and 7(2) of the Convention, in relation to Article 1(1) of this instrument. Also, the fact that
the detention was not based on objective criteria, but rather on the application by the police
officers of stereotypes relating to Mr. Tumbeiro’s appearance and its presumed lack of
correlation to his surrounding signified that the police intervention was a discriminatory and,
consequently, arbitrary action that violated Articles 7(3) and 24 of the American Convention,
in relation to Article 1(1) of this instrument.
B.1.3. Inadequacy of the law and existence of a practice that violated the
Convention in both cases
88.
The Court recalls that, in its Merits Report, the Inter-American Commission observed
that the regulation that granted the authority applied in this case was “extremely vague and
d[id] not include specific references to objective reasons or parameters that could potentially
justify suspicion. In addition, the legislation d[id] not include any requirement that the police
authorities be accountable, in writing and to their superiors, with details of the reasons that
led to the arrest and search. In addition, from the context described in the section on proven
facts, it appear[ed] that the incidents in this case [were] not isolated, but rather that this
regulation and its application in practice ha[d] resulted in abusive actions by the police.”118
The State accepted this conclusion in its act of acknowledgement of responsibility.
89.
In this regard, the Court recalls that Article 7(2) of the Convention requires not only
the existence of regulations that establish the “causes” and “conditions” that authorize the
deprivation of physical liberty, but also that these be sufficiently clear and detailed, so that
they respect the principle of legality and prior legal definition of offenses as this has been
understood by this Court in its case law. In this regard, the Court has indicated that “the
categorization of an act as unlawful and the establishment of its legal effects must pre-exist
the conduct of the individual who is considered to be an offender because, to the contrary,
people would not be able to conduct themselves in keeping with a valid known legal system
that expresses social rebuke and its consequences.”119
90.
The Court considers that regulations that determine the powers of police officials in
relation to crime prevention and investigation must include specific and clear indications of
parameters that avoid interceptions of a car or detentions for identification purposes being
carried out arbitrarily. Consequently, those provisions that include and enable conditions that
permits a detention without a court order or in flagrante delicto, in addition to meeting the
requirements of legitimate purpose, appropriateness and proportionality, must establish the
existence of objective elements so that it is not mere police intuition or subjective criteria,
that cannot be verified, that are the reasons for a detention. This means that the purpose of
the legislation enabling this type of detention must be for the authorities to exercise their
powers when faced with the existence of real, sufficient and concrete acts or information that,
concurrently, would permit an objective observer to reasonably infer that the person detained
was probably the perpetrator of a criminal offense or misdemeanor. This type of regulation
should also observe the principle of equality and non-discrimination in order to avoid hostility
towards certain social groups based on categories prohibited by the American Convention.
91.
On this point, the Court notes the opinion of expert witness Juan Pablo Gomara that,
faced with the need to establish a standard of proof as a presumption for police action during
118
Merits report (merits file, folio 22).
Case of Norín Catrimán et al. (Leaders, members and activist of the Mapuche Indigenous People) v. Chile,
supra, para. 106, and Case of Pollo Rivera et al. v. Peru. Merits, reparations and costs. Judgment of October 21, 2016.
Series C No. 319, para. 219.
119
29
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents