4
in a situation of in flagrante. Both extremes are admissible, although each of them is
governed by its own rules. Pursuant to its grammatical meaning, the characteristic of
in flagrante generates a state of notoriety or evidence that seems to avoid the need to
comply with other duties: among them, the information regarding the motives for the
State’s intervention in the individual’s liberty. I think that this conclusion is erroneous.
The guaranteeing nature of the norm included in Article 7(4) (justification for the
State’s behavior and defense of the individual) is better attended if the obligation to
inform is complied with without being subject to distinctions or deliberations that are
not based on the precept nor are they necessarily based on reality.
13.
The in flagrante nature –concept that, in all the rest, does not have a uniform
scope within all legislations nor a unique and pacific characterization in the doctrine
and jurisprudence – that is presented in a case may be enough for the person who
carries out the arrest, but insufficient for who suffers it. The interpreter of the norm,
who tries to find its best –and always sensible—scope, weighing in the repercussions
and applications of each possible interpretation, must give it the meaning that lets it
reach, in the totality or at least in the majority of the cases, taking into account the
conditions of the reality, the purpose seeked. One should also keep in mind that the
information on the motives for the arrest do not only inform that the State’s agent
considers that certain facts have occurred, but it also implicitly means that they are
illicit or reprehensible, all of them considerations that concern the justification of the
State and the individual’s defense.
14.
This decision made by the Court implies a change of criterion with regard to
the one held in the Judgment of the Case of Acosta Calderón (Judgment of June 24,
2005, Series C, No. 129, para. 73), in which this Tribunal stated that when there
someone is caught committing a crime in the act it is not necessary to inform the
detainee of the reasons for his arrest. I applaud this change of criterion by the Court. I
celebrate it for two reasons: because I consider that a court must be sensible to the
need to modify its opinions when it considers there is reason to do so, and because in
this specific case I believe that this modification is completely justified. In what
remains, in this case the Court did not even mention –which would be a valid approach
that could motivate reflection – if there were extraordinary reasons for the fact that
the agents that carried out the arrest abstained from giving the detainee the
information ordered by Article 7(4) of the Pact.
III.
THE MATTERS OF THE PROCEDURE
15.
The Judgment of the Case of López Álvarez has also referred to the matters of
the procedure --and, at its time, of the process, as is seen in this case--, which
constitutes the substantive reasons why the State does what it is doing: restrict rights
and liberties and act, through its authorities, in such a way that it may result in greater
restrictions or deprivations, for which a justification must always be clearly established.
This consideration leads to the obligation to precise with adequate means of evidence –
that is, admissible, sufficient, and persuasive—the existence of the body of the crime,
pursuant to the codes that so mention it, or of the elements included in the criminal
definition, which must be proven, first for the trial itself (even though complete
verification is not demanded at that time), and then, the judgment (which is made
based on convincing evidence that prevails over a reasonable doubt).
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