The representatives alleged that the court-appointed defense counsels i) “d[id] not present evidence in favor of the [detainees] or [to] contradict the evidence […] presented against them; ii) did not inform them about their right not to make a statement; iii) did not challenge the lack of diligence of the military officers; iv) did not challenge the interrogations conducted […] after their arrest without the presence of a lawyer; v) did not challenge the expert opinions rendered by persons not specialized [in this matter]; vi) did not demand the necessary measures to certify the injuries [against the alleged victims]; vi) (sic) did not have a previous interview with them and vii) did not denounce the alleged torture committed against Messrs. Cabrera and Montiel. Likewise, they indicated that the court order declaring the lawfulness of the victims’ arrest was not challenged, despite the fact that the 48-hour period for bringing them before a judicial authority had expired.
The Commission did not present arguments regarding this matter. The State pointed out that Messrs. Cabrera and Montiel “received the appropriate public legal counseling and assistance.” It mentioned that the victims were always in contact with the lawyers in order to prepare their defense.
The Court has previously held that the right to defense must necessarily be exercised from the moment a person is accused of perpetrating or participating in an unlawful action and only ends when the proceeding concludes,234 including, where applicable, the enforcement phase. To prevent a person from exercising his right to defense from the moment the investigation against him begins and the authority in charge orders or executes actions that imply an curtailment of rights is to enhance the investigative powers of the State to the detriment of the fundamental rights of the person under investigation. The right to defense requires the State to treat the individual, at all times, as a true party to the proceeding, in the broadest sense of this concept, and not simply as an object thereof.235
In particular, the Court emphasizes that the defense provided by the State must be effective, for which purpose the State must adopt all the appropriate measures.236 If the right to defense begins from the moment when an investigation into an individual is ordered, the accused must have access to legal representation from that moment onwards, especially during the procedure in which his statement is rendered. To prevent the accused from receiving assistance from a defense counsel is to severely limit his right to defense, which leads to a procedural imbalance and leaves the individual unprotected before the punitive authority.237 However, the appointment of a defense counsel for the sole purpose of complying with a procedural formality would be tantamount to not having a technical legal representation; therefore, it is imperative that the defense counsel act diligently in order to protect the procedural guarantees of the accused and thereby prevent his rights from being violated.
Furthermore, this Court considers that one of the guarantees inherent in the right to defense is to have sufficient time and adequate means to prepare the defense, which requires the State to allow the accused to have access to the case file and to the evidence gathered against him.238
In this case, on May 4, 1999, Messrs. Cabrera and Montiel rendered their statements at the Public Prosecutor’s Office in the presence of their court-appointed defense counsel and attesting witnesses.239Subsequently, on May 6, 1999, Messrs. Montiel and Cabrera rendered a second statement before the Public Prosecutor’s Office in the presence of a federal court-appointed defense counsel.240 On May 12, 1999 the first instance court issued a formal order for the arrest of Messrs. Cabrera and Montiel,241 which the victims appealed the following day. In that appeal, a new defense counsel was appointed by the court.242 Later, on July 13, 1999 a private defense counsel accompanied them to render an amplification of their statement.243 On August 20, 1999, Messrs. Cabrera and Montiel appointed attorneys Digna Ochoa y Plácido, Maria del Pilar Noriega and Jose Cruz Lavanderos Yañez as private defense counsel.244 From that moment, the Miguel Agustín Pro Juarez Human Rights Center (Centro de Derechos Humanos Miguel Agustín Pro Juárez) took on the defense of Messrs. Cabrera and Montiel and filed several motions and remedies.
