76
regard, the Court notes that every defendant has the right to have a public trial.153
150. In this case, the Court remarks that the judgment of January 15, 2003
rendered by the Third Criminal Chamber of the Superior Court of Lima (Tercera Sala
Penal de la Corte Superior de Justicia de Lima) acknowledged that the proceedings
brought against Wilson García-Asto violated fundamental principles such as that of due
process; the right to be heard by a competent, independent, and impartial judge; the
right to know if the judge was competent; and the right not to be tried by “faceless”
judges, and it further declared the first criminal proceeding instituted against him in
the ordinary courts for the crime of terrorism against the State to be null (supra para.
97(31)).
151. By virtue of the foregoing, and taking the partial acknowledgment of the facts
by the State into account (supra paras. 52 to 60), the Court considers that during the
first criminal proceeding instituted against Wilson García-Asto, the State violated the
right to a due process of law, to be tried by a competent, independent and impartial
judge, and the right to the publicity of the criminal proceedings, according to Articles
8(1), 8(2) and 8(5) of the Convention, in relation to Article 1(1) thereof.
*
152. The Court has previously remarked that among the prerogatives which must be
granted to those who have been accused is the right to examine witnesses against and
for them, under the same conditions and with the purpose of exercising their
defense.154
153. In the instant case, Article 13(c) of Decree-Law No. 25.475 set forth that “those
who by virtue of their official duties participated in the elaboration of the Police Report
shall not be proposed as witnesses [d]uring the [i]nvestigation and at the [t]rial.” By
virtue of the foregoing, Wilson García-Asto could not examine the police officers who
participated in the elaboration of the police reports which were used as grounds for the
charges brought against him.
154. The Court considers, as it has done before, and taking into account the
acknowledgement of the facts prior to September 2000 by the State, that Article 13(c)
of Decree-Law No. 25.475 applied to the instant case, prevented the exercise of the
right to examine the witnesses whose testimonies supported the charges against the
alleged victim.155 In view of the foregoing, the State has violated Article 8(2)(f) of the
Convention, in relation to Article 1(1) thereof, to the detriment of Wilson García-Asto.
*
153
Cf. Case of Lori Berenson-Mejía, supra note 152, para. 198; Case of Cantoral-Benavides, supra note
152, paras. 146 and 147; and Case of Castillo-Petruzzi et al, supra note 152, para. 172.
154
Cf. Case of Lori Berenson-Mejía, supra note 152, para. 184; and Case of Castillo-Petruzzi et al,
supra note 152, para. 154.
155
Cf. Case of Lori Berenson-Mejía, supra note 152, para. 183; and Case of Castillo-Petruzzi et al,
supra note 152, para. 153.
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