120. That the events of July 11, 1997, and February 28, 2000, constituted deprivations of
liberty is not disputed. The State has denied, however, that Mr. Cortez was detained in
January of 1997, maintaining instead that the events were an “appearance proceeding” (supra
para. 106). Mr. Cortez stated that he had been detained after being shown a detention order
from a military prosecutor (supra para. 45). In any case, the Court holds that the arrest of
an individual, even when not directly for the purpose of detaining them, but for other
purposes, does limit their freedom of movement, and should therefore be analyzed in relation
to the right to personal liberty. 103 Hence, the circumstances of January 1997, as well as those
of July 11, 1997, and February 28, 2000, will be analyzed with respect to Article 7 of the
Convention.
B.1.1 Unlawfulness of the detentions
121. This Court has stated that if domestic laws, whether in the material aspect or the
formal aspect, are not observed in the deprivation of a person’s liberty, that deprivation is
unlawful and contrary to the American Convention, pursuant to Article 7(2). 104
122. The above-mentioned constitutional provisions (supra para. 37) in effect in Ecuador at
the time of the events required a written order from a competent authority for a deprivation
of liberty.
123. The detentions of Mr. Cortez in January and July of 1997 were ordered and carried out
by military authorities in the context of military proceedings. They were declared null and
void by the military justice system itself due to a lack of jurisdiction (supra para. 59). Those
two detentions thus did not meet the requirement, established in the applicable domestic law,
of being ordered by a competent authority. They were therefore unlawful. Moreover, in July
of 1997, Mr. Cortez was in solitary confinement for at least 17 days. The expert witness
Román Márquez pointed out that Article 29 of the Code of Military Criminal Procedure required
solitary confinement for arrested individuals until their initial formal statement had been
received. 105 However, the constitutional text permitted a maximum of 24 hours of solitary
confinement. The duration of Mr. Cortez’s solitary confinement thus constitutes an additional
element of unlawfulness. It is unnecessary to assess additional arguments related to the
unlawfulness of the detentions of 1997.
124. In addition, the Constitutional Court found that the detention of Mr. Cortez on February
28, 2000, did not meet the requirements established in the applicable legal order, as written
detention orders had not been issued. In fact, the evidence shows that the Constitutional
Court declared on May 9, 2000, that the detention was carried out “even though an order for
his detention had not been issued by the judge with jurisdiction” (supra para. 68). The InterAmerican Court is in agreement with the Constitutional Court that the February 28, 2000,
deprivation of Mr. Cortez’s liberty was unlawful. 106
The Court held the same view on other occasions, such as in cases in which the police acted with the aim of
“identification” (cf. Case of Azul Rojas Marín et al. v. Peru. Preliminary objections, merits, reparations, and costs.
Judgment of March 12, 2020. Series C No. 402, paras. 110–135, and Case of Fernández Prieto and Tumbeiro v.
Argentina. Merits and reparations. Judgment of September 1, 2020. Series C No. 411, paras. 76–101).
104
Cf. Case of Gangaram Panday v. Suriname. Merits, reparations, and costs. Judgment of January 21, 1994.
Series C No. 16, para. 47, and Case of González et al. v. Venezuela. Merits and reparations. Judgment of September
20, 2021. Series C No. 436, para. 95
105
Written expert opinion of Álvaro Francisco Román Márquez (evidence file, folios 1104–1137). Article 29
states: “[...] The suspect will be held in solitary confinement before making the initial formal statement.”
106
This Court would like to clarify that, in the context of its jurisdiction and functions, its assessment is not
determined by the decisions of domestic legal authorities, but that these decisions can be considered (cf. Case of
Movilla Galarcio et al. v. Colombia. Merits, reparations, and costs. Judgment of June 22, 2022. Series C No. 462,
para. 122) This Court notes that there is no evidence that the Constitutional Court’s decision of May 10, 2000—which
was based on an interpretation of the requirements set forth in applicable domestic law for the deprivation of liberty—
103
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