23
[…]
54.
The second Principle of the United Nations’ Body of Principles for the Protection
of All People Submitted to Any Form of Detention or Imprisonment states that
the arrest, detention, or imprisonment will only be carried out in strict compliance of the
law and by the competent officials or the people authorized to do so.55
55.
On its part, the fourth Principle of the same international instrument states that
[a]ll form of detention or imprisonment and all measures that affect the human rights of
the people submitted to any form of detention or imprisonment must be ordered by a
judge or other authority, or remain subject to the effective control of a judge or another
authority.56
56.
This Court has indicated that the protection of freedom safeguards “both the
physical liberty of the individual and his personal safety, in a context where the
absence of guarantees may result in the subversion of the rule of law and deprive
those detained of the minimum legal protection.”57
57.
The Court has also stated, regarding subparagraphs 2 and 3 of Article 7 of the
Convention, related to the prohibition of illegal detentions or arrests, that:
[a]ccording to the first of these regulatory provisions [Article 7(2) of the Convention], no
one shall be deprived of his personal liberty except for reasons, cases or circumstances
specifically established by law (material aspect) but, also, under strict conditions
established beforehand by law (formal aspect). In the second provision [Article 7(2) of the
Convention], we have a condition according to which no one shall be subject to arrest or
imprisonment for causes or methods that – although qualified as legal – may be
considered incompatible with respect for the fundamental rights of the individual, because
they are, among other matters, unreasonable, unforeseeable or out of proportion.58
58.
The Ecuadorian Constitution in force at the time of the arrest of the alleged
victim indicated in its Article 19(17)(h) that:
nobody would be imprisoned except in virtue of a written order from a competent
authority, in the cases, for the time, and with the formalities established by law, except in
the case of a crime detected in the act, in which case they may not be held without form of
trial for more than 24 hours […]
59.
On its part, the Code of Criminal Procedures of Ecuador of 1983, in force at the
time of the facts, indicated in its Article 174 that:
[i]n case of a crime detected in the act any person could capture the perpetrator and take
him before the Competent Judge or an Agent of the National Police or Judicial Police. In
55
U.N., Body of Principles for the Protection of All People Submitted to Any Form of Detention or
Imprisonment, Adopted by the General Assembly in its determination 43/173, of December 9, 1998,
Principle 2.
56
U.N., Body of Principles for the Protection of All People Submitted to Any Form of Detention or
Imprisonment, supra note 55, Principle 4.
57
Cfr. Case of Tibi, supra note 6, para. 97; Case of the Gómez Paquiyauri Brothers. Judgment of July
8, 2004. Series C No. 110, para. 82; and Case of Maritza Urrutia. Judgment of November 27, 2003. Series C
No. 103, para. 64.
58
Cfr. Case of Tibi, supra note 6, para. 98; Caso of the Gómez Paquiyauri Brothers, supra nota 57,
para. 83; and Case of Maritza Urrutia, supra note 57, para. 65.