92
184. The Inter-American Court has indicated, as has the European Court, that the
defendant has the right to examine witnesses who testify for and against him, in the
same conditions, in order to defend himself.259
185. Imposing restrictions on the alleged victim and the defense lawyer violates
this right, established in the Convention, and also their right to call witnesses who
might shed light on the facts.260
186. Consequently, the Court declares that the State violated Article 8(2)(f) of the
Convention to the detriment of the alleged victim, in relation to Article 1(1) thereof,
in the criminal proceeding in the military jurisdiction.
b)
Criminal proceeding in the ordinary jurisdiction
187. The Court has established that, even though the restriction contained in
Article 13(c) of Decree Law No. 25,475 was still in force in Peru, the alleged victim’s
defense lawyer had and exercised the right to examine the witnesses who testified
during the pre-trial investigation stage and during the oral proceeding in the ordinary
jurisdiction (supra paras. 88(50) and 88(58)), and also to present the witnesses he
considered pertinent.
188. During the processing of the trial in the ordinary criminal jurisdiction, several
police agents were summoned to testify at the request of the prosecutor (supra para.
88(51)) and the alleged victim’s defense lawyer did not make any request In this
regard. Only one of the police agents proposed by the prosecutor testified before the
tribunal (supra para. 88(50)), and the defense lawyer raised no objection when the
prosecutor waived the appearance of the others.
189. Consequently this Court considers that, in the instant case, it has not been
proved that the State violated Article 8(2)(f) of the Convention to the detriment of
the alleged victim in the trial against her in the ordinary jurisdiction.
*
*
*
Right to appeal the judgment to a higher judge or court
190.
Article 8(2)(h) of the Convention indicates:
2. […] During the proceedings, every person is entitled, with full equality, to the
following minimum guarantees:
[...]
h) the right to appeal the judgment to a higher court.
259
Cf. Case of Castillo Petruzzi et al., supra note 25, para. 154; Eur. Court H. R., case of Barberà,
Messegué and Jabardo, decision of December 6, 1998, Series A no. 146, para. 78; and Eur. Court H. R.,
case of Bönishc, judgment of May 6, 1985, Series A no. 92, para. 32.
260
Cf. Case of Ricardo Canese, supra note 3, para. 166; and Castillo Petruzzi et al., supra note 25,
para. 155.
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