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
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos