
[…]
5.
Criminal proceedings shall be public, except insofar as may be necessary
to protect the interests of justice.
a) Regarding the alleged violations of Article 8 of the Convention to the detriment of
Wilson García-Asto
i) First proceedings instituted against Wilson García-Asto
149. The Court has considered proven the fact that Wilson García-Asto was tried by
“faceless” courts (supra paras. 97(27) and 98(28)), which made it impossible for him
to know the identity of the judge and, consequently, to assess his capacity, to know if
there were grounds for objection, and to exercise a proper defense before an
independent and unbiased court.152 Furthermore, his trial was not made public. In this
152
Cf. Case of Lori Berenson-Mejía. Judgment of November 25, 2004. Series C No. 119, para. 147;
Case of Cantoral-Benavides. Judgment of August 18, 2000. Series C No. 69, para. 127; and Case of CastilloPetruzzi et al. Judgment of May 30, 1999. Series C No. 52, para. 133.
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