436. This Court will now analyze the alleged violations of the right to defense of Jorge
Martínez (Group 4), Luis and Enrique Archbold Jay (Group 3) and Rafael Rojas (Group 2). In
this regard, the Court has pointed out that the right of defense is a central component of due
process that requires the State to treat the individual, at all times, as a true subject of the
proceedings, in the broadest sense of this concept and not simply as an object thereof. 612
C.2.1. Situation of Jorge Martínez Meléndez (Group 4)
C.2.1.1. Alleged violation of the right to hear and present evidence
437. In the instant case, Mr. Martínez Meléndez's right to defense was allegedly violated
because he was not allowed to have direct access to the evidence. According to his
representatives, Mr. Martínez asked the trial court to be present and to be able to comment
on the introduction of any documentary or testimonial evidence; however, he was prevented
from doing so during the introduction of some evidence, which meant that he was unable to
know its content or make direct comments on it.
438. In their arguments, the representatives did not specify on which occasions Mr.
Martínez did not have the opportunity to hear and present evidence. They merely cited
judgment No. 2008-232 issued by the Third Chamber of Criminal Cassation, which mentions
the dates of hearings in which, allegedly, this situation would have arisen. Therefore, the
Court will now analyze only the hearings mentioned in the excerpt of the cassation judgment
cited by the representatives in their arguments. These trial records refer to the hearings of
May 24 and 25, July 13, August 1, 3, 9, 16 and 23 and September 5, 8, 13 and 19, 2006. 613
439. First, it appears from the records that during hearing No. 38 held on Wednesday, May
24, 2006, Mr. Martínez was present at all times. 614 During this hearing, his representative
informed the trial court that he always wished to have direct access to the evidence. 615
Subsequently, due to a medical appointment, Mr. Martínez indicated that he would be unable
to attend the hearing programed for the following Friday, so “the president of the court
indicate[d] that […] neither of the two hearings would be held on Friday.” 616
440. On Thursday, May 25, 2006, the trial court announced that “the first hearing today
cannot be held, since the defendant Jorge Martínez has stated on several occasions that he
wishes to be present both in the incorporation of the documentary evidence and in the
presentation of the testimonial evidence. Therefore, there will be no hearing in the morning,
given his absence.” 617 That same day, in the afternoon, the trial hearing took place, but unlike
other court records, this one does not show that Mr. Martínez was absent; nor does it show
that his defense counsel expressed his disagreement with the holding of the hearing, in the
event that his client was not present. Therefore, this Court does not have elements to rule on
the hearing of May 25, 2006. It should be noted that before this hearing concluded, it was
announced that “the parties are summoned for the continuation of the trial tomorrow, Friday,
May 26, at 8.30 am.” 618
612
Cf. Case of Barreto Leiva v. Venezuela, supra, para. 29, and Case of Pollo Rivera et al. v. Peru. Merits,
reparations and costs. Judgment of October 21, 2016. Series C No. 319, para. 189.
613
Cf. Decision No. 2008-00232 of the Third Chamber of the Supreme Court of Justice, of March 11, 2008
(evidence file, folio 33970).
614
Cf. Record of Hearing No. 38 of May 24, 2006 (evidence file, folio 24887).
615
Cf. Record of Hearing No. 38 of May 24, 2006 (evidence file, folio 24889).
616
Cf. Record of Hearing No. 38 of May 24, 2006 (evidence file, folios 24887 and 24889).
617
Cf. Record of Hearing No. 39 of May 25, 2006 (evidence file, folios 24891 to 24892).
618
Cf. Record of Hearing No. 39 of May 25, 2006 (evidence file, folio 24894).
135
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