56.
As of September 1992, and therefore applicable at the time of Mr. Tumbeiro’s arrest,
Law 23,984 entered into force issuing the Criminal Procedural Code, articles 284, 230 and
184(5) of which indicate the following:
Article 284. Police officers and agents have the duty to arrest, even without a court order:
(1) Anyone who attempts to commit a criminal offense punishable by imprisonment, at the
time they are about to commit it. (2) Anyone who, having been legally detained, escapes.
(3) Exceptionally, anyone against whom there are strong indications of guilt and when there
is an imminent danger of flight or serious obstruction of the investigation and only to bring
them before the competent judge immediately to decide on their detention, and (4) Anyone
surprised in flagrante delicto committing a criminal offense punishable by imprisonment […].
Article 230. The judge shall order the search of an individual, by a justified order, provided
there are sufficient reasons to presume that he is hiding on his body items related to a
crime. Before proceeding to take this measure, the said individual may be invited to reveal
the item in question. Searches shall be conducted separately, respecting the person’s
privacy. If a woman it searched, this shall be carried out by another woman.
This measure shall be recorded in a written document signed by the person searched; if they
should refuse to sign it, the reason shall be indicated. A person’s refusal to be searched shall
not prevent this unless there are justifiable reasons.
Article 184. Law enforcement personnel shall have the following powers: […] (5) To order
the searches indicated in article 227 and the urgent inspections pursuant to article 230,
immediately notifying the competent judicial organ.81
VII
MERITS
57.
The Court recalls that the State made a total acknowledgement of international
responsibility, and that the Court has decided to hand down a judgment on the merits of this
matter (supra paras. 16 to 22). Accordingly, the Court will rule on the arguments of the
Commission and the representatives regarding the interception and search of the vehicle in
which Mr. Fernández Prieto was travelling, as well as the arrest for identification purposes and
subsequent body search of Mr. Tumbeiro. In particular, the Court will examine the facts of this
case in relation to the right to personal liberty, to equality before the law and the prohibition
of discrimination, as well in relation to the right to protection of honor and dignity.
VII-1
RIGHTS TO PERSONAL LIBERTY,82 EQUALITY BEFORE THE LAW AND PROHIBITION
OF DISCRIMINATION,83 AND PROTECTION OF HONOR AND DIGNITY84 IN
RELATION TO THE OBLIGATION TO RESPECT AND TO GUARANTEE RIGHTS 85 AND
THE OBLIGATION TO ADOPT DOMESTIC LEGAL PROVISIONS 86
A. Arguments of the Commission and the parties
81
1991.
Law 23,984 of September 4, 1991, issuing “the Criminal Procedural Code.” Official Gazette of September 29,
82
Article 7 of the American Convention.
83
Articles 24 and 1(1) of the American Convention.
84
Article 11 of the American Convention.
85
Article 1(1) of the American Convention.
86
Article 2 of the American Convention.
19