43
arms and ski masks “for the purpose of intimidating the defense lawyer, who
was taken to the military facilities blindfolded;”
b)
the State violated Article 8(2)d) of the Convention in that it made it
difficult for Mr. Cantoral-Benavides to select a lawyer of his choosing by
assigning lawyers to his case; and
c)
Articles 13.c) and 2.b) of Decree Laws No. 25.475 and No. 25.744,
respectively, state that those involved in the preparation of the police
affidavit, and the members of the armed forces that captured the accused,
may not appear as witnesses before the court hearing the case.
Consequently, the members of the DINCOTE that drew up the police affidavit
that incriminated Luis Alberto Cantoral-Benavides did not make statements
during the criminal proceedings.
124.
For its part, the State alleged that:
a)
Mr. Cantoral-Benavides, throughout his detention and during the trials
in the military and regular courts, was assisted by lawyers, and that “the right
to a defense was respected at all times, there being no statement or
certification to the contrary, nor complaint or denunciation regarding the
quality of the defense provided;” and
b)
as regards the impossibility of summoning as witnesses police officials
or members of the armed forces who prepared the police affidavit or
participated in the capture or detention, this is forbidden by law and does not
constitute a violation of Article 8.f) of the Convention.
*
*
*
125. Article 8(2) of the Convention states, as pertains, that:
Every person accused of a criminal offense has the right to be presumed innocent so
long as his guilt has not been proven according to law. During the proceedings, every
person is entitled, with full equality, to the following minimum guarantees:
[…]
c.
adequate time and means for the preparation of his defense;
d.
the right of the accused to defend himself personally or to be assisted
by legal counsel of his own choosing, and to communicate freely and privately
with his counsel;
[…]
f.
the right of the defense to examine witnesses present in the court and
to obtain the appearance, as witnesses, of experts or other persons who may
throw light on the facts;
126. The Court refers to the decision in this same judgment (supra para. 115)
regarding the violation of Articles 8(1) and 8(2)c), d) and f) of the Convention, as
they pertain to the criminal military trial of Luis Alberto Cantoral-Benavides.
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