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b)
Article 7(2) of the Convention, in its material aspect, requires that the
State fulfill the requirements previously and objectively defined in the
Constitution and in the laws enacted in accordance with it, and that the
authorities apply this legal order; in its formal aspect, said Article requires
fulfillment of the formal requirements set forth in domestic legislation, such
as existence of a written ad reasoned arrest warrant issued by a competent
judicial authority;
c)
Articles 19(17) of the Political Constitution of Ecuador and 172 of the
Criminal Procedures Code require that a signed arrest warrant be issued,
stating the reason for the detention, the place and date when the order was
issued. The only exception to the written order is that set forth in Article 174
of the code, which refers to detention of an individual flagrantly committing a
crime;
d)
Mr. Tibi was arrested while he was driving his car, without an order by
a competent judge, as set forth in Article 172 of the Criminal Procedures
Code, and without a flagrant crime being committed, pursuant to Article 174
of that same legislation;
e)
the concept of “arbitrary detention” applies when, despite fulfilling the
constitutional and legal requirements, there is a circumstance that is
incompatible with the rights and guarantees protected by the American
Convention;
f)
the police authorities detained Daniel Tibi with a flagrant abuse of
authority, to involve him a crime that he did not commit and even to torture
him, as they in fact did, for him to plead guilty of the facts of which he was
accused. The detention was also unfair because the only evidence against
Mr. Tibi was the statement of another co-accused (forbidden by the domestic
legal system itself, in Article 108 of the Criminal Procedures Code), a
statement allegedly also obtained under torture, that is, in violation of due
process;
g)
Article 7(4) of the Convention establishes two different requirements
regarding the duty to inform the detainee: a) the duty to inform the person of
the reasons for limiting his or her personal liberty; and b) the duty to
immediately notify of the imputation against him or her. Appropriate
notification of the imputation is decisive for exercise of the right to defense,
as it establishes the object of the proceeding;
h)
the “accidental” notifications of the charges against Daniel Tibi were
not in accordance with the standards required by the American Convention in
Articles 7(4) and 8(2)(b);
i)
the agents of the State lied when they said that the detention and
subsequent transfer of Mr. Tibi from INTERPOL’s offices in Quito to the city of
Guayaquil were due to migration control; they did not inform him that he was
involved in a judicial proceeding, nor did he receive official notification of the
charges against him, which he learned of through the attorney of another
person who had been accused;
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