79
provided that no one else was examining them at the time.” The State
attorney “knew about the charges that the prosecutor would present
beforehand […], and also the order in which the witnesses would be called,
and about other documents and information”;
q)
The defense lawyer was only provided with copies of the records or
summarized transcripts on thee occasions, “even though 33 hearings were
held over a period of three months. This situation, made it exceedingly
difficult for the alleged victim’s lawyer to examine the testimonial statements
made before the court, and to prepare her defense”;
r)
Since the hearings were “very continuous” and ended after visiting
hours, the defense lawyer was unable to discuss the evidence considered by
the judge with the alleged victim;
s)
The pre-trial investigation for the civil trial which began on August 28,
2000, “lasted more than the 30 days that, with an extension of 20 days, was
established for it”; and
t)
The public hearing of the civil trial began on March 20, 2001, a delay
that “violated Articles 7(4) and 8(2) of the Convention”.
Arguments of the State
131.
Regarding Article 8 of the Convention, the State argued that:
a)
The conditions under which the “military and police proceedings”
against Lori Berenson were resolved by annulling the sentence and putting
the alleged victim on trial in the ordinary jurisdiction;
b)
There are no grounds in the Convention or in the Court’s case law for
concluding that the alleged victim’s human rights were violated during the
proceeding in the ordinary jurisdiction. During the civil proceeding, the
gathering of evidence and its assessment de jure and de facto were carried
out with “all guarantees of due process”;
c)
If probative value had been granted to the evidence obtained in the
military jurisdiction, “there would have been sufficient elements” to convict
the alleged victim for the categories of crime included in paragraphs 9(d) and
9(f) of Article 4 of Decree Law No. 25,475;
d)
“The obligation to state the grounds on which the judgment is based
cannot be considered one of the rights recognized to those accused of
carrying out criminal acts under Article 8 of the Convention”;
e)
Peru’s criminal jurisdiction is regulated by the 1940 Code of Criminal
Procedure. The charge filed by the Prosecutor requires an exceedingly formal
prior investigation, which must be carried out by the examining judge. Once
the charge has been presented, a court or criminal chamber receives the
parties in an oral proceeding, to process the evidence admitted for and
against the defendant;
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