73
183.
Likewise, the Tribunal has held, as stated in Article 8(2) of the Convention,
that the principle of presumption of innocence demands that a person cannot be
convicted unless there is full proof of his criminal liability. If the evidence presented
is incomplete or insufficient, he must be acquitted, not convicted.281 Hence, the
lack of full proof of the criminal responsibility in a condemnatory judgment
constitutes a violation of the principle of presumption of innocence,282 which is an
essential element for the effective exercise of the right to defense and accompanies
the defendant throughout the proceedings until the judgment determining his guilt
is final.283
184. According to that stablished by the European Court, the principle of
presumption of innocence implies that the judges should not start a proceeding
with a preconceived idea that the accused has committed the crime charged; the
burden of proof is on the prosecutor, and any doubt should benefit the accused.
The presumption of innocence will be violated if, without the accused having
previously been proven guilty, a judicial decision concerning him reflects an opinion
that he is guilty.284
185. In the instant case, the Court notes that, in the first stage of the proceeding
against Messrs. Cabrera and Montiel, evidence challenged by the defense for being
irregular and tainted was admitted. These questionings were analyzed by the
different instances that heard the case and, in some cases, the argument of the
defense was recognized. In fact, according to the terms of the final judgment of
August 14, 2002, “[the] Federal Court deemed the evidence the Public Prosecutor’s
Office gathered at the preliminary inquiry stage regarding the crimes of possession
of firearm without a permit and crime against health in the form of cultivation of
marijuana to be ineffective” (supra para. 73), with which part of the evidence
challenged by the defense was not assessed when determining the conviction of
the victims.
186. The Court notes that there is no sufficient evidence to consider that the
victims had been treated as guilty. In fact, despite they were associated with a
situation of flagrante delicto, in general terms, the domestic judicial instances
treated them as if they were persons whose criminal responsibility was still
subjected to a clear and sufficient determination. Therefore, this Court deems that
it has not been proven that the State violated article 8(2) of the Convention, to the
detriment of the victims, in relation to the proceeding conducted against them.
B. Criminal proceedings to investigate the alleged torture committed
against Messrs. Cabrera and Montiel
187. The Commission stated that the military jurisdiction “was not the competent
authority to investigate the facts, inasmuch as military justice should only be used
in cases in which military criminal legal interests are endangered […].” Hence, it
considered that the complaint of torture “extends beyond any defense and security
related function [of the State],” therefore “[it] cannot be considered [as a] servicerelated crime and [that] the investigation into these facts should have been
conducted [in] the regular courts.” The representatives agreed with the
281
Cf. Case of Cantoral Benavides v. Peru, supra note 272, para. 120; Case of Ricardo Canese v.
Paraguay, supra note 279, para. 153.
282
Cf. Case of Cantoral Benavides v. Peru, supra note 272, para. 121.
283
Cf. Case of Ricardo Canese v. Paraguay, supra note 279, para. 154.
284
ECHR, Case of Barberà, Messegué and Jabardo v Spain, Judgment of 6 December 1988, App.
Nos. 10588/83, 10589/83, 10590/83, paras. 77 and 91.
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