186. The Court finds no reason to deviate from its consistent criterion in this case, and therefore
considers that the prosecution of Ms. J. by a “faceless” prosecutor and judges during the first stage
of the proceedings against her constituted a violation of the right to be tried by a competent,
independent and impartial court established in Article 8(1) of the Convention.
187. The Court also repeats that, pursuant to Article 2 of the American Convention, States must
eliminate norms and practices of any kind that entail a violation of the guarantees established in the
Convention, and also adopt norms and practices leading to the effective observance of the said
guarantees (supra para. 164). In particular, this means that the State has the obligation to take
any necessary measures to adapt its laws in order to ensure hearings by a competent, independent
and impartial court as of the date on which it ratified the Convention.
188. Even though the Court appreciates the efforts made by the Peruvian State since 1997 (supra
para. 74), it notes that the violations of due process verified above occurred before the State had
carried out the said legislative reform, so that the Court concludes that, in this case, the State failed
to comply with the obligations imposed by Article 2 of the American Convention to adopt such
legislative or other measures as may be necessary to guarantee the right to be tried by a competent,
independent and impartial court.
189. Based on the foregoing considerations, the Court concludes that the State violated Article
8(1) of the American Convention, in relation to Articles 1(1) and 2 of this instrument, to the
detriment of Ms. J.
B.1.2) Right to defend oneself
i. Arguments of the Commission and of the parties
190. The Commission argued that Ms. J. was not notified of the charges against her at the start of
the investigation, and her detention “took place following an investigation that the DINCOTE was
conducting previously.” In addition, it indicated that there is no record in the case file that, before
giving her police statement, she had been informed of the charges against her. The Commission
also argued that during the 15 months that Ms. J. was detained, “she was only able to talk to her
lawyer on three occasions, for approximately 15 to 25 minutes.” Furthermore, the Commission
underscored that the prohibition to offer as witnesses those who intervened “owing to their
functions” in the elaboration of the police attestation, as well as the prohibition for the authorities
responsible for the case ruling on any procedural issue, objection or norm before the judgment
constituted additional violations of her right to defend herself, and the latter also of the principle of
the presumption of innocence. Lastly, the Commission argued that the threats made against Ms. J.
during the 17 days that she was in the DINCOTE, to the effect that “if she collaborated this would
reduce her sister’s suffering,” “are contrary to the guarantee of not being compelled to testify
against oneself.”
191. The representative argued that “[t]he only reason for the detention of J.’s sister was to use
psychological torture on J. to make her confess,” which, according to the representative “was a
usual practice of the DINCOTE.” She also affirmed that J. “[d]id not have the right to consult her
lawyer in private during her time in the DINCOTE or before her statement to the police or to the
judiciary. In the DINCOTE repeated attempts were made to interrogate her without the presence of
lawyer or prosecutor.”
192. Meanwhile, the State argued that Ms. J. “had access to and was assisted by her lawyers, […]
who were present during the main stages of the proceedings and when she provided a statement or
was subject to questioning.” In addition, Peru stressed that the petitioner was notified of her
detention as well as of the main investigative activities in relation to the criminal proceedings in
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