78
statement or declaration as an element of the criminal classification. Accordingly,
consideration of whether such offenses had been committed focused on whether a
statement or declaration had been made that attributed to another person an offense
which could expose that person to a disciplinary procedure or “cause considerable
prejudice to the reputation, standing or interests of the person offended,” or in which
another person was “insult[ed], discredit[ed], dishonor[ed] or slight[ed],” and in
determining the dolus of the author of such conduct.
159. The Court has noted that the First Criminal Trial Court and the Third Chamber
of the Court of Criminal Appeal presumed the dolus of the accused, because he did
not retract the statements he had made, but rather ratified them, and owing to his
level of intellectual preparation and his knowledge of the Itaipú public works which,
in the judge’s opinion, implied that “he knew perfectly well who his statements were
aimed at, their scope, and the damage they could cause.” Also, based on these
conclusions, the judges assumed that Mr. Canese intended to injure or insult the
image, reputation, credit or interests of the members of the CONEMPA board of
directors.
160. To illustrate the reasoning of the criminal courts, the Court deems it pertinent
to underscore what was established in the judgment of first instance when the judge
stated that:
[…] it should be noted here that the defendant appeared before this court on various
occasions accompanied by several political leaders and party members, which led this
court to conclude that what he stated on those occasions was evidently intentional.
[…]
[…T]he time has come to determine clearly the result of these preliminary proceedings,
opened to investigate the offenses for which the action has been filed, and the court
reaches the obvious conclusion that the defendant has not been able to refute the
accusation that he intentionally committed the offenses classified in Articles 370 and 372
of the Penal Code.
161. Based on the foregoing, the Court finds it evident that both the First Criminal
Trial Court and the Third Chamber of the Court of Criminal Appeal presumed the
dolus of Mr. Canese and, based on this, they demanded that he should refute the
existence of his punishable intention. Hence, these courts did not presume the
innocence of the defendant. The Court therefore concludes that the State violated
Article 8(2) of the American Convention to the detriment of Mr. Canese.
162. Regarding the restriction to leave the country, the Court has indicated that
this restriction could constitute a substitution for imprisonment, if it continues to be
applied when it has ceased to fulfill its function as a procedural guarantee (supra
para. 129).149 In the instant case, it has been established, in accordance with the
aforementioned parameters, that the restriction of freedom of movement applied to
Mr. Canese during almost eight years and four months became unnecessary and
disproportionate (supra paras. 131, 134 and 135) to ensure that he did not evade his
criminal liability should the sentence be executed. In the practice, this signified
anticipating the sentence imposed but never executed, which constitutes a violation
of the right to presumption of innocence established in Article 8(2) of the
Convention.
c)
Regarding to right to defense
149
Cf. Case of Suárez-Rosero, supra note 140, para. 77.
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