88
163. In this regard, the Court considers that, there are elements in the body of
evidence before the Court, which prove that the right to presumption of innocence
was respected in the processing of the proceeding in the ordinary criminal
jurisdiction, in the pre-trial investigation and during the oral proceeding.
164. Consequently, this Court considers that it has not been proven that the State
violated Article 8(2) of the Convention to the detriment of the alleged victim in
relation to the trial against her in the ordinary jurisdiction.
*
*
*
Adequate time and means for the preparation of the defense
165.
Article 8(2) of the Convention establishes In this regard that:
2. […]. During the proceedings, every person is entitled, with full equality, to the
following minimum guarantees:
[...]
b.
prior notification in detail to the accused of the charges against him;
c.
adequate time and means for the preparation of his defense;
d. the right of the accused to defend himself personally or to be assisted by legal
counsel of his own choosing, and to communicate freely and privately with his
counsel;
a) Criminal proceeding in the military jurisdiction
166. Principle No. 8 of the Basic Principles on the Role of Lawyers concerning
special safeguards in criminal cases, which establishes the standards for the
adequate exercise of the defense in these cases, stipulates that:
All arrested, detained or imprisoned persons shall be provided with adequate
opportunities, time and facilities to be visited by and to communicate and consult with a
lawyer, without delay, interception or censorship and in full confidentiality. Such
consultations may be within sight, but not within the hearing, of law enforcement
officials.252
167. The restriction of the task of the alleged victim’s defense lawyer and the
limited possibility of presenting evidence for the defense during the trial in the
military jurisdiction has been demonstrated in this case (supra para. 88(27)).
Indeed, the alleged victim was not informed fully and opportunely of the charges
against her; the free and confidential communication between Lori Berenson and her
defense lawyer was obstructed; the judges responsible for the proceedings for
treason were unidentified or “faceless” officials, so it was not possible for Lori
Berenson and her lawyer to know whether there were grounds for raising objections
to them and to be able to prepare an adequate defense; and the alleged victim’s
lawyer only had access to the file the day before the delivery of the first-instance
judgment. Consequently, the presence and action of the defense lawyer was a mere
252
Cf. Case of Castillo Petruzzi et al., supra note 25, para. 139; and Basic Principles on the Role of
Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of
Offenders, held in La Havana (Cuba) from August 2, to September 7, 1990.
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