122.
Along these lines, Article 8.2.b also requires the States to satisfy the right to be informed of the
accusation, as a prerequisite to the exercise of the right to a defense, in the case of crimes that can only be
prosecuted at the victim’s request. In such cases, the judge must guarantee that the aforementioned
requirements are met. The IACHR notes that Article 401 of the Organic Code of Criminal Procedure
establishes that “A private prosecution must be filed in writing directly with the trial court and must contain:
1. The full name, age, marital status, profession, domicile or residence, of the private prosecutor, his or her
national ID card number, and his or her family relationship to the accused; 2. The full name, age, domicile or
residence of the accused; 3. The crime alleged, and the date, place, and approximate time of its perpetration;
4. A detailed account of all of the essential circumstances of the act; 5. Evidence supporting the allegation of
the accused’s participation in the crime; 6. Substantiation of victim status; 7. The signature of the accuser or
his or her attorney-in-fact.”
123.
With respect to the violation of this right, the alleged victim limited himself to stating that the
criminal complaint filed against him failed to meet the requirements of Article 401 of the Organic Code of
Criminal Procedure, and therefore should be ruled inadmissible by the competent supervisory judge. He did
not cite any specific problems contained in the complaint. The IACHR observes that the Seventh Trial Court
required the accusing party to satisfy the requirements of Article 401, and a reading of the relevant decisions
indicates that this was in fact done. Given the imprecision on this point, the Commission is unable to conclude
that the State violated Article 8.2.b of the Convention.
c) Adequate time and means for the preparation of a defense
124.
The alleged victim stated that the criminal complaint against him was amended twice in order to add
new charges, and that he did not have time to prepare his defense in view of the content of those
amendments. He further stated that he did not have access to the evidence presented by the private
prosecutor in support of the amendments.
125.
With respect to time for the preparation of a defense subsequent to the amendment of the criminal
complaint, the IACHR observes that the Seventh Trial Court ordered a stay of the trial proceedings for five
days each time, which in principle does not appear to be inadequate for the preparation of a defense to these
kinds of allegations. The petitioner has not provided any reasons to support the assertion that the 5-day
period was insufficient to guarantee his right.
126.
The Inter-American Commission and the Inter-American Court have acknowledged that fundamental
due process rights include the right to have adequate means to prepare a defense, provided for in Article 8.2.c
of the Convention, and that this requires the State to allow the accused to access the case file against him.150
The principle of adversarial proceedings, which guarantees the defendant’s participation in the examination
of the evidence, must also be respected. There is nothing on record in this case to explain, nor has the State
explained, the legal basis and well-founded reasons for which the alleged victim was reportedly denied access
to videos and copies of the interviews conducted with the alleged victim before the trial, which were
disseminated in the media, and which supported the amendment of the criminal complaint and subsequently
the defendant’s conviction. Therefore, the IACHR finds that the restriction violated Article 8.2.c of the
Convention.
d) Right of the defense to examine and obtain the appearance of witnesses and experts (Article 8.2.f)
127.
The IACHR considers it to have been proven that during the trial hearing of February 3, 2005,
defense witness José Rafael García, President of the Retirees and Pensioners Association of the National
Assembly, was detained for the alleged in flagrante commission of perjury and the commission of a crime
during a hearing. He was transferred to a detention center at the request of the prosecuting party. The
petitioner indicated that later, after having required him to comply with an in-person reporting system, the
150
I/A Court H.R., Case of Palamara Iribarne v. Chile. Merits, Reparations and Costs. Judgment of november 22, 2005. Para.170.