attestation by means of the right to challenge evidence that may be biased (derecho de tacha)
which may eventually be used against it. 569
405. The State also indicated that, “in the practice, police officials are summoned to hearings and
attend them, and this provides guarantees for the right of the persons accused of the crime of
terrorism to be able to defend themselves. In this regard, it can be affirmed that the prohibition
contained in the legal norm has been overcome in the practice.” The State mentioned several cases
in which the police who had taken part in the elaboration of the police attestation had appeared to
testify. Similarly, the deponent for information purposes, Federico Javier Llaque Moya, indicated in
this regard that:
Those who intervened in the attestation have appeared as witnesses in numerous proceedings; their
testimony is assessed during the judicial investigation stage by the criminal judge and then subjected to
cross-examination in the trial by the Criminal Chamber. To date, this practice has been used so as not to
obstruct the right of defense of the person who considers the appearance of such witnesses necessary. 570
406. The case file before the Court also contains a decision of the National Criminal Chamber in
which police agents appeared who had taken part, for example, in the operations of the search and
the arrest of the accused. 571
407. This Court recalls that it has established that not only the elimination or enactment of norms
under domestic law guarantees the rights contained in the American Convention, pursuant to the
obligation contained in Article 2 of this instrument. In addition, the implementation of State
practices resulting in the effective observance of the rights and freedoms recognized therein is also
required. Consequently, the existence of a norm does not, in itself, guarantee that its application is
appropriate. The application of the norms or their interpretation as jurisdictional practices and an
expression of the legal order must be adapted to the objective sought by Article 2 of the
Convention. In other words, the Court underscores that judges and organs for the administration of
justice at all levels are obliged to exercise ex officio “control of the conformity” of domestic norms
with the American Convention; evidently, within the framework of their respective competences and
the corresponding procedural regulations. In this task, they must take into account not only the
international treaty concerned, but also how it has been interpreted by the Inter-American Court,
ultimate interpreter of the American Convention. 572
408. Based on the above, the Court considers that it is not necessary to order the reform of
Article 13(c) of Decree-Law No. 25,475, in the understanding that, according to the information
provided to the case file, judicial practice has allowed the questioning of officials who took part in
the elaboration of the police attestation in specific cases.
D) Obligation to respect the guarantees of due process in the criminal proceedings
opened against Ms. J.
409. The Commission asked the Court to order the State “[t]o annul any expression of the State’s
punitive powers against J., in which the procedural defects persist that were evident in the trial held
in 1992 and 1993 and that gave rise to the violations of the American Convention. Specifically, the
569
Cf. Judgment of the Constitutional Court of January 3, 2003, File No. 010-2002-AI/TCLIMA, conclusions 147 to 159
(merits report, folios 1573 to 1577).
570
Testimony of Federico Javier Llaque Moya during the public hearing held in this case.
571
Cf. Judgment of the National Criminal Chamber of May 25, 2006 (file of annexes to the answering brief, annex 61,
folios 4166 to 4168).
572
Cf. Case of Almonacid Arellano et al. v. Chile, supra, para. 124, and Case of Castañeda Gutman v. Mexico.
Monitoring compliance with judgment. Order of the Court of August 28, 2013, considering paragraph 23.
119
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