35
92.
On the other hand, the State highlighted that “1) since the petitioners
attacked soldiers of the armed forces with firearms, and before their arrest was
confirmed, military personnel reported the situation to the General Headquarters of
the 35th military zone; 2) on May 3, several different authorities went to the
community of Pizotla, where the events occurred, apart from the military forces.
These authorities were: a deputy prosecutor of the Attorney General’s Office of the
State of Guerrero, an assistant of the Public Prosecutor’s Office of Coyuca de
Catalán, and an expert witness in field forensics, who were able to verify the
conditions of the detention of the petitioners; 3) that the geographic location of the
town of Pizotla, the prevailing insecurity in the region, and the time at which the
arrest took place did not allow the transfer of detainees to the offices of the
competent authority or its mobilization to the place of the facts [but until] the night
of May 3,” and “4) as evidenced by the records, during the entire time that the
petitioners were guarded by soldiers, they could be visited by their relatives and
even they communicated with them.” Therefore, the State indicated that in order
to set a time limit for a detainee to be placed at the disposal of a judicial authority,
it is necessary to analyze "the behavior in light of the precepts established in the
[Mexican] Constitution, as well as the general legal framework of the legal
matters.” On the other hand, the State emphasized that the alleged victims “were
held in custody by the soldiers from May 2, 1999 at 4:30 P.M. to May 4 at 6: 00
P.M, until they were formally brought before the competent authority” and it
claimed that the Public Prosecutor’s Office, as the competent authority, “assigned
the investigation to the judicial body on May 6, 1999 at 6:06 P.M., exceeding by
[only] six minutes the constitutional term.” Lastly, the State indicated that “Messrs.
Montiel and Cabrera were arrested in flagrant possession of illegal weapons [used]
by them against their captors.”
93.
Regarding the previous arguments, the Tribunal recalls that the first part of
Article 7(5) of the Convention sets forth that the detention of a person shall be
promptly subjected to judicial review. To this end, the Court has pointed out that
another measure that seeks to prevent arbitrary treatment or illegality is
immediate judicial control, taking into account that under the rule of law the judge
must guarantee the rights of the detainee, authorize taking precautionary or
coercive measures, when strictly necessary, and generally seek a treatment that is
consistent with the presumption of innocence in favor of the accused until his or
her responsibility has been proven.123
94.
In relation to the formalities that must be met during a detention, article 16
of the Mexican Constitution, at the time that the facts occurred, established that:124
No one can be bothered in regards to their person, family, home, papers or
possessions, unless by virtue of the written mandate of a competent authority
that provides grounds for the legal cause of the proceeding.
[…]
In cases where the person has been caught in flagrante, any person may
detain the suspect and shall, without delay, hand over the suspect to the
immediate authority, which shall just as swiftly hand the suspect over to the
Office of the Public Prosecutor.
123
Cf. Case of Bulacio V. Argentina. Merits, Reparations and Costs. Judgment of September 18,
2003. Series C No. 100, para. 129; Case of Yvon Neptune v. Haití, supra note 49, para. 107; and Case
of Bayarri v. Argentina. Preliminary Objections, Merits, Reparations and Costs. Judgment of October 30,
2008. Series C Nº 187, para. 63.
124
Cf. Article 16 of the Political Constitution of the United Mexican States, quoted in the judgment
handed down on August 14, 2002 by the Second Collegiate Tribunal, supra note 84, folio 14436. Cf.
Political Constitution of the United Mexican States (record of annexes to the answer to the application,
annex 3 filed in digital format).
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