13 54. One of the fundamental rights is the right to count on adequate time and means for the preparation of the defense, enshrined in Article 8(2).c) of the Convention, which binds the State to allow the accused having access to the record of the case and to the evidence gathered against him39. Moreover, in the presence of both parties to an action, the State must guarantee the intervention of the accused in the analysis of the evidence. 55. If the State intends to limit this right, it must respect the principle of nullum crimen nulla poena sine lege praevia, arguing, in a well-founded way, which is the legitimate goal it intends to achieve and proving that the means to be used in order to achieve such goal is adequate, necessary and strictly proportional. Otherwise, the restriction of the right to defense of the individual will be contrary to the Convention. 56. In the instant case, the Court notes that, according to the law (supra paras.50 and 0) the investigative supporting documentation, while the investigation was being conducted, was always secret for the person being investigated who was not under arrest. In other words, the right to defense of the individual under investigation was always subordinated, being the characteristics of the particular case irrelevant for the law – and by authority of law, for the court. 57. Based on the foregoing, the Tribunal concludes that the State violated Article 8(2).c) of the Convention, in conjunction with Article 1(1) therein, to the detriment of Mr. Barreto Leiva. Likewise, considering that this violation was committed as a consequence of the application of Articles 60 of the Constitution and 73 of the CCP in force at the time of the events, the State also failed to comply with Article 2 of the Convention40. 4. right of the accused to be assisted by a counsel of his choosing (Article 8(2)(d)) 58. According to the Commission and the representative, Mr. Barreto could not be assisted by defense counsel while providing testimony during the investigation phase. 59. The State pointed out that in all the testimonies rendered by Mr. Barreto Leiva “a representative from the Office of the Public Prosecutor was always present”, whose role was "to defend the rights of the individual being investigated and the conduct of the proceeding", which, according to the State, "adversely affects the alleged violation of the right to defense". 60. As can be noticed, the fact that Mr. Barreto Leiva was not advised by a counsel when providing a testimony before the CSPA and the Substantiation Court of the SCJ is not at issue. The issue is whether the presence of the Public Prosecutor's Office during such statements makes up the role of the defense counsel. 39 40 Cf. Case of Palamara Iribarne V. Chile, supra note 22, para. 170. The fact that said domestic rule is not longer in force at the date this Judgment is delivered is not an impediment for the Tribunal to declare the violation of Article 2 of the Convention, inasmuch as such rule was applied in due time to the detriment of the victim of the instant case (Cf. Case of La Cantuta V. Perú. Merits, Reparations and Costs. Judgment of November 29, 2006. Series C Nº 237, para. 189).