elements established in the law, and the inexistence of a subsequent obligation to justify a search or confiscation, regardless of the results obtained, created a broad margin of discretionality that led to an arbitrary application of the powers of the police authorities, which was endorsed by a judicial practice that validated such detentions based on general criteria such as crime prevention or ex post by the evidence obtained. 98. Accordingly, as the State accepted in its acknowledgment of international responsibility, the actions of the authorities in this case formed part of a generalized context of arbitrary interventions by the police authorities in Argentina that was incompatible with the American Convention. The broad way in which the conditions for carrying out the interception of a car or a detention for identification purposes without a court order are worded, and the practice by the state authorities – both police and judges - when applying those conditions, represents, among other matters, a problem in the design of the law, because it failed to avoid the arbitrariness of the detentions and the abuse of authority against Messrs. Fernández Prieto and Tumbeiro and, to the contrary, could even encourage this. In this regard, the Court notes the opinion of expert witness Sofia Tiscornia that: […] the police were and are enabled to detain people [without a court order or in a situation of flagrante delicto] based on the organic laws and different administrative protocols, under mechanisms for detention for purposes of identification, and in procedures such as raids, searches and police roadblocks. In addition, imprecise criteria were repeated in the procedural codes that legally enabled these police intervention practices. Thus, although such practices are regulated, the regulations are imprecise, and most of the population are unaware of their limits and conditions; added to this, a history of military and police authoritarianism has normalized the powers of the police, in particular, in relation to the poorest groups or to control political and social activism.127 99. The Court recalls that Article 2 of the Convention establishes the general duty of the States Parties to adapt their domestic laws to its provisions in order to ensure the rights that it recognizes. This duty involves the adoption of two types of measures. On the one hand, the elimination of laws and practices of any kind that entail a violation of the guarantees established in the Convention; on the other, the enactment of laws and the implementation of practices leading to the effective observance of the said guarantees.128 It is precisely with regard to the adoption of these measures that the Court has recognized that all the authorities of a State Party to the Convention have the obligation to exercise a control of conventionality,129 so that the application and interpretation of domestic law is consistent with the State’s international obligations in the area of human rights. 130 100. Regarding control of conventionality, the Court has indicated that when a State is a party to an international treaty such as the American Convention all its organs, including its judges, are subject to that instrument and this obliges them to ensure that the effects of the provisions of the Convention are not impaired by the application of norms that are contrary to its object and purpose. The judges and organs involved in the administration of justice at all its levels are obliged to exercise, ex officio, a “control of conventionality” between domestic Opinion provided by Sofía Tiscornia before the Inter-American Court during the public hearing held on March 11, 2020. 127 Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, reparations and costs. Judgment of May 30, 1999. Series C No. 52, para. 207, and Case of Petro Urrego v. Colombia. Preliminary objections, merits, reparations and costs. Judgment of July 8, 2020. Series C No. 406, para. 111. 128 Cf. Case of Almonacid Arellano et al. v. Chile. Preliminary objections, merits, reparations and costs. Judgment of September 26, 2006. Series C No. 154, para. 124, and Case of Petro Urrego v. Colombia, supra, para. 111. 129 Cf. Case of Andrade Salmón v. Bolivia. Merits, reparations and costs. Judgment of December 1, 2016. Series C No. 330, para. 93, and Case of Petro Urrego v. Colombia, supra, para. 103. 130 32

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents