because, under Venezuelan law, the condition of being one of the accused does not
constitute a legal impediment to testifying.” 90
90.
Second, the representatives argued that they “were unable to be present during the
testimony of any of the witnesses, and could only cross-examine a few of them”; in
particular, they argued that they were unable to be present during the examination of
Patricia Polea, and the prosecutor had refused this verbally on the day the interview was
held. 91 On this point, the case law established in the case of Barreto Leyva is relevant in the
sense that, of necessity, it must be possible to exercise the right of defense as soon as a
person is implicated as a possible author of, or participant in, a wrongful act and this right
only ceases when the proceedings – including, if appropriate, the stage of execution of
judgment – have concluded. To maintain the contrary, would entail making the guarantees
under the Convention that protect the right to defend oneself dependent on the proceedings
being at a specific stage, leaving open the possibility that, prior to this, the rights of the
person under investigation could be impaired by actions of the authorities that he is
unaware of or which he cannot control or oppose effectively, which is evidently contrary to
the American Convention. Preventing a persons from exercising his right of defense as of
the start of the investigation against him, and if the authorities order or execute actions that
entail an impairment of his rights, signifies empowering the investigative authority of the
State to the detriment of fundamental rights of the person investigated. The right of
defense obliges the State to treat the individual, at all times, as a true subject of the
proceedings, in the broadest sense of this concept, and not simply as an object of them. 92
91.
From all the preceding considerations, we again reach the conclusion that the InterAmerican Court should have delayed the examination of the preliminary objection of failure
to exhaust domestic remedies, until the examination of the merits of the case, because the
dispute evidently encompasses aspects of both admissibility and merits in relation to the
judicial guarantees established in Article 8 of the American Convention, specifically with
regard to the right to an independent and impartial judge or court (Art. 8(1) ACHR), the
right to an adequate defense (Art. 8(2)(c) ACHR) and the right to cross-examine witnesses
and to obtain the appearance of persons who may throw light on the facts (8(2)(f) ACHR).
And the contrived argument of the “early stage” of the proceedings — that appears in the
Judgment – should not have been used to avoid examining the merits of the case.
2.2.c
There has been unwarranted delay in rendering a final judgment under the
aforementioned remedies (Art. 46(2)(c) of the American Convention)
92.
In order to determine the admissibility of this exception to the exhaustion of
domestic remedies, the Judgment analyzed the dispute between the parties concerning: (i)
the time frame and the procedural stage established in domestic law for deciding requests
for annulment, and (ii) the need for the presence of the accused at the preliminary hearing
and the reasons why the hearing was delayed.
93.
Our dissenting position stems, precisely from the reasoning that disputes such as:
whether or not the request for annulment could be decided without Mr. Brewer’s presence
90
Folio 161 (tome I) of the merits file.
91
This refusal was based on article 306 of the Organic Code of Criminal Procedure which stipulated that:
“The Public Prosecution Service may allow the accused, the victims or their representatives to be present during
the measures taken [in the preliminary stage], when their presence would be useful to clarify the facts and would
not prejudice the success of the investigation or prevent prompt and regular proceedings.”
92
Case of Case of Barreto Leiva v. Venezuela. Merits, reparations and costs. Judgment of November 17,
2009. Series C No. 206, para. 30.
23
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos