190. Although the State acknowledged its responsibility for the search of the vehicle in which the
victims were traveling (supra para. 14), at a previous procedural stage it had argued that the search
was done with the consent of the driver, Gerardo Tzompaxtle Tecpile, as was registered in the Report
No. 43/2006, of January 12, 2006, issued by the policemen who were at the scene and, therefore, it
cannot be referred to as a “search.” It added that the agents of the Federal Preventive Police requested
the pertinent documents from Gerardo Tzompaxtle Tecpile, who was not in possession of a driver’s
license as he stated in his statement of January 14, 2006. The different versions as to where they
were headed and the evasion of two of the passengers, added to the above, were considered
reasonable justifications to ask the passengers for permission to search the vehicle.
191. The Court deems it important, as it did in Fernández Prieto and Tumbeiro v. Argentina, 146 to
determine whether the domestic authorities had the authority, either by law of by regulations, to
search the vehicle. On this point, the Court notes that the State did not refer to any norm that enabled
the authorities to search vehicles; it only alluded to the authorization of the driver and to “compliance
of duties.” With regard to what constitutes “a reasonable suspicion” that a crime has been committed,
the European Court of Human Rights has indicated that these words “mean the existence of facts or
information which would satisfy an objective observer that the person concerned may have committed
the offence.” 147
192. Therefore, the search of the vehicle in which the victims were traveling infringed the right to
privacy recognized in Article 11(2), in relation to the State’s obligation contained in Article 1(2), to
the detriment of Jorge Marcial Tzompaxtle Tecpile, Gerardo Tzompaxtle Tecpile and Gustavo Robles
López.
b) The searches of the house of the mother of the brothers Tzompaxtle Tecpile and the shop
that housed the family business
193. With regard to this allegation, the Court notes that the State acknowledged in its answering
brief that the decision of October 16, 2008 of the Second Collegiate Criminal Court of the Seventh
Circuit, which acquitted Gerardo Tzompaxtle Tecpile, Jorge Marcial Tzompaxtle Tecpile and Gustavo
Robles López, of the charges brought by the Federal Public Prosecutor considered that the search that
served as the base for the federal judge to consider as proved the offense of terrorism had no legal
basis (supra para. 71). On the basis of that declaration of invalidity, the State argued that the “judge
reversed the violation expressed by the domestic court.”
194. In the inter-American system there is a dynamic and complementary control of the States’
conventional obligations to respect and ensure human rights, conjointly between the domestic
authorities (primarily obligated) and the international instances (in a complementary role), so that the
criteria of decision and the mechanisms of protection, both domestic and international, can be put in
agreement and made adequate. Thus, in application of the principle of complementarity (or
subsidiarity), the Court has affirmed that State responsibility under the Convention can only be
demanded on the international level after a State has had the opportunity to acknowledge, when
appropriate, a violation of a right and to repair by its own means the harm caused. In this way, when
the State ceases the human rights violations and repairs the victims of those violations, the Court is
not empowered to declare the international responsibility for those violations. 148
195. On this point, the Court notes that there is no doubt that the State, through one of its judicial
bodies, acknowledged that there was an infringement to privacy to the detriment of Gerardo
Tzompaxtle Tecpile and of Jorge Marcial Tzompaxtle Tecpile when, on October 32, 2006, authorities
searched the home of their mother and the shop that housed the family business (supra para. 31).
146
Cf. Case of Fernández Prieto and Tumbeiro v. Argentina, supra, paras. 68 et seq.
147
ECHR. Case of Ilgar Mammadov v. Azerbaijan, Judgment of October 13, 2014, Application No. 15172/13, para. 88.
Cf. Case of the Santo Domingo Massacre v. Colombia. Preliminary Objections, Merits and Reparations. Judgment of
November 30, 2012. Series C No. 259, para. 143 and Case of Habbal et al. v. Argentina, supra, para. 82.
148
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