12
of instance in this extreme and imposed a sanction that is found within the legal margins
established by the definition of the [particular] crime.”
29.
Also, the State indicated that in the second process “the [new charge] was [for]
affiliation.” In this way, in agreement with the State, “the facts are clear, they have not
changed […] and from the Judgment itself of the Court […] it has decided that the
accusation […] is for the crime of collaboration to terrorism” because on the contrary
“[the order of the Court would not be justified to] have a new trial.” In this sense, the
State highlighted that “the extension of the criminal definition of the crime accused is
not based on new facts, but on the same facts that were the object of the initial
accusation, which were the object of the evidentiary activity developed in the oral trial
with the guarantees of contradiction, right for the judge to hear the evidence, and
publicity.”
30.
For its part, the representative indicated that in the second process, facts that
occurred “before the entrance into force” of Decree Law 25475 were imputed to Mrs. De
La Cruz. In this manner, “the State [had] applied a norm whose application that Court
had already considered to be a violation of the principle of protection from ex post facto
laws.” On the other hand, it alleged that “[i]n the judgment of November 23, 2009, the
charges that were raised” against Mrs. De La Cruz “were not signaled” “after the date of
the entry into force of the D[ecree] [L]aw 25475” and that neither “the judgment of the
Court nor of the Supreme Court of the State [had] signaled which facts corresponded to
which charges, and which facts referred to the Decree Law 25475, especially when there
had been an order of the […] Court to eliminate any retroactive application in the second
process.” In this way, “[t]he State has not complied with establishing the relationship
between the facts imputed to Mrs. De La Cruz and the respective norms and penalties
applicable.”
31.
In the same line, the representative pointed out that “[t]he State has not given
valid legal basis to increase the sanction” that was applied by the Trial Chamber and that
it has only “limited to justify the reduction of the conviction as a prize benefit in case of
a “sincere confession” as a mitigating circumstance.” In this sense, she précised that
“she considers that the right of the State of reducing the conviction due to a benefit,
does not authorize it per se to increase the punishment established by the Trial Chamber
without the corresponding motivation.” In this context, “the fact that the accused faces
the possibility that his silence or denial of the charges attributed to him can be used to
increase his conviction constitutes a coaction to his right to declare himself innocent,
deny the fact, or to remain silent.”
32.
The representative added that “[t]he State has referred [to] norms that describe
the crime of collaboration with terrorism,” despite having sustained that the new
conviction “derives from the crime of affiliation.” The foregoing would imply a conviction
for “acts of collaboration with terrorism [that] would be contrary to the [J]udgment of
[the] Court in the case.”
33.
The Commission stressed that “it is not true that the alleged membership to
Sendero Luminoso had been imputed to Mrs. De La Cruz Flores from 1989 to 1993[,
given that a]s it results from the clear Reading of the Annexes submitted by the State,
[…] that term referred to the charge of membership or affiliation to a terrorist
organization to a plurality of persons, among which the victim is mentioned.” In any
case, “[t]he greatest precision is observed in some of the extents of the [testimony]
declarations that indicate that in certain months Mrs. De La Cruz Flores had a certain
character within Sendero Luminoso. Nevertheless, the factual grounds of such
affirmations, this is, the medical acts imputed to her, were described in a general