72.
The Tribunal observes that Article 10, subparagraph b) of Law 815, which was in
force at the time, established the following for the police of the Province of Chubut:
For the exercise of the function of security police established in this chapter, they shall have the
ability to:
[…]
b) Detain the individual as necessary to obtain the individual’s prior record under justifiable
circumstances, when identification is refused, when identification is missing, or when the
identification presented is not a certified identification document, immediately informing the
investigative judge on duty.
In all cases, the order shall come from the institution’s highest authorities and shall not exceed
TEN (10) hours. It must be recorded in the police registries established for that purpose. The
detention shall not last longer than the amount of time necessary to meet the measure’s
objective. The detainee shall be informed of his or her right to notify a relative or trusted
individual and inform that person of his or her situation [...].”
73.
In this regard, the Court has already established that Article 7 of the Convention
provides for two types of regulations that are clearly differentiated from each other, one
of a general nature and one specific. The general one is found in the first subparagraph:
“Every person has the right to personal liberty and security.” The specific one is
comprised of a series of guarantees that protect the rights to not be illegally (Art. 7(2))
or arbitrarily (Art. 7(3)) deprived of liberty, to know the reasons for the detention and
the charges brought against the person being detained (Art. 7(4)), to judicial oversight
of the deprivation of liberty and the reasonableness of the time period of preventive
detention (Art. 7(5)) and to appeal the legality of the detention (Art. 7(6)). 53 Any
violation of subparagraphs 2 to 7 of Article 7 of the Convention necessarily leads to a
violation of Article 7(1) of the Convention. 54
74.
Specifically, Article 7(2) of the Convention establishes that, “No one shall be
deprived of his physical liberty except for the reasons and under the conditions
established beforehand by the constitution of the State Party concerned or by a law
established pursuant thereto.” This principle of legality must forcibly be accompanied by
the principle of codification [definition of the crime], which requires States to establish
“beforehand” the “causes” and “conditions” of deprivation of physical liberty as
specifically as possible. In this way, Article 7(2) of the Convention refers automatically to
domestic law. For this reason, any requirement established in domestic law that has not
been complied with upon depriving a person of liberty results in that detention being
illegal and against the American Convention. 55
75.
It is evident from the facts acknowledged by the State that the detention of Mr.
Torres Millacura carried out on September 26, 2003, by Comodoro Rivadavia police was
not “recorded in the police registries set up for that purpose,” as required in Article 10,
subparagraph b), of Law 815. In this regard, from the testimony given internally by
police officers of the First Precinct, it can be deduced that on the date on which the facts
Honduras. Merits, Reparations and Costs. Judgment of February 1, 2006. Series C No. 141, para. 67, and Case
of Servellón García et al. V. Honduras, supra note 51, para. 88.
53
Cf. Case of Chaparro Álvarez and Lapo Íñiguez V. Ecuador, supra note 29, para. 51; Case of Usón
Ramírez V. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 20, 2009.
Series C No. 207, para. 143, and Case of Cabrera García and Montiel Flores V. México, supra note 51, para. 79.
54
Cf. Case of Chaparro Álvarez and Lapo Íñiguez V. Ecuador, supra note 29, para. 54; Case of Usón
Ramírez V. Venezuela, supra note 54, para. 143, and Case of Cabrera García and Montiel Flores V. México,
supra note 51, para. 79.
55
Cf. Case of Chaparro Álvarez and Lapo Íñiguez V. Ecuador, supra note 29, para. 57; Case of Yvon
Neptune V. Haití. Merits, Reparations and Costs. Judgment of May 6, 2008. Series C No. 180, para. 96, and
Case of Usón Ramírez V. Venezuela, supra note 54, para. 145.
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