The representatives reject the actions taken by the court-appointed defense counsels during the proceeding, considering that by failing to challenge certain evidentiary facts, these would have played an important role in their subsequent conviction. At the domestic level, the victims’ defense counsel argued that the statements of May 4 and 6, 1999 were not rendered before the Public Prosecutor’s Office but were signed at the military battalion and that the victims were always under the control of military personnel during those days.245 The representatives further alleged that “at some point, certain local officials appeared at the Battalion to draw up a record of the weapons and, possibly, to issue other documents that would then be presented at the criminal proceeding" and which the judges considered valid. The representative indicated that all this was done in collusion with the court-appointed defense lawyers. The domestic courts accepted these arguments and, therefore, the defense counsels and the attesting witnesses, who submitted these statements before the Public Prosecutor, were called to render a testimony.246 In addition, the courts conducted confrontation procedures with the victims247 and concluded that the victims had received adequate counseling.
In the statements rendered on May 4, 1999, the victims accepted the facts248 presented by the military in the complaint sheet against them.249 However, the domestic courts considered that in that statement, Messrs. Cabrera and Montiel “were duly informed of their individual guarantees, as their court-appointed defense counsel was required to do, and as he [himself] admitted.”250 Regarding the statements rendered on May 6, the court-appointed defense counsel stated that she had spoken to Mr. Montiel but she could not remember for how long, that she asked him some questions regarding his arrest and his treatment by the soldiers who arrested him.251 The domestic judicial courts considered that these statements rendered on May 6, 1999 were in accordance with the law and “with the assistance" of a court- appointed defense counsel “who was designated by the accused themselves” and that “the proceedings themselves contain the counsel’s interventions in favor of the accused.”252 In particular, the judgment issued on August 21, 2002 by the First Single-Magistrate Court considered that:
“Mr. [Montiel] received assistance during all his appearances before the Public Prosecutor’s Office and the District Court, and was duly informed and notified of the reasons for the charges against him; he was granted adequate time and means to prepare his defense; he received counseling from his defense counsels or from trusted persons with whom he communicated freely; he was informed about his right to defend himself or, if he did not have the necessary resources, or a particular attorney to defend him, about the right to have a Federal Public defender appointed for him; he ha[d] the right to question witnesses the present in Court and he was given help to arrange for the appearance of all those persons that could shed light on the facts, so much so, that his defender also took advantage of this benefit to question the witnesses who testified against him, the defenders who assisted him in the prosecution and preparation thereof, and the attesting witnesses who were present in the first statements; he was also informed about the right not to incriminate himself or to plead guilty; likewise, he was duly informed of his right to appeal the judgments before a Superior Court.”253
Based on the foregoing, the First Single-Magistrate Court considered that Messrs. Cabrera and Montiel received the necessary defense, since “the fact that they mentioned that they do not recognize their court-appointed defense counsels […], does not undermine the evidentiary value of the proceedings in which they intervened, given that they were definite in mentioning that they had indeed counseled them and ensured that their individual guarantees were not violated.”254 The domestic courts that heard the case255 responded to the charges of irregularities by the court-appointed defense counsels in a similar manner to the aforementioned Single-Magistrate Court.
At the same time, the domestic case file reveals that, in the statement rendered by Messrs. Cabrera and Montiel at the Public Prosecutor’s Office on May 7, 1999, a court-appointed defense counsel as well as a private attorney intervened. On May 12, 1999 a formal detention order was issued against the victims and on the following day, they appealed that court order and appointed a defense counsel to represent them at this procedural stage (supra para. 69). On June 29, 1999, the First Single-Magistrate Court ruled on the motion of appeal and partially confirmed the arrest order against Mr. Montiel Flores,256 since it revoked the charges brought against him related to possession of narcotics due to lack of evidence. As to Mr. Cabrera, the Court upheld the formal order for his detention. Based on the foregoing, this Court notes that Messrs. Cabrera and Montiel did indeed have a defense counsel who appealed the court’s decision and that said appeal brought some positive results for the interests of the victims.
Bearing in mind the foregoing points, the Court considers that there is not sufficient evidence to conclude that the actions taken by the court-appointed defense counsels in the proceedings of May 4, 6 and 7, 1999 constituted per se a violation of the right to defense.
