Investigate the principle of the need for evidence doctrinally and all its components in criminal law

Specific goal:

 To investigate the conceptions of various authors about the need for the test

 Make known what the need for the test consists of

 Analyze a sentence based on the principle of the need for proof

In this document, the principle of the need for evidence is emphasized, this principle is a fundamental axis within the processes so that the judge can issue a resolution or sentence within the Litigation, since it is necessary to rely on the evidence so that the Decisions made regarding the process are supported as a means of conviction duly incorporated into each procedural action through those who are entitled to present the evidence, since each evidence presented will demonstrate the innocence or guilt of the accused. Similarly, the tests are a support mechanism for the judges to issue a verdict in the process based on them, in turn prohibiting them from making their decisions based on private knowledge or personal interest, since they must exercise their sanctioning powers to impart social justice, in addition to this within this principle we find what is the burden of proof itself that makes manifest a number of actions carried out by one of the parties.

The test is an instrument and the necessary means to clarify the facts, starting from the general to the particular from the historical context to the present day, so that its name comes from the Latin term probative or probatory, in turn the word probus means good, it is then that the result is good adapts to any evidentiary reality for the demonstration of some fact. For many, this principle of the need for proof is a way of demonstrating, verifying, and investigating the truth of the fact that will be affirmed during the process by the parties before the judges. Likewise, for a test to be justified and above all legitimate, it must meet certain parameters, so that each procedural activity aimed at presenting evidence about the act, which is regulated so that there is no inconsistency after issuing the final verdict and the facts of the dispute.

According to Rolando Bravo, he mentions that criminal trials are legally the legal means of bringing conviction to the judge and that he decides on the application of the criminal law, that is, they serve for the correct application of the criminal law to a specific case, becoming the base of a penal sanction or they will mean the acquittal of a person to be penalized; So which group does the criminal evidence belong to? To criminal law or criminal procedural law. (Bravo, 2010)

Regarding the evidence or the need for evidence in criminal matters, it indicates that it is a legal means by which it can lead to the conviction of the judge after carrying out the analysis, assessment, veracity of the evidence, once the judge is convinced or motivated based on the evidence of facts and law decides on the application of the relevant sanction in accordance with the law, that is, the evidence helps us to ensure that the criminal law is applied correctly and efficiently in a specific case, to Furthermore, the evidence becomes an essential basis for the application of the criminal sanction or, in turn, the acquittal of the people who were criminally sanctioned. Responding to the questions that Rolando Bravo asks, it can be said that the need for proof belongs to criminal procedural law, being the objective part of the procedures that will be given after the commission of a crime.

For Joel Astudillo, the principle of the need for evidence refers to this principle that the facts on which the judgment must be based, be demonstrated with evidence provided in the process that either party or the Judge of office, when appropriate. This principle represents a guarantee for the liberty and rights of individuals, since otherwise they would be in the hands of partial Judges. (PORTILLO, 1998)

According to this author, the need for proof that the facts must be substantiated to issue a sentence that has been demonstrated and approved in the process by any of the procedural parties or in turn by the ex officio judge when it has to issue a test such as a graphological price for the recognizing of headings. This principle is fundamental as it is a guarantee for freedom, respect for rights and true judicial protection of citizens, because if they do not rely on the evidentiary activities to dictate the verdict, the judges would issue partial decisions, thus violating due process.

For Devis Echeandia, judicial evidence is “the set of rules that regulate the admission, production, assumption and assessment of the various means that can be used to bring the judge to conviction on the facts that are of interest to the process” (Echeandia, 1972)

The trialist Devis defines judicial evidence as a set of rules that are aimed at regulation, admission, production, assumption, and above all the evaluation of all the evidentiary means that can be applied to lead the judge to the conviction about of the facts that were presented or interested in the process.

The principle of the need for proof according to Francesco Carnelutti has described it as that “A trial without evidence cannot be pronounced; a process cannot be done without tests ”. (CARNELUTTI, 2007)

Francesco Carnelutti gives us a conception of the need for proof itself, which points out that in a trial, a sentence cannot be passed without the evidence because it will lack grounds of fact and law, and a process cannot be initiated or developed without the evidence. Relevant, any of the parties can present said evidence since when presented, the other party may contradict the evidence and the judge will analyze it.

