The IACHR found a violation of the requirements of article 8 of the ACHR.

Заголовок: The IACHR found a violation of the requirements of article 8 of the ACHR. Сведения: 2020-06-26 04:52:14

The ruling of the Inter-American Court of Human Rights of October 5, 2015 in the case of “Ruano Torres et al. (Ruano Torres et al.) V. El Salvador” (Series C, No. 303).

The applicant was assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).

Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. Then the complaint was communicated to El Salvador.

In the case, the complaint for violation of the presumption of innocence and defense through a designated lawyer was successfully considered.

Presumption of innocence and defense through a designated lawyer.


Circumstances of the case


The applicant, José Agapito Ruano Torres, was sentenced to 15 years in prison for abducting a public bus driver, despite serious doubts as to whether he was in fact a person nicknamed El Chopo, who, according to another prisoner, was allegedly participated in the crime. During the criminal proceedings, counsel were appointed for the applicant. During the identification, the victim of the crime expressed confidence that the applicant was one of the perpetrators of the crime. However, several times during the proceedings evidence was presented that the applicant was not a man nicknamed El Chopo and that he was repairing the school at the time of the abduction. The trial judge and the sentencing court refused to accept this evidence because it was declared “immaterial” or because the statute of limitations had expired.

At the hearing, the victim named all the defendants present as responsible for his abduction. The applicant was silent, but when he was given the last word, he said that he was not a man nicknamed El Chopo.

On 5 October 2001 the court announced the conviction of the applicant and other defendants as accomplices to the abduction. The counsel appointed by the applicant did not appeal the sentence. The applicant filed three review complaints, which were declared inadmissible. On September 19, 2014, the court upheld the verdict after the screening hearing that the defense requested when the Inter-American Commission submitted a substantive report.

In the proceedings before the Inter-American Court of Human Rights (hereinafter referred to as the Inter-American Court of Justice), the authorities of El Salvador recognized their international responsibility with full acceptance of the facts and legal issues raised by the Inter-American Commission.


QUESTIONS OF LAW


(a) Section 8, paragraph 2 (presumption of innocence) of the American Convention on Human Rights (hereinafter - ACHR) in conjunction with Section 1, paragraph 1 (obligation to respect and ensure rights). From the very beginning of the investigation and throughout the criminal proceedings, many elements raised questions regarding the identity of the applicant as El Chopo. However, the applicant was convicted in the absence of the organization of minimum proceedings by the police, investigative or judicial authorities to eliminate doubts about his identity or to ensure the appearance of a person who in reality could have been El Chopo. The Inter-American Court found that in situations where there is reasonable evidence that one of the defendants was not involved in the crime, the presumption of innocence should prevail.

The Inter-American Court also noted that two evidence determined the outcome of the criminal proceedings: the “unanimous and concurring testimony” of the victim of the crime and the co-accused who benefited from the application of the principle of opportunity. The Inter-American Court found that there was no justification in the criminal procedural sense for obtaining the latter’s testimony at a preliminary stage without giving the accused the opportunity to exercise their right to defense and cross-examination. The Inter-American court also pointed out the limited evidentiary value of the accused’s statement if it is the only evidence on which the decision to convict is based, since it would not objectively be sufficient to refute the presumption of innocence. Thus, the justification of guilt solely by the statement of the co-accused in the absence of other supporting elements violated the presumption of innocence. In this case, another evidence assessed by the court was the applicant’s identification at a confrontation and at a public hearing. However, the respondent Government acknowledged the violations committed during the identification and that the victim had previously seen the defendants in various media. Consequently, the Inter-American Court concluded that the state was responsible for violating the presumption of innocence.


RESOLUTION


The case has violated the requirements of Article 8 (delivered unanimously).

(b) Clause 1 of Article 8 (1), subparagraph “d” of paragraph 2 of Article 8 and subparagraph “e” of paragraph 2 of Article 8 of the ACHR (the right to be heard and the right to defense by an appointed defense counsel) in conjunction with paragraph 1 of Article 1 of the ACCHR. The Inter-American Court of Justice affirmed that the right to a defense is a central component of a fair trial. He recalled that the right to defense is exercised in two ways in the framework of criminal proceedings: (i) the actions of the accused, especially the possibility of giving evidence under oath regarding his alleged acts, and (ii) technical protection, a lawyer who advises the person under investigation. Subparagraphs “d” and “e” of paragraph 2 of Article 8 of the AHRC indicate that the accused has the right to “defend himself in person or through legal assistance of his own choosing”, and if he has not done so, he has an “inalienable right to assistance from the legal assistance provided by paid or gratis state, depending on domestic law."

The Inter-American Court found that although these provisions create various options for developing mechanisms to guarantee these rights in criminal cases where technical protection is an inalienable right, due to the significance of the rights involved and the intention to ensure equality of arms and full respect for the presumption of innocence, the right to a lawyer providing technical protection for adequate participation in the proceedings means that the defense counsel provided by the state is not limited only to cases where there are no funds. In this regard, the Inter-American Court found that a distinctive feature of most of the States parties to the AHRC is the development of an institutional structure and public policy that ensures at all stages of the proceedings the inalienable right to technical defense in a criminal case by public defenders. In this way, States contribute to ensuring access to justice for the most vulnerable people, who are usually subject to selective criminal proceedings. At the same time, the Inter-American Court noted that the appointment of a public defender only to comply with the procedural formality is the failure to provide technical protection, therefore, it is essential that this defender act diligently in order to defend the procedural guarantees of the accused and prevent the derogation of his rights and violation of the relationship of trust. To this end, the Inter-American Court found that public defense as a means by which the state ensures the inalienable right of every person accused of a crime to the assistance of a lawyer must have sufficient guarantees to enable it to act effectively and with equal opportunities in relation to the prosecution. The state must take all necessary measures to comply with this obligation. This includes having qualified and trained advocates who can operate with functional autonomy.

In the present case it was alleged that the technical protection provided by the State did not work effectively. In El Salvador, the public defense department was part of the Office of the Attorney-General. As a state body, his behavior should have been considered as the actions of the state. However, the Inter-American Court found that the state could not be held responsible for all the shortcomings of public defense in the light of the independence of the profession and professional opinion of the defender. In addition, he indicated that, as part of the State’s obligation to provide adequate public protection, it should carry out appropriate selection of public defenders, develop control over their work and ensure their periodic training. To assess a possible violation of the right to defense by the state, the Inter-American Court analyzed whether the act or omission constituted an unforgivable negligence or an obvious error in the defense, which had or could have had a decisive negative effect on the interests of the accused. The Inter-American Court noted that it is necessary to consider the proceedings as a whole if the specific action or omission is not so serious that in itself constitutes a violation of the guarantee. In addition, he clarified that a minor disagreement with the defense strategy or the outcome of the proceedings would not be sufficient to diminish the right to defense, inexcusable negligence or an obvious mistake should be proved. In the present case, the Inter-American Court found that the public defenders representing the applicant did not invoke the nullity of the violations committed during the identification, which was the basis for his conviction, and did not file a complaint against his conviction, which prevented him from obtaining a full review of the sentence. The Inter-American Court concluded that such omissions constituted a violation of the defendant's inalienable right to counsel.

The Inter-American Court also noted that international responsibility of the state may arise in connection with the reaction of the judiciary to the actions and omissions of a public defender. The judiciary had an obligation to protect and control to ensure that the right to a defense did not become illusory due to ineffective legal assistance. Thus, the international responsibility of the state also arises if the unforgivable negligence or a clear mistake of defense should be obvious to the judicial authorities or they will be informed about it and will not take the necessary and sufficient measures to prevent and / or eliminate the violation of the right to defense.

In the present case, the Inter-American Court concluded that gross errors in the activities of public defenders and the lack of an adequate and effective judicial response left the applicant in a state of complete defenselessness, aggravated by the fact that he was deprived of his liberty throughout the criminal proceedings. In such circumstances, the Inter-American Court found that the applicant had not been heard with adequate guarantees.


RESOLUTION


The case has violated the requirements of Article 8 of the Convention (delivered unanimously).

(c) Other violations of the rights provided by the ACHR. The Inter-American Court also found violations of article 5, paragraphs 1 and 2 (right to personal integrity and the prohibition of torture), article 7, paragraphs 1, 3 and 6 (right to personal freedom) and article 25, paragraph 1 (right to judicial protection) of the ACCHR in conjunction with paragraph 1 of Article 1 of the ACHR to the detriment of the applicant (unanimously).

Finally, he found a violation of paragraph 1 of article 5 of the AHRC (right to personal integrity) in conjunction with paragraph 1 of article 1 of the AHRC (damage to his close relatives) (unanimously).

(d) Reparations. The Inter-American Court found that the ruling itself constitutes a form of reparation, and ordered the state: (i) to initiate and effectively conduct, within a reasonable time, an investigation and criminal proceedings against those responsible for alleged acts of torture against the applicant; (ii) determine the liability of the public defense representatives who contributed to the violation of the applicant's rights; (iii) ensure that the conviction imposed on the applicant is not legally binding and, therefore, eliminate all judicial, administrative, criminal or police documents existing against him in such proceedings; (iv) provide free psychological assistance; (v) provide specialized knowledge in the public institutions of El Salvador to the applicant and his family; (vi) publish the decision; (vii) place the board in a conspicuous place at the headquarters of the public defense department in order to avoid recurrence of events such as in the present case; (viii) implement compulsory and ongoing training programs that appeal to the domestic civilian police regarding human rights principles and norms, especially regarding the investigation and documentation of torture; (ix) strengthen the selection of relevant public defenders and develop protocols to ensure the effectiveness of public defense in criminal proceedings; (x) adopt or strengthen training programs addressed to public defenders; (xi) pay the amounts provided for in the regulation in respect of pecuniary and non-pecuniary damage.

 

 

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