J.’s detention; (A.4) the preventive detention of the presumed victim and its relationship to the principle of the presumption of innocence, and (A.5) the right to have recourse to a competent judge or court to contest the legality of her preventive detention. A.1 The initial arrest of the presumed victim, her presentation before a judge, and protection of the home A.1.1) Arguments of the Commission and of the parties 133. The Commission argued that ‘there is sufficient evidence to conclude that the search of the Las Esmeraldas building was illegal, because the security forces did not have an arrest warrant; the presence of a representative of the Public Prosecution Service is uncertain and there are inconsistencies among the different versions, without the State having met the corresponding burden of proof.” It also indicated that “[t]he case file does not contain […] information that would allow the conclusion to be reached that a situation of flagrante delicto existed when the security forces arrived at the Las Esmeraldas building.” It emphasized that the supposed state of emergency cited by the State “was inconsistent with the argument on the application of the constitutional mechanism of flagrante delicto,” and that, regardless of this, “at the time of the facts, there was a constitutional and legal hiatus during which the states of emergency were no longer the excuse for the restriction and suspension of rights.” In addition, it considered that the “use of unjustified violence is a sufficient factor to conclude that the deprivation of liberty of Ms. J. and the search of the Las Esmeraldas building was arbitrary.” It argued that the State “has not explained the nature of the risk or identified factual elements that allow it to be concluded that the use of force to arrest the [presumed] victim was necessary and proportionate to a specific danger to the life or integrity of the State agents.” The Commission also stressed that “Decree 25,475 established the requirement to inform the judge when detention in the DINCOTE for a maximum of 15 days was ordered,” and this “evidently contravened the provisions of Article 7(5) of the Convention,” without it being relevant whether Ms. J. was detained 15 or 17 days in the DINCOTE. In addition, bearing in mind that the said alleged violation “took place because […] Decree 25,475 was in force,” the Commission concluded that the State had violated Article 2 of the Convention. It also concluded that the considerations made on the arbitrary nature of the detention were applicable to the searches, so that these, in addition to being illegal, constituted “an arbitrary interference in the private life of Ms. J.” 134. The representative argued that Ms. J. was “arbitrarily detained (in other words, without being in flagrante delicto, or based on a court order).” She also indicated that the detention was carried out when “the constitutional order had been suspended.” She also pointed out that “permanent flagrante delicto” is “an inexistent concept in the vocabulary of international public law.” In addition, she indicated that “prior to April 30 [1992], J. did not see any judge and no charges had been brought against her, because no indictment had been formulated; in other words, she was in police custody for 17 days without a specific charge against her.” In this regard, the representative emphasized that there is no record of where J. was from April 13 to 15, or from April 28 to 30. Furthermore, she asserted that the searches of the buildings of Ms. J.’s family were conducted without the presence of the prosecutor from the Public Prosecution Service, who “was in 231 Lince attending the arrest of another detainee and then in the San Martín district.” 135. The State indicated that, “at the date of the facts of this case, the right to personal liberty was temporally suspended,” so that “it was possible to deprive a person of liberty without a court order or the existence of flagrante delicto, provided that the principles of reasonableness and 231 According to information provided by the State, the building on Las Esmeraldas Street is about 1.2 kilometers from the building on Bartolómé Herrera Street in the Lince district (file of annexes to the State’s brief of August 14, 2013, folios 5555, 5557 and 5558). In addition, according to the representative, the San Martín district “is approximately […] two and a half hours from where J. was arrested.” 43