According to Azula Camacho, the evidence is essential and fundamental, and the judicial official only obtains knowledge of it through the means duly associated with the process. It is therefore that the principle of the need for proof is what is required in a process determined to constitute the factual presuppositions of the claims or exceptions (Camacho, 1998)

Evidence is essential because judges can access and have knowledge of it through the parties or at the request thereof, therefore this principle of the need for the need for evidence is that it is required when a process is taking place since that way can factual facts of the claims or exceptions are adapted to the legal norm

According to Devis Echandía in his book on the judicial theory of evidence, he explains that this principle must be understood as the need for evidence, that is what interests the respective process to constitute the facts on which the debate is based, without whose proof the sentence cannot be pronounced. The need for proof is a notion that includes facts that must be the subject of evidence without taking into account who is required to provide it, therefore it is objective, and refers to certain and certain facts, that is, those that in each process must be tested, in this order of ideas the need for proof is identified as concrete. (Echeandia, 1972)

As we had mentioned, Devis defines the need for evidence as a trial cannot take place without evidence, much less pass judgment, which is why it also indicates that this principle is of interest in the process for the reconstruction of the facts on which it focused. the judicial debate and if the facts are not proven with the evidence, no sentence can be issued. Likewise, the need for evidence is an element of the evidentiary activity of the facts that will be the subject of evidence regardless of who should be provided with the acts, since this principle indicates that each evidence will be proven while the process is developed and is considered concrete. to issue sentence.

Admissibility, Conductivity and Need for the Evidence

“To be admitted, the evidence must meet the requirements of relevance, utility, conduct and will be practiced, with loyalty and truthfulness, where the judge will conduct the evidentiary debate impartially and will be aimed at clarifying the procedural truth. For this reason, the resolution by which the judge decides not to admit any evidence may be appealed with deferred effect. If the appeal is admitted, the superior judge will order the test, provided that with it the result may vary fundamentally. It should be noted that all the facts alleged by the parties must be proven, except for those that do not require it, such as: 1. The facts affirmed by one of the parties and admitted by the opposite party in the answer to the claim or counterclaim or those determined in the preliminary hearing; 2. The impossible facts; 3. The notorious or publicly evident facts; 4. The facts that the law presumes by law. (Cornejo, 2016)

The need for evidence must meet various requirements such as its usefulness, relevance, which will be practiced with truthfulness and procedural loyalty where the judge is the one who conducts a debate on the evidentiary activities that clarify the procedural truth, however when the judge decides not to admitting a test may be appealed with deferred effect, as the test with deferred effect has been admitted, the superior court is the one who orders the evaluation and practice of evidence, therefore all the facts mentioned in the process must be proven except for: the facts that one of the parties has affirmed and the other party has admitted it after the answer to the demand, those irrelevant facts, facts that are public and evident by last facts in which the law recognizes as right.

It should be noted that when there are allegations of falsehood and it is decided against whoever proposed it, the judge will sanction bad faith and procedural disloyalty; likewise, this sanction will be applied to the party that presented the evidence, when the falsification has been justified in the process. All this allows the judge to build a judicial presumption, which reflects all acts, circumstances or signs sufficiently accredited through the evidence and that are also serious, precise and concordant, which acquire significance as a whole when they lead unambiguously. to the judge or to the conviction of the facts and circumstances exposed by the parties with respect to the controversial points. Therefore, the judge or judge can resolve the controversy on the basis of these conclusions that constitute the judicial presumption ”. (Cornejo, 2016)

It is emphasized that when there are allegations of falsehood or the evidence is altered, the judge will sanction the person who has presented him for acting in bad faith, and procedural disloyalty, the counterparty must present evidence that shows that the evidence presented by the other party is false. Justifying with it, the judge can build a judicial presumption in which each of the acts are reflected, circumstances that are proven by the evidence, so once the allegations are exposed, evidence by the parties, the court reaches the conviction of the facts by which it proceeds to resolve the conflict based on these conclusions, which constitutes the judicial presumption to pass sentence.

The burden of proof (Onus Probandi)

“The Onus Probandi is the Latin phrase used to indicate that the burden of proof lies with the actor who alleges a fact or claims a right, who is obliged to prove its existence” (Pan-Hispanic Dictionary of Legal Spanish, s.f.)

The Onus Probandi points out that the burden of proof is intrinsically related to the actor who alludes to a fact or claims a right and who is also obliged to prove its existence, moreover, the onus probandi alludes to the principle of innocence because the subject Procedural law was born with that principle and by means of legal evidence the contrary would be demonstrated.

According to Micheli Gian, the burden of proof does not have the effect of stimulating the activity of the parties, since the Public Ministry cannot be said to be the holder of an internal interest in antagonism with the accused; I believe, in effect, that it can never be said that the body of public prosecution is defeated, because the interest of society is in the punishment of the culprit and in the repression of crime precisely as long as there is a crime and, therefore, a culprit (Micheli, 1961)

When referring to the burden of proof, it expresses those who are obliged to present evidence before the courts so that, on this basis, the innocence or guilt of the accused can be demonstrated, in turn in evidence, these burdens of evidence. are presented by the parties as they are within the Litigation itself that will be governed by some principles or parameters such as the principle of effectiveness of the test, the assessment, the legitimacy, the veracity, the formality of the test, in the same way it will verify its neutrality or the possible contradiction of the evidence.

In the context of evidence in criminal proceedings, the right to the presumption of innocence acquires a double manifestation, as an evidentiary rule and as a rule of judgment. Thus, in the first of these evidentiary rules, it supposes the necessary existence of evidence of charge practiced with all the guarantees. On the other hand, in its function as a rule of judgment, it assumes a relevant role at the moment of evaluating the evidence, demanding the existence of the necessary criteria for the judge to achieve the decision on the specific case, as well as the result of the same in cases where the proof of charge is insufficient (Molina, 2012)

The burdens of proof within the processes have imposed assuming certain behaviors to the parties since in the event of not complying with it, it may generate risks of an unfavorable decision. That is why in criminal law the Onus Probandi (burden of proof or proof) is a basis of presumption of innocence within the legal system itself that respects human rights; In addition, every person is born with the principle of innocence within the processes, since it is a form of innocence, evidence that proves their guilt or in turn their innocence is admitted, especially to the clarification of the facts, however, the one who must prove their guilt is the one who accuses since by means of the evidentiary system with its evidence since the accused must not prove it but maintain his innocence as mentioned above, he was born with this principle at the beginning of the litigation.

Within the principle of necessity of the evidence it is related to the presumption of innocence since the evidence was valued, therefore it should be noted that the procedural doctrine agrees that the influence of the right to the presumption of innocence, in the criminal process, makes the evidentiary activity the pivot point of its essential content. In this way, the right to the presumption of innocence not only serves to assign the onus probandi, but also serves as a criterion for the judge’s decision by demanding the acquittal of the accused when the evidence is insufficient. Now, to be able to determine when the evidence is insufficient, or contrary sensu, when the judge can convict – due to the fact that he has elements of judgment that can prove the commission of the punishable act and the participation of the accused in it, the legislator must determine the test sufficiency threshold required by a test standard. (Molina, 2012)

The veracity of the evidence is only one of the principles that accompany procedural law is that which stipulates the loyalty that the parties must have: Principle of Procedural Loyalty, that is, that despite the existence of an adversarial process, where two parties they try to prove to a third party that they are right, this does not imply that their found position derives in tricks destined to destroy the counterparts. This is reflected in the evidentiary field, although the people found in a process have different versions of the facts (translated into evidence), these must be as close to the truth, which in other words means that the means of proof must be as reliable as possible. (SEDEP, 2010)

The veracity of the evidence is nothing more than its legitimacy and, in turn, the loyalty of the procedural subjects at the time of presenting the evidence since, despite the fact that there is a judicial dispute, procedural loyalty must prevail as such, both of the procedural parties. such as that of the courts when analyzing and carrying out test practices. Each evidence must be translated as a means towards clarifying the truth as they are evidence of procedural truth.

The object of the principle of the need for evidence in criminal matters

In criminal matters, this principle is intended to demonstrate the truth by clarifying the facts within a process based on the elements of fact and law, since it is based on a specific accusation against an individual who has allegedly committed criminal conduct. relevant. The judge, abiding by the legal regulations and the evidence presented by the parties, will issue a judgment based on it.

The elements of criminal evidence

Elements of fact.- The place where the effects of the crime are found is not always the same where the crime was committed. (Bravo, 2010)

This element of fact emphasizes the place of the crime but it is not always the same; for example, a dead person is found in a park at the scene, but the crime of murder may have been committed elsewhere and she was brought to the park to confuse investigators and evade criminal responsibility. Despite the fact that the place where the body was, is a fact because the evidence shows the materialization of the place

Elements of law.- What is intended with criminal evidence is to faithfully reconstruct the facts and thereby find out the real truth, that is, it is not about building artificial truths, but material truth (…). The facts and circumstances related to the crime may be proven by any legal means of proof, respecting the fundamental guarantees of the people enshrined in the Constitution of the Republic and in other laws. (Bravo, 2010)

The elements of law are the legal basis that the judges have for the evidence presented to be valid, since in criminal matters, the evidence is to reconstruct the facts and thereby clarify the truth, it cannot be based on artificial truths but on the materiality of the fact, so that criminal evidence, whether testimonial, documentary or expert, will be validated in accordance with the Constitution and the law.

Evidence according to the COIP

In Article 453 of the Organic Comprehensive Criminal Code defines the evidence and its purpose; The purpose of the evidence is to lead the judge to the conviction of the facts and circumstances of the offense and the responsibility of the person prosecuted. (COIP, 2019)

Within our legal regulations, the purpose of the evidence is to demonstrate to the judge the facts and circumstances of the act as well as the conviction of the same, therefore, with the evidence presented, the true truth, the materiality of the offense and in turn the responsibility of the person prosecuted.

The documentary evidence is digital evidence, photos, public documents, private documents themselves that must be governed by legal regulations, such tests must prove any title or contract.

According to Art. 501 of the Penal Code, defines the testimony. The testimony is the means through which the statement of the person prosecuted, the victim and other people who have witnessed the fact or know about the circumstances of the criminal offense are known. (COIP, 2019)

The testimony is evidence by which the person prosecuted, the victim and third parties who have witnessed the act make a statement or, in turn, know the circumstances or are aware of the commission of the criminal offense.

The expert test regarding this test the specialized person who has knowledge, skill in a matter and will carry out the necessary expertise so that they are delivered to the judge.

Summary of the Judgment

In the following sentence it will be indicated that the judge in this case the Inter-American Court of Human Rights was based on the principle of the need for proof for the resolution of the controversy of the Zegarra Marín vs. Peru Case, this case deals with Mr. Zegarra Marín who He was a deputy director of passports in the direction of migration and naturalization of Peru who is being accused of processing false passports for which the prosecution imputed responsibility to him and several authorities for alleged crimes related to the processing of illegal documents, on October 21 the prosecutor formulated a complaint against Mr. Zegarra and 11 other people, and the same day the judge of the thirty-seventh criminal court of the superior court issued an arrest warrant, however this mandate was appealed on several occasions and revoked on June 22, 1995 by virtue of the fact that the charges against Mr. Zegarra had vanished when it was established that the signature of the accused was false so he regained his freedom. But on November 8, 1996, a condemnatory sentence was handed down by the Fifth Chamber of the Supreme Court of Justice for crimes against the administration of justice, personal concealment, against public faith, falsification of documents and corruption of officials, by the which had to serve 4 years of the same sentence that was suspended conditionally and the payment of 3,000 nuevos soles for civil reparation. This sentence that the Fifth Chamber of the Supreme Court of Justice said was based on the testimonies of the co-defendants, no evidence of defense had arisen, but Mr. Zegarra filed an appeal for annulment, however it was denied and declared inadmissible.

Extract from the facts

the sentence is based on the principle of the need for proof to issue a sentence and clarification of the procedural truth, in this case this principle can be evidenced since human rights were violated, evidence of charge and defense were not presented, the principle of innocence, the burden of proof, since the testimonies of the co-defendants were not proven and lack of legality, in addition to that the sentence was not motivated based on the evidence presented, for which Mr. Zegarra filed the appeal review before the HDI court. The evidentiary activities were not substantiated in accordance with the law, for which reason the sentence handed down by the Fifth Chamber of the Supreme Court of Justice was declared null and void.

