404. First, the Court finds it pertinent to recall that Article 7 of the American Convention
protects against illegal or arbitrary interference with physical liberty. 612 Even when a
detention is made for identification purposes or to ensure public safety and order, it must
comply with all the guarantees of Article 7 of the Convention. 613
405. Regarding the situation of Mr. Quijano, the Court notes that the State has argued that
he was retained under articles 23 and 28 of the Constitution in force at that time, which
permitted administrative retention by authorities of the Executive Branch without judicial
control to ensure national security. 614 The State also referred to a series of norms of the
National Police Code that allegedly permitted the retention of Mr. Quijano “for identification
purposes.” 615 The Court notes that the State provided information on the said legal norms
for the first time in its brief with final arguments in which, however, it did not specify the
norm that was applicable to the retention of Mr. Quijano or provide the Court with a
copy. 616 Merely listing all the norms that might be applicable does not meet the
requirements of Article 7 of the Convention. 617 For the Court to assess the lawfulness of a
deprivation of liberty pursuant to the American Convention, the State must prove that this
deprivation of liberty was carried out in accordance with the pertinent domestic law, as
regards both the reasons and the procedure. Nevertheless, in addition to the fact that the
State’s argument was time-barred, the Court points out that none of the official documents
relating to the retention of Mr. Quijano based this deprivation of liberty on the said norms of
the Police Code (infra para. 406). The Court also notes that article 28 of the Constitution
referred to by the State required an “order of the Government and prior opinion of the
Ministers” and established that it was admissible in the case of “persons against whom
612
Cf. Case of Chaparro Álvarez and Lapo Íñiguez v. Ecuador. Preliminary objections, merits, reparations and costs.
Judgment of November 21, 2007. Series C No. 170, para. 53, and Case of Torres Millacura et al. v. Argentina. Merits,
reparations and costs. Judgment of August 26, 2011. Series C No. 229, para. para. 76.
613
Similarly, see, Case of Torres Millacura et al. v. Argentina. Merits, reparations and costs. Judgment of August 26,
2011. Series C No. 229, para. 76, and Vélez Loor v. Panama. Preliminary objections, merits, reparations and costs.
Judgment of November 23, 2010. Series C No. 218, para. 116.
614
The said norms establish the following: “Article 23. No one may be subjected to interference with his person or
his family, to arrest, detention or imprisonment, or to search of his home, unless it is by a written order issued
by a competent authority, with the legal formalities and for a reason previously established by law. No one shall
be detained, imprisoned or arrested for debts or merely civil obligations, without a court order.” Article 28. Even
in time of war, no one may be punished ex-post facto, but only in accordance with the law, order or decree in which
the act has previously been prohibited and the corresponding penalty established. This provision does not prevent,
even in time of peace but when there are significant reasons to fear a disturbance of public order, anyone against
whom there are significant indications that he or she is jeopardizing public peace being apprehended and retained, by
order of the Government and prior opinion of the Ministers.” Neither of the parties nor the Commission provided a
copy of these norms. However, the Court extracted the text of these norms from briefs of the Commission and the
State and from the Report of the Truth Commission, which cite these norms consistently. Cf. Merits Report (merits file,
folios 119 and 120); brief with final arguments of the State (merits file, folio 4341), and Report of the Truth
Commission (evidence file, folio 38).
615
In particular, the State referred to articles 56, 66, 69, 71, 86, 87 and 95 of the National Police Code (Decree
1355 of 1970), as norms that allegedly authorized the administrative retention of Mr. Quijano, without specifying
which of them had been applied in Mr. Quijano’s retention.
616
The State’s answering brief did not include specific arguments on the supposed lawfulness of the detention of
Orlando Quijano, beyond its supposed reasonableness owing to the situation of public order at that time. In this
regard, the State indicated that, in response to the violent action of an illegal armed group, some individuals could be
suspected of belonging to the group that took part in the events, and that “with regard to them, and owing to the
extreme nature of the situation, it cannot be claimed that no one was suspicious, nor can the word suspect be
stigmatized. When people were considered to be suspicious, they were sent to the police stations or to the SIJIN to
be crosschecked against the lists of persons for whom an arrest warrant had been issued, or arrangements were
made with the judicial authorities” (merits file, folio 1743).
617
Cf. Vélez Loor v. Panama. Preliminary objections, merits, reparations and costs. Judgment of November 23,
2010. Series C No. 218, para. 116.
140
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