25
exercised by a legal professional whose role is to counsel the defendant on his rights and
obligations and to execute, inter alia, a critical and legal control of the production of evidence.90
98.
That said, based on the arguments presented by the Commission and the
representatives, the Court will focus its analysis on the alleged violation of the right to an
adequate technical defense, which could result in other violations of the minimum guarantees
of due process pursuant to Article 8 of the American Convention. For this analysis, the Court
will first refer to the absence of a technical defense during several procedures and to the
designation of law students as defense counsel and, finally, to other guarantees of the right
of defense.
B.1. The absence of a technical defense for the defendants
99.
The Court has indicated that the right of defense means that this must be effective,
opportune, and conducted by qualified professionals so that it safeguards the specific interests
of the defendant and is not merely a means to comply with a formality in order to legitimize
the proceedings. Consequently, any form of “apparent” defense would violate the American
Convention. Thus, “[t]he bond of trust must be protected in every way possible within the
public defense systems and [therefore] expeditious and prompt mechanisms must exist so
that the defendant may request that the standard of his defense be evaluated. Moreover, no
public defender may subordinate the interests of his client to other social or institutional
interests or to the preservation of ‘justice.’”91
100. Public defense corresponds to a State function or public service; however, it is a
function that must enjoy the necessary autonomy for the satisfactory exercise of its role of
providing counsel based on the best professional judgment and the interests of the accused.
The Court considers that the State cannot be deemed responsible for all the flaws in the public
defense, taking into account the independence of the profession and the professional judgment
of the defense counsel. Thus, the Court considers that, as part of the State’s duty to ensure a
satisfactory public defense, it is necessary to put in place adequate procedures for the selection
of public defenders, develop oversight mechanisms for their work, and provide them with
regular training sessions.92
101. The Court has considered that appointing a public defender merely in order to comply
with a procedural formality would amount to the absence of a technical defense. Consequently,
public defenders must act diligently in order to protect the procedural guarantees of the
accused and thus avoid the violation of his rights93 and the rupture of the bond of trust. To
this end, the public defense institution – as the means by which the State ensures the essential
right of everyone accused of a crime to be assisted by a defense lawyer – must be provided
with sufficient guarantees to enable it to act effectively and on an equal footing with the
prosecution. The Court has recognized that, to comply with this duty, the State must take all
Cf. Case of Barreto Leiva v. Venezuela, Merits, reparations and costs. Judgment of November 17, 2009.
Series C No. 206, para. 61, and Case of Argüelles et al. v. Argentina, Preliminary objections, merits, reparations and
costs. Judgment of November 20, 2014. Series C No. 288, para. 177.
91
Cf. Case of Ruano Torres et al. v. El Salvador, Merits, reparations and costs. Judgment of October 5, 2015.
Series C No. 303, para. 158, and Case of Martínez Coronado v. Guatemala, supra, para. 84.
92
Cf. Case of Ruano Torres et al. v. El Salvador, supra, para. 163.
93
Cf. Case of Cabrera García and Montiel Flores v. Mexico, Preliminary objection, merits, reparations and costs.
Judgment of November 26, 2010. Series C No. 220, para. 155, and Case of Martínez Coronado v. Guatemala, supra,
para. 83.
90