63
A. Criminal proceedings conducted against Messrs. Cabrera and Montiel
1.
Right to defense
152.
The representatives alleged that the court-appointed defense counsels i)
“d[id] not present evidence in favor of the [detainees] or [to] contradict the
evidence […] presented against them; ii) did not inform them about the right not to
make a statement; iii) did not object to the lack of diligence of the military officers;
iv) did not challenge the interrogations conducted […] after the detention without
the presence of a lawyer; v) did not challenge the expert opinions rendered by
non-specialized persons [regarding the matter]; vi) did not require the necessary
measures in order to certify the injuries [against the alleged victims]; vi) (sic) did
not have a previous interview with them and vii) did not denounce the alleged
torture committed against Messrs. Cabrera and Montiel. Likewise, they indicated
that the court order declaring the lawfulness of the victims’ arrest was not
objected, despite the fact that the term of 48 hours to bring them before the
judicial authority had expired.
153.
The Commission did not present arguments about this topic. The State
mentioned that Messrs. Cabrera and Montiel “had the corresponding public legal
counseling and assistance.” It mentioned that the victims always maintained
contact with the lawyers in order to prepare their defense.
154.
The Court has previously held that the right to defense must be necessarily
exercised as from the moment a person is accused of being the perpetrator or
participant of an illegal act and ends when the jurisdiction thereby ceases,234
including, where applicable, the enforcement phase. To prevent a person from
exercising his right to defense from the moment the investigation begins and the
authority in charge orders or executes actions entailing an infringement of rights is
to magnify the investigative powers of the State to the detriment of the
fundamental rights of the person under investigation. The right to defense binds
the State to treat the person, at all times, as a true party to the proceeding, in the
broadest sense of this concept and not simply as an object thereof.235
155.
Specially, the Court emphasizes that the defense provided by the State
must be effective, for which the State must adopt all the adequate measures.236 If
the right to defense arises as of the moment in which an investigation into an
individual is ordered, the accused must have access to a legal representation from
that moment onwards, especially during the procedure in which his statement is
rendered. To prevent the accused from being advised by a counsel means to
strictly limit the right to defense, which leads to a procedural unbalance and leaves
the individual unprotected before the punishing authority.237 Notwithstanding, the
appointment of a defense counsel by the court with the sole purpose of complying
with a procedural formality would mean not to have legal representation, for which
it is imperative that said defense counsel acts diligently in order to protect the
procedural guarantees of the accused and thereby prevent his rights from being
violated.
234
Case of Barreto Leiva v. Venezuela, supra note 100, para. 29. See mutatis mutandis Case of
Suárez Rosero v. Ecuador. Merits. Judgment of November 12, 1997, Series Nº. 35, para. 71; Case of
Heliodoro Portugal v Panamá. Preliminary Objections, Merits, Reparations and Costs. Judgment of
August 12, 2008. Series C N. 186, para. 148; and Case of Bayarri v. Argentina, supra note 123, para.
105.
235
Case of Barreto Leiva v. Venezuela, supra note 100, para. 29.
236
Cf. ECHR, Case of Artico v. Italy, Judgment of 13 May 1980, App. N°. 6694/74, paras. 31-37.
237
Case of Barreto Leiva v. Venezuela, supra note 100, para. 62.
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