coercive measures, when strictly necessary, and in general make sure that the accused is treated in a manner
consistent with the presumption of innocence.57
60. Regarding this guarantee, in its Report on the Situation of Persons Deprived of Liberty in the Americas,
the Commission considered the following:
"[T]he single most important protection of the rights of a detainee is prompt appearance before a judicial
authority
responsible
for
overseeing
the
detention.
And that the right to request a decision on the lawfulness of the detention is the fundamental guarantee of
the
constitutional and human rights of a detainee deprived of his liberty by agents of the State.58
61. Likewise, the Inter-American Court has pointed out that "the terms of the guarantee in Article 7(5) of the
Convention are clear in what refers to the fact that the person arrested must be taken before a competent judge
or judicial authority, pursuant to the principles of judicial control and procedural immediacy." This is" essential
for the protection of the right to personal liberty and to grant protection to other rights, such as life and
personal integrity." The Court has likewise specified that "the simple awareness of a judge that a person is
detained does not satisfy this guarantee, since the detainee must appear personally and give his statement
before the competent judge or authority."59
62. Based on the established facts of the case, Mr. Cortez was deprived of liberty on three occasions: January
21, 1997, July 11, 1997, and February 28, 2000.
63. As regards the legality of those detentions, the Commission notes that from Mr. Cortez's statement it
transpires that in the first he was shown a detention order issued by the Military Prosecutor of the First Air
Force Division On the second occasion, it transpires from the preliminary investigation statement and from his
later accounts he was not shown any order to detain him and was not informed of the reasons for his detention.
The State did not provide any information or documentary evidence to the contrary. On the third occasion, Mr.
Cortez was deprived of liberty after being taken to the Judicial Police. According to his statement, which was
not contested by the State producing any evidence to the contrary, he was only shown the original of the arrest
warrant three days later.
64. Accordingly, the Commission concludes that the second and third detentions were clearly illegal. As for
the first, the Commission observes that the State did not explain the reasons why the Office of the Military
Prosecutor had competence to issue the order to detain Mr. Cortez, particularly given his status as someone
who had retired from the military. For that reason, the Commission considers that that detention was also
illegal. Likewise, judging by Mr. Cortez's description of the detentions and the fact that the State has not
disproved them, the IACHR is of the understanding that there was also a failure to provide detailed information
regarding the reasons for the detentions.
65. As regards judicial oversight of the detention, the Commission notes that, after being deprived of liberty
on July 11, 1997, Mr. Cortez was held incommunicado for 14 days, until he was brought before the competent
judicial authority. The impairments of Mr. Cortez's personal integrity due to the above will be referred to later
on in this report. On this matter, the IACHR underscores that during the aforementioned period the Ecuadorian
State failed to comply with its obligation under the Convention to ensure prompt judicial oversight.
66. In light of the foregoing considerations, the IACHR concludes that the Ecuadorian State is responsible for
violating the rights established in Articles 7.2, 7.4, and 7.5 of the American Convention, in conjunction with the
obligations established in Article 1.1 of the same instrument, to the detriment of Gonzalo Cortez
I/A Court HR. Case of Acosta Calderón v. Ecuador. Merits, Reparations and Costs. Judgment of June 24, 2005. Series C No. 129, par. 61; and
Case of Tibi v Ecuador. Judgment of September 7, 2004. Series C No. 114, par. 76.
58 IACHR, Report on the Human Rights of Persons Deprived of Liberty in the Americas, December 31, 2011, par. 120.
59 I/A Court HR. Case of Acosta Calderón v. Ecuador. Merits, Reparations and Costs. Judgment of June 24, 2005. Series C No. 129, par. 61 [Tr:
78?]; and Case of Tibi v Ecuador. Judgment of September 7, 2004. Series C No. 114, par. 78.
57
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