117. In this case, the Commission deems that it has been established that Mr. Montesinos was detained on June 21, 1992. The case file does not reveal that Mr. Montesinos had the opportunity to have a defense attorney at the initial proceedings following his arrest, including during his preliminary statement made on June 25, 1992. As noted previously, this statement was obtained under duress and was used in the Operación Ciclón police report, which was considered by the courts called upon to rule on Mr. Montesinos’ responsibility. The case file furthermore shows that Mr. Montesinos did not have the opportunity to have a defense attorney present during subsequent statements made to police and prosecutors. 118. Having proven that Mr. Montesinos did not have an defense attorney present during the preliminary statement or during subsequent statements when he was already a crime suspect, the Commission deems that the State of Ecuador violated his right to a defense provided for under 8(2)(d) of the American Convention, in connection with to Article 1(1) thereof. 3. The principle of presumption of innocence 119. The Inter-American Court has asserted that the principle of the presumption of innocence implies that the defendant does not have to prove that he has not committed the offense of which he is accused, because the onus probandi rests with the prosecutor.121 Thus, the convincing demonstration of guilt is an essential requirement for a criminal sanction, so that the burden of proof falls on the prosecutor and not on the accused.122 In this regard, the Human Rights Committee has held that: The presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle. It is a duty for all public authorities to refrain from prejudging the outcome of a trial, e.g. by abstaining from making public statements affirming the guilt of the accused.123 120. For its part, the Inter-American Commission has stated: In this context, another elementary concept of criminal procedural law, the objective of which is to preserve the principle of innocence, is the burden of proof. In criminal proceedings, the onus probandi does not lie with the accused; on the contrary, it is the State that has to demonstrate the accused's guilt. Modern doctrine accordingly maintains that "the accused does not need to prove his innocence, which has already been constructed by the presumption protecting him, but rather the accuser has to fully construct his position, leading to certainty that a punishable act was committed.124 121. The Commission observes that, in the present case, the conduct of the authorities aimed at validating the presumed declaration - in respect of which there were allegations of coercive and non-technical defense - to establish Mr Montesinos' explains the way in which the principle of presumption of innocence was understood in the framework of the Ecuadorian criminal process that at the time regulated the investigation of crimes related to drugs. Specifically, article 116 of the Law on Narcotic Drugs and Psychotropic Substances stated that "[t]he informative part of the public force and the pre-procedural statement rendered by the accused in the presence of the fiscal agent shall constitute a serious presumption of guilt." The IACHR notes that the content of this norm meant that the accused person would have the burden of reversing that "serious presumption", which has been analyzed by the IACHR, declaring that it is 121 122 182. I/A Court H.R. Case of Ricardo Canese v. Paraguay. Judgment of August 31, 2004. Series C No. 111, paragraph 154. I/A Court H.R. Cabrera García and Montiel Flores v. Mexico. Judgment of November 26, 2010. Series C No. 220, paragraph 123 Human Rights Committee. General Comment No. 32, ‘Article 14: Right to equality before courts and tribunals and to a fair trial’. CCPR/C/GC/32. August 23, 2007, paragraph 30. 124 IACHR, Report No. 5/96, Case 10.970, Fernando Mejía Egocheaga and Raquel Martín de Mejía, Peru, March 1, 1996. 22