the Court underlines that the fact that Ms. J. only had access to three supervised meetings of between 15 and 25 minutes during the fourteen months of preventive detention, which has not been denied by the State, is clearly disproportionate in relation to Ms. J.’s right to defend herself. Therefore, the State violated paragraphs (c) and (d) of Article 8(2) of the Convention, in relation to Article 1(1) of this instrument, to the detriment of Ms. J. c. Legal restrictions that prevented her from offering as witnesses those who intervened in the elaboration of the police attestation (alleged violation of Article 8(2)(f) of the Convention) 208. This Court has indicated previously that the prerogatives that must be granted to the accused include that of examining the witnesses for and against them, under the same conditions, in order to exercise their defense. 319 Article 13(c) of Decree-Law No. 25,475 was and is applicable in the proceedings against Ms. J. According to this norm, “[d]uring the preliminary investigation and the trial it shall not be possible to offer as witnesses those who intervened owing to their functions in the elaboration of the Police attestation” (supra para. 71). 209. In addition, the Court stresses that, according to the testimony of Pablo Talavera Elguera, president of the National Criminal Chamber who presided the preliminary investigation and the oral hearing of the criminal proceedings opened against Ms. J., “in the specific case [of Ms. J.], most of the sources of evidence were pre-constituted evidence, due to their urgent nature, and could only be replicated indirectly in the oral hearing through the testimony of those who prepared the records 320 or intervened in obtaining them or, otherwise, by reading them.” 210. The Court considers, as it has previously, 321 that article 13(c) of Decree-Law No. 25,475 applicable to the proceedings against Ms. J., prevented her from exercising the right to question the witnesses who intervened in the elaboration of the police attestation that substantiates the charges against the presumed victim. The Court also finds that this constraint was particularly relevant in the case of Ms. J., who, from her first statement (her police statement in 1992), has denied and questioned the content of the search records and the police attestation used as the basis for the charges against her. Consequently, the State violated Article 8(2)(f) of the Convention, in relation to Article 1(1) of this instrument, to the detriment of J. Likewise, since this violation occurred as a result of the application of article 13(c) of Decree 25,475, the State also failed to comply with Article 2 of the Convention. d. Legal restrictions regarding the means and opportunities to file preliminary questions 211. Article 13(a) of Decree No 25,475 establishes that the “preliminary questions, requests for preliminary rulings, objections and any other matter shall be decided with the judgment.” 322 212. The Court notes that this provision established a deferment of the resolution of the possible preliminary questions to the sentencing stage. In fact, the judgment acquitting Ms. J. reveals that several co-accused filed preliminary questions (such as the existence of res judicata), on which the 319 Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, reparations and costs, supra, para. 154, and Case of García Asto and Ramírez Rojas v. Peru, supra, para. 152. 320 Affidavit prepared on May 6, 2013, by the witness Pablo Rogelio Talavera Elguera (merits report, folio 1083). 321 Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, reparations and costs, supra, para. 153; Case of Lori Berenson Mejía v. Peru. Merits, reparations and costs, supra, para. 183, and Case of García Asto and Ramírez Rojas v. Peru, supra, paras. 154 and 161. 322 Decree-Law No. 25,475 of May 5, 1992, Article 13(a) (file of annexes to the answering brief, annex 7, folio 3261). 63

Seleccionar párrafo de destino3

Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos