I/A Court H.R., Case of Ruano Torres et al. v. El Salvador. Merits, Reparations and Costs. Judgment of October 5, 2015. Series C No. 303.

Non official brief

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

 

 

Facts – The applicant, José Agapito Ruano Torres, was convicted to fifteen years in prison for the kidnapping of a public bus driver, despite serious doubts as to whether he was indeed the person nicknamed El Chopo, who, according to a statement rendered by another person under investigation, had allegedly participated in the offence. Public defenders were appointed to represent the applicant during the course of the criminal proceedings.

 

During the identification parade, the victim of the offence expressed certainty that the applicant was one of the persons who committed the crime. However, on various occasions during the proceedings, evidence was offered in order to show that the applicant was not the person nicknamed El Chopo and that he had been working on re- building a school at the time of the kidnapping. The judge of first instance and the sentencing court refused to receive this evidence, either because it was deemed “not essential,” or on the grounds that it was time-barred.

 

At the trial hearing, the victim named all defendants present as responsible for his abduction. The applicant remained silent, but when he was granted last words, stated that he was not the person nicknamed El Chopo.

 

On 5 October 2001, the sentencing court handed down a conviction against the applicant and other defendants as co-perpetrators of the crime of kidnapping. fte applicant’s public defender did not appeal against the conviction.

 

The applicant filed three applications for review before the sentencing court, all of which were declared inadmissible. On 19 September 2014 the sentencing court upheld the conviction after con- ducting a hearing for review requested by the public defence once the Inter-American Com- mission had issued its report on the merits.

 

In the proceedings of the case before the Inter- American Court, El Salvador acknowledged its international responsibility with a full acceptance of the facts and of the points of law argued by the Inter-American Commission.

Law

 

(a)     Article 8(2) (presumption of innocence) of the American Convention on Human Rights (ACHR), in conjunction with Article 1(1) (obligation to respect and ensure rights) – Since the beginning of the investigation and throughout the criminal proceedings multiple elements raised questions about the applicant’s identity as El Chopo. However, the applicant was convicted without police, investigative or judicial authorities adopting minimum proceedings to remove the doubts generated about his identity or to ensure the appearance of the person who could actually be El Chopo. The Inter- American Court held that in situations where reasonable arguments existed as to the non- participation of one of the accused in the offence, the presumption of innocence should prevail.

 

The Court also noted that two pieces of evidence had determined the outcome of the criminal proceedings: the “unanimous and coinciding statements” of the victim of the offence and a co- defendant who benefited from the application of the opportunity principle. The Court found that there was no justification, in criminal procedural terms, for having received the statement of the latter in pre-trial proceedings, without the other co-defendants having had the opportunity to exercise their right to defence and cross-examination. The Court also highlighted the limited probative value of the declaration of a co-defendant when it is the only evidence on which a decision of conviction is based, as it objectively would not be enough by itself to rebut the presumption of innocence. Therefore, basing a conviction solely on a statement by a co-defendant with no other corroborating elements violated the presumption of innocence. In this case, the other evidence assessed by the sentencing court was the applicant’s identification during the identification parade and at the public hearing. However, the State had acknowledged irregularities in the identification parade and that the victim of the offence had previously viewed the defendants on various media. Therefore, the Court found the State responsible for the violation of the presumption of innocence.

Conclusion: violation (unanimously).

 

(b)     Articles 8(1), 8(2)(d) and 8(2)(e) of the ACHR (right to be heard and defence through public legal counsel), in conjunction with Article 1(1) – The Inter-American Court affirmed that the right of defence is a central component of a fair trial. It recalled that the right of defence is exercised in two ways within the criminal proceedings: (i) by the acts of the accused, mainly by the possibility of providing an unsworn statement concerning the acts attributed to him and, (ii) by means of a technical defence, by a lawyer who counsels the person under investigation.

 

Subparagraphs (d) and (e) of Article 8(2) of the ACHR indicate that the accused has the right “to defend himself personally or to be assisted by legal counsel of his own choosing” and, if he does not do so, he has “the inalienable right to be assisted by counsel provided by the State, paid or not as the domestic law provides.”

 

The Court held that although these provisions establish different options for the design of the mechanisms to guarantee these rights, in criminal cases – in which the technical defence is an in- alienable right, owing to the significance of the rights involved and the intention to ensure both equality of arms and total respect for the presumption of innocence – the right to a lawyer to exercise the technical defence in order to participate in the proceedings adequately means that the defence counsel provided by the State is not limited merely to those cases where there is a lack of resources. In this regard, the Court recognised that a distinctive feature of most of the State Parties to the ACHR is the development of an institutional framework and public policy that ensures, at all stages of the proceedings, the inalienable right to a technical defence in a criminal case by public defenders. In this way, States have contributed to ensuring access to justice to the most disadvantaged, upon whom the selectivity of criminal proceedings generally operates.

 

However, the Court noted that appointing a public defender merely in order to comply with a procedural formality would be equal to not providing a technical defence; thus, it is essential that this defender act diligently in order to protect the accused’s procedural guarantees and prevent his rights from being impaired and breaching the relationship of trust. To this end, the Court found that the public defence, as the means by which the State ensures the inalienable right of everyone accused of an offence to be assisted by legal counsel, must have sufficient guarantees to enable it to act efficiently and with equality of arms to the prosecution. The State must take all necessary measures in order to comply with this duty. These include having qualified and trained defenders who can act with functional autonomy.

 

In the present case, it was argued that the technical defence provided by the State did not act efficiently. In El Salvador, the Public Defence Unit was part of the Office of the General Prosecutor. As a State organ, its conduct should be considered an act of the State. However, the Inter-American Court established that the State cannot be considered responsible for all public defence failures, in light of the independence of the profession and the professional opinion of the counsel for the defence. Furthermore, it found that as part of the State’s duty to ensure an appropriate public defence, it must implement a proper selection of public defenders, develop controls on their work, and provide periodic training.

 

In order to evaluate a possible violation of the right of defence by the State, the Court analysed whether the act or omission of the public defender constituted inexcusable negligence or an evident error in the exercise of the defence that had or could have had a decisive negative effect on the interests of the accused. The Court indicated that it would need to examine the proceedings as a whole, unless a specific act or omission was so serious that it constituted by itself a violation of the guarantee. In addition, it clarified that a non-substantial disagreement with the defence strategy or with the result of a proceeding would not be sufficient to impair the right of defence; rather, inexcusable negligence or an evident error would have to be proved.

 

In the present case, the Court found that the public defenders representing the applicant did not argue the nullity of the irregularities verified at the identification parade, which was the foundation for his conviction, and failed to file an appeal against the conviction, thus preventing him from obtaining a comprehensive review of his sentence. The Court concluded that such omissions constituted a violation of the defendant’s inalienable right to be assisted by legal counsel.

 

The Court further noted that the State’s inter- national responsibility may also be triggered by the response of judicial organs to the acts and omissions of the public defender. Judicial authorities have an obligation of protection and control in order to ensure that the right of defence does not become illusory due to ineffective legal assistance. Thus, the international responsibility of the State will also be established if the inexcusable negligence or manifest error of the defence should have been evident to judicial authorities, or they were in- formed of this and failed to take necessary and sufficient measures to prevent and/or rectify the violation of the right of defence.

 

In the instant case, the Court found that the flagrant errors in the performance of public de- fenders and the lack of an adequate and effective response by the judicial authorities had left the applicant in a state of total defencelessness, aggravated by the fact that he was deprived of his liberty during the entire criminal proceedings. Under those circumstances, the Court held that he was not heard with due guarantees.

Conclusion: violation (unanimously).

 

(c)      Other violations of rights enshrined in the ACHR – The Inter-American Court also found violations of Articles 5(1) and (2) (right to personal integrity and the prohibition of torture), 7(1), (3) and (6) (right to personal liberty) and 25(1) (right to judicial protection) of the ACHR, in conjunction with Article 1(1) thereof, to the applicant’s detriment (unanimously).

 

Lastly, it found a violation of Article 5(1) (personal integrity) of the ACHR, in conjunction with Article 1(1) thereof, to the detriment of his next- of-kin (unanimously).

 

(d)     Reparations – The Inter-American Court established that the judgment constituted per se a form of reparation and ordered that the State: (i) initiate and conduct effectively, in a reasonable time, the investigation and the criminal proceedings against those responsible for the alleged acts of torture against the applicant; (ii) determine the responsibility of the public defence agents that contributed to the violation of the applicant’s human rights; (iii) ensure that the conviction issued against the applicant has no legal effect and, therefore, expunge all judicial, administrative, criminal or police records existing against him in regard to such proceedings; (iv) provide free psychological treatment; (v) provide scholarships in El Salvador’s public institutions to the applicant and his family; (vi) publish the Judgment; (vii) place a plaque in a visible location at the Public Defence Unit headquarters, in order to avoid repetition of events such as those in the present case; (viii) implement mandatory and permanent training programmes addressed to the National Civil Police on human rights principles and norms, specifically on the investigation and  documentation of torture; (ix) strengthen the selection of appropriate public defenders and develop protocols to ensure the efficacy of the public defence in criminal proceedings; (x) adopt or strengthen training programmes addressed to public defenders; and (xi) pay the amounts stipulated in the Judgment as compensation for pecuniary and non-pecuniary damage.