5
specifically the evidence used to conclude which facts have been proved and
which have not.
XXV. Consequently, I consider that the State violated Article 8(2) of the American
Convention by allowing evidence to be introduced into the trial before the
civil court that was not valid, because it did not comply with even the
minimum requirements of this provision; and that it should be declared that,
since the second trial against Ms. Berenson was tainted by a substantial
defect concerning due process of law, the judgment is not valid and there is
no justification for Ms. Berenson’s imprisonment. The reparation should
have been Ms. Berenson’s liberation.
XXVI. Another point relating to Article 8 of the Convention is the existence in
Decree Law No. 25,475 of article 13(c), which prevented the police agents
who had issued the police investigation report being called on to testify. This
provision directly violates the provision in Article 8(f) of the Convention.
During the hearing on arguments, the State’s representative indicated that
“in his opinion,” this was not applicable in practice. It is possible to suppose
that in the trial in the civil court, Ms. Berenson’s defense lawyers could have
called on those agents and that this petition would have been admitted by
the National Chamber. Indeed, the Prosecutor called on some of those
agents, as is clear from paragraph 88(51) of this judgment; and we can
suppose that, if the Prosecutor could make this petition, the defense lawyers
could also have done so. But, it is also possible that the defense lawyers
might have considered that, since they did not have the right to call on
these agents to testify according to the provisions of article 13, there was
no point in making the request. There is nothing in the case that allows us
to reach one or other conclusion, so that I cannot agree with paragraph 187
of this judgment.
XXVII. Without detriment to this, and even supposing that not calling on those
agents to testify was due to an omission on the part of the defense lawyers,
I consider that the Court should have ruled in the sense that the applicable
norm in this case was incompatible with Article 8(f) of the American
Convention.
REGARDING REPARATIONS
XXVIII.
Since the Court has decided that due process of law was not violated in
the trial against Ms. Berenson in the civil court, the reparations it orders are
only related to the proceedings before the military court and the conditions
for part of the period during which she was detained. On this basis, I do not
disagree with the reparations ordered by the Court, but I consider that they
are insufficient.
XXIX. Ms. Berenson was detained on November 30, 1995, and, as of that time, a
proceeding that violated Article 8 of the American Convention commenced,
culminating in life imprisonment. The proceeding was only reverted on
August 18, 2000, when the Supreme Council of Military Justice annulled the
judgment and Lori Berenson’s conviction, and waived the competence of the
military jurisdiction in favor of the ordinary criminal jurisdiction. For almost
five years, she was at the mercy of an authority that did not respect its
international human rights obligations and this should be repaired.
Moreover, for two years, eight months and twenty days, Ms. Berenson was
subjected to detention conditions described in Chapter VIII of this judgment
as cruel, inhuman and degrading treatment. Suffering cruel, inhuman and