94
196.
According to the decisions in this judgment with regard to Article 8(1) of the
Convention (supra paras. 151 to 156), in relation to the conduct of the State
authorities during the civil proceeding as a whole, the Court considers that it has not
been proved that the State violated Article 8(2)(h) of the Convention to the
detriment of the alleged victim in the trial against her in the ordinary jurisdiction.
*
*
*
Public proceeding
197.
Article 8(5) of the Convention establishes that:
Criminal proceedings shall be public, except insofar as may be necessary to protect the
interests of justice.
a)
Criminal proceeding in the military jurisdiction
198. The Court considers that it has been proved that military trials of civilians who
had allegedly committed crimes of treason were held with “faceless” judges and
prosecutors, and were subject to restrictions which meant that they violated due
process. Such restrictions included the fact that these trials were held on military
premises, to which the public did not have access. The trial proceedings, including
the hearing on merits, were held in these circumstances of secrecy and isolation.
Evidently the right to the public nature of the proceeding embodied in the
Convention was not respected.265
199. In view of the above, the Court considers that the State violated Article 8(5)
of the Convention to the detriment of Lori Berenson, in relation to Article 1(1)
thereof, in the criminal proceeding in the military jurisdiction.
b)
Criminal proceeding in the ordinary jurisdiction
200. Proceedings in the ordinary jurisdiction were held before identifiable judges,
on premises to which the public had access. The hearings of the oral proceeding
were publicized through the media. Hence, in the ordinary jurisdiction, the right to
the public nature of the proceeding embodied in Article 8(5) of the Convention was
respected.
Non bis in idem
201. With regard to the arguments of the representatives of the alleged victim
concerning the violation, to the detriment of Lori Berenson, of the judicial guarantee
that prohibits a person being tried twice for the same facts, the Court observes that
the principle non bis in idem is included in Article 8(4) of the Convention as follows:
4.
An accused person acquitted by a non-appealable judgment shall not be
subjected to a new trial for the same cause.
265
Cf. Case of Cantoral Benavides, supra note 25, paras. 146 and 147; and Case of Castillo Petruzzi
et al., supra note 25, para. 172.
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