6.
The petitioner indicated that the situation of Messrs. Fernández and Tumbeiro fits within a
context in which police agents in Argentina, based on the argument of “suspicious attitude,” arrest persons who
have a similar profile: youths from poor families, street vendors, immigrants, and beggars. The petitioner
alleged that such practices make it clear that there are persons from certain social sectors, or who due to their
physical appearance, are more exposed to being detained by the police, which is a clear sign of the selective
nature of the criminal justice system and mainly of the current police apparatus.
7.
Regarding the alleged violation of the right to personal liberty, the petitioner indicated that
the detentions of Messrs. Fernández and Tumbeiro were illegal and arbitrary and, as indicated, were not based
on a judicial warrant or a situation of flagrancy. It added that the criterion put forward by the State, a
“suspicious attitude,” is not established in Argentine legislation. It also noted that this practice leaves a wide
margin of police discretion for making arrests.
8.
With respect to the alleged violation of the rights to judicial guarantees and judicial
protection, the petitioner alleged that the judicial authorities did not offer the alleged victims an effective
remedy for reviewing the illegality and arbitrariness of the arrests. It added that this led to the institution of
criminal proceedings which, in each case, culminated in convictions.
B.

Position of the State

9.
The State has not submitted its observations on the merits. The IACHR recapitulates the
arguments presented during the admissibility phase to the extent relevant for the analysis on the merits.
10.
The Argentine State argued that it is not internationally responsible insofar as the arrests of
the alleged victims were legal and in keeping with the American Convention. The State argued that the decision
of the police agents to intercept the vehicles in which Messrs. Fernández and Tumbeiro were traveling was due
to their “suspicious attitude.” It added that the police agents had the experience for identifying irregular
activities based on persons’ conduct, information received, or complaints, thus the alleged victims’
identification was requested, and their automobiles were searched.
11.
The State argued that the arrest and subsequent institution of criminal proceedings against
the alleged victims was due to the seizure of drugs and weapons that were in their vehicles. It argued that this
was on record in a report and that the alleged victims were informed of the reasons for their arrest.
12.
The State also said that the criminal proceedings and consequent convictions all took place
respecting due process guarantees. It indicated that the IACHR cannot rule on the judgments handed down in
those proceedings, for in that case it would be sitting as a court of fourth instance.
IV.

FACTS PROVEN

A.

Relevant law

13.

Article 18 of the Constitution of Argentina provides:

No inhabitant of the Nation may be punished without previous trial based on a law enacted
before the act that gives rise to the process, nor tried by special committees, nor removed from
the judges appointed by law before the act for which he is tried. Nobody may be compelled to
testify against himself, nor be arrested except by a written warrant issued by a competent
authority. The defense by trial of persons and rights may not be violated. The domicile may
not be violated, as well as the written correspondence and private papers; and a law shall
determine in which cases and for what reasons their search and occupation shall be allowed.

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