The Court concluded that, for the purposes of the instant case, the State violated the principle of the presumption of innocence of Mr. Zegarra Marín and did not guarantee the reason for the judgment. In particular, the burden of proof was reversed, the statements of the co-accused were not corroborated or analyzed with the evidence as a whole, in order to determine criminal liability beyond any reasonable doubt, which was also evidenced by the lack of Motivation of the judicial decision, violating the obtaining of a duly reasoned ruling, which guarantees the possibility of its challenge. Therefore, the State was declared internationally responsible for the violation of Articles 8.1 and 8.2 of the American Convention, to the detriment of Mr. Zegarra Marín. Regarding the alleged violation of articles 8.2.h and 25, the controversy consisted of analyzing, on the one hand, the right to appeal the first instance ruling through the nullity appeal, and on the other hand, the suitability of the appeal for review. . (IACHR, 2017)

Finishing with respect to the principle of the need for evidence, it should be noted that this principle is a fundamental axis for the process to develop since the judge relied on reliable evidence to issue a sentence, also this principle is a legal means of evidence. Thus, the judge fails in accordance with the evidentiary activities, that is, the evidence that was demonstrated and proven in the process, the judge’s decision was based on them, so that evidence that has not been demonstrated and approved does not exist in The process, in the same way, this principle allows there to be an internal judicial control through the evidentiary resources as well as an external control around the decision. In the development of the process, evidence that leads to the conviction of the judge will be provided since he is the one who determines the assessment and practice of evidence and analyzes them, as for the parties, they are obliged to present the pertinent and necessary evidence, governing their actions with loyalty. procedural, probity, veracity of the evidence that verifies the facts, and above all help the judge to issue a verdict clarifying the truth of the facts.

Annexes

CASE ZEGARRA MARÍN VS. PERU OFFICIAL SUMMARY ISSUED BY THE INTER-AMERICAN COURT JUDGMENT OF FEBRUARY 15, 2017

(Preliminary objections, Merits, Reparations, and Costs) On February 15, 2017, the Inter-American Court of Human Rights (hereinafter “the Inter-American Court,” “the Court”) issued a Judgment in which it declared the international responsibility of the Peruvian State to the detriment Mr. Agustín Bladimiro Zegarra Marín for the violation of the rights to judicial guarantees (Articles 8.1, 8.2, and 8.2.h of the American Convention), due to violations of the presumption of innocence and the duty to motivate judicial decisions, as well such as the violation of the right to appeal the decision before a judge or higher court and judicial protection (article 25 thereof) by not having an effective remedy to protect their violated rights. I. Facts Mr. Zegarra Marín held the position of Deputy Director of Passports of the Directorate of Migrations and Naturalization of Peru from March 10 to September 28, 1994. Between August and October 1994, he made himself known, by means of the press, the existence of passports allegedly processed irregularly, including that of Mr. Manrique Carreño, who had an arrest warrant for having carried out an economic swindle. According to the media, this passport was issued with the signature of Mr. Zegarra Marín.

On September 12, 1994, an Ad Hoc Prosecutor was appointed in order to take cognizance of Mr. Manrique’s case. On the occasion of this investigation, the prosecution accused various authorities of the Immigration Offices of being responsible for alleged crimes related to the illegal processing of passports. On October 21, the prosecutor filed a criminal complaint against 11 people, including Mr. Zegarra Marín. On the same day, the Judge of the Thirty-Seventh Criminal Court of the Superior Court of Justice of Lima issued an arrest warrant. This arrest warrant was appealed on several occasions and revoked on June 22, 1995, due to the fact that the charges against Mr. Zegarra Marín had been dropped, among others, when it was determined that the signature imputed to him was false, therefore that he recovered his freedom on June 30, 1995. Mr. Zegarra Marín was detained for more than 8 months. On November 8, 1996, the Fifth Criminal Chamber of the Supreme Court of Justice issued a conviction against Mr. Zegarra Marín for crimes against the administration of justice (personal concealment), against public faith (falsification of documents in general) and corruption. of officials, for which a prison sentence of four years was imposed, which was suspended conditionally, and the payment of S /. 3,000 nuevos soles for civil reparation. The conviction was based to a decisive degree on the feasibility of the facts indicated in the statements of the co-defendants, expressly stating that the defendant did not fully disprove the charges against him, “since proof of defense would not [have] arisen forceful to make him [totally] innocent. ” 2 Mr. Zegarra Marín filed an appeal for annulment. On December 17, 1997, the First Transitional Criminal Chamber of the Supreme Court of Justice issued a judgment in which it confirmed the first instance sentence and imposed other additional penalties. On September 14, 1998, Mr. Zegarra Marín filed an appeal for review with the President of the Supreme Court of Justice of the Republic, which was declared inadmissible. II. Preliminary objections and preliminary questions The State alleged three preliminary objections, which were rejected. It also alleged two “procedural aspects” related to the delimitation of the controversy. Regarding the first procedural aspect (the admissibility of the claim related to the deprivation of liberty), the Court decided that it would not rule on the merits regarding the allegations of the alleged victim in relation to the right to personal liberty, since The latter did not interpose any internal remedy to assert an eventual reparation at the internal level after having been released. Regarding the second procedural aspect (admissibility of certain facts), the Court concluded that the alleged facts related to the retirement and the exclusion of the merit table of Mr. Zegarra Marín were not submitted to the jurisdiction of the Court, for which reason accepted the State’s approach. III. Merits Regarding the alleged violation of Article 8 of the American Convention, the controversy consisted of determining whether, in accordance with the standards of due process, the principle of presumption of innocence was violated, as well as the duty to motivate judicial decisions to the detriment of the alleged victim. In light of the foregoing, the Court resolved the dispute in the following terms. Regarding the scope of the principle of presumption of innocence, the Court highlighted that this principle is a guiding axis in the trial and a fundamental standard in the evidentiary assessment that establishes limits to the subjectivity and discretion of judicial activity. Thus, in a democratic system, the assessment of evidence must be rational, objective and impartial to distort the presumption of innocence and generate certainty of criminal responsibility.

Regarding the probative value of the statements of co-defendants, the Court highlighted that the statements of the co-defendants have an indicative value and, therefore, are part of the indirect or indicative evidence, and must evaluate their contents in accordance with the principles of sound criticism. ; that is, that to reach a sentence it is necessary that there are several indications and that, among them, they be serious and precise, as well as concordant. The co-defendant does not have the duty to present statements since he performs a substantial act of defense, unlike the witness. Regarding the burden of proof and its reversal, the Court reiterated that the reliable demonstration of guilt constitutes an indispensable requirement for criminal sanction, so that the burden of proof falls on the accusing party and not on the accused, and that the accused must not demonstrate that he has not committed the crime attributed to him, since the onus probandi corresponds to the accuser and any doubt must be used for the benefit of the accused. Consequently, by presuming the guilt of the accused, requiring him to prove his guilt, the right to the presumption of innocence is violated. Likewise, he stressed that the burden of proof in criminal proceedings is sustained by the State organ, so there is no obligation on the accused to prove his innocence or to provide evidence of defense. That is, the possibility of providing counter-evidence is a right of the defense to invalidate the accusatory hypothesis, contradicting it by means of counter-tests or exculpatory evidence compatible with alternative hypotheses (counter-hypotheses), which in turn the charge has to invalidate. 3 In relation to the foregoing, the Court found that the principle of the presumption of innocence was not respected in the case under analysis, since the conviction of Mr. Zegarra Marín reversed the burden of proof by establishing that “no [or ] a conclusive proof of discharge that would make him [totally] innocent of the illicit charges against him [ban] ”. Additionally, the Court found that ex officio and exculpatory evidence that supposedly could have favored the accused were stated in the condemnatory judgment issued by the Fifth Criminal Chamber, which were not analyzed. In this sense, the Court determined that the Fifth Criminal Chamber failed to comply with its obligation to rationally and objectively assess the evidence of charge and discharge, and ex officio evidence, as well as its obligation to distort the hypotheses of innocence that arose from these tests, in order to determine criminal liability. Regarding the duty to motivate, the Court underscored the relevance of the motivation in order to guarantee the presumption of innocence, mainly in a condemnatory judgment, which must express the sufficiency of evidence of charge to confirm the accusatory hypothesis, the observance of the rules of healthy criticism in the assessment of the evidence, and the final judgment that derives from this assessment. He pointed out that the final judgment derived from the assessment of the evidence must reflect the reasons why it was possible to obtain a conviction on the imputation and criminal responsibility, as well as the assessment of the evidence to disprove any hypothesis of innocence, and only thus be able to confirm or refute the accusatory hypothesis.

Likewise, the Court highlighted the need for the conviction to provide a clear, complete, and logical foundation in which, in addition to making a description of the content of the evidence, state its appreciation of them and indicate the reasons why which they found, or not, reliable and suitable to prove the elements of criminal responsibility and, therefore, to distort the presumption of innocence. In this sense, the Court found that the conviction lacked due motivation, since the exculpatory and ex officio evidence were only stated without an analysis of the same, nor was the assessment of the evidence in which founded the guilt or the circumstances of the crime. Furthermore, the Court observed that the judgment does not reveal the reasons why the judges considered that the facts attributed to Mr. Zegarra Marín were subsumed in the criminal regulations, so that the circumstances of time, manner and place of each of the crimes for which he was accused. Finally, the Court considered that the omission in the reasoning of the judgment had a direct impact on the exercise of the rights to the defense and to appeal the judgment. Based on the foregoing, the Court concluded that, for the purposes of the instant case, the State violated the principle of the presumption of innocence of Mr. Zegarra Marín and did not guarantee the reasons for the judgment. In particular, the burden of proof was reversed, the statements of the co-accused were not corroborated or analyzed with the evidence as a whole, in order to determine criminal liability beyond any reasonable doubt, which was also evidenced by the lack of Motivation of the judicial decision, violating the obtaining of a duly reasoned ruling, which guarantees the possibility of its challenge. Therefore, the State was declared internationally responsible for the violation of Articles 8.1 and 8.2 of the American Convention, to the detriment of Mr. Zegarra Marín. Regarding the alleged violation of articles 8.2.h and 25, the controversy consisted of analyzing, on the one hand, the right to appeal the first instance ruling through the nullity appeal, and on the other hand, the suitability of the appeal for review. . The Court established that, in order to resolve the issues raised by the Complainant, it was necessary for the First Chamber of the Supreme Court to refer to Mr. Zegarra Marín’s challenges, and to rule on the main issues raised. The foregoing in order to guarantee the possibility of a comprehensive examination of the judgment under appeal, in light of the characteristics of double compliance. In this regard, the Court recalled that the effective remedy implies that the analysis by the competent authority of a judicial 4 remedy cannot be reduced to a mere formality, but must examine the reasons invoked by the plaintiff and expressly state them. In this sense, the Court found that the First Transitory Criminal Chamber resolved the appeal for annulment, raised by Mr. Zegarra Marín during the hearing held on November 8, 1996, merely confirming the considerations of the first instance sentence, without pronounce on the main arguments presented by the appellant.

The Court considered that, since the recursive instance did not guarantee in practice a comprehensive review of the conviction, in the specific case this remedy was ineffective. Consequently, it concluded that the State violated the right to appeal the judgment before a judge or higher court, provided in Article 8.2 (h), as well as Article 25 of the Convention, while it did not have an effective remedy to protect the violated rights. Regarding the adequacy of the appeal for review, the Court considered that, at the time of the facts, this appeal was not the mechanism provided by the Peruvian legislation to generally challenge the conviction, as it consisted of an extraordinary appeal that operated under exhaustive grounds, and Mr. Zegarra Marín’s claim did not comply with them, so it did not consist of the appropriate remedy for the specific case. In virtue of the foregoing, it was not appropriate to analyze the effectiveness of the appeal for review, so the State was not found responsible for the violation of Article 25.1 of the Convention. Finally, with reference to the alleged violation of Article 2 of the American Convention, in relation to the appeals under analysis, the Court considered that said argument by the representatives was made out of time, and therefore did not rule on it. IV. Reparations The Court determined the following measures of integral reparation. As a measure of Restitution: (i) that the conviction issued in the criminal proceedings against Mr. Zegarra Marín has no legal effect regarding the victim of the case, and therefore that the State must adopt all necessary measures to nullify the consequences that derive from it, as well as the judicial or administrative, criminal or police records that existed against it as a result of said process; As a measure of Satisfaction: (ii) that the State must publish this judgment and its official summary; and as compensatory compensation: (iii) you must pay the amount set in the Judgment for non-pecuniary damage, for reimbursement of expenses and costs, and for reimbursement of the expenses of the victim assistance fund. The Inter-American Court of Human Rights will monitor full compliance with the Judgment, in exercise of its powers and in compliance with its duties under the American Convention on Human Rights, and will consider the case closed once the State has fully complied with the provisions of the Judgment. (IACHR, 2017)

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