presented by the state agents. On the other hand, the statements of the presumed victim
have been consistent as regards what happened. Her version on the circumstances of the
detention is also in keeping with the acts of torture that took place at the Casa Grande Police
Station which are analyzed and admitted as proven in the chapter on the right to personal
integrity (infra paras. 145 to 165).
108. Based on the foregoing, the Court finds it proved that, on February 25, 2008, at 00:30
hours, Ms. Rojas Marín was walking home alone when a police vehicle approached her, a state
agent asked her where she was going and said to her: “So late! Be careful because it’s very
late.” Twenty minutes later the vehicle returned, they hit her, they made her get into the
police vehicle and they shouted at her three times “cabro concha de tu madre.” While they
were making her get into the police vehicle, Ms. Rojas Marín asked why they were detaining
her and the state agent did not answer her. The presumed victim was taken to the Casa
Grande Police Station where she remain until 6 a.m.; that is, around five hours. In the case
of facts that were not mentioned by the presumed victim but included in the police report, this
will be used as evidence.
109. The Court considers that, from the time the state agents detained Ms. Rojas Marín until
she left the police station, she was deprived of her personal liberty. 148 Therefore, it will now
analyze whether this deprivation of liberty was in keeping with the Convention.
B.2
Lawfulness of the detention
110. The Court has indicated that the restriction of the right to personal liberty is only
permissible “for the reasons and under the conditions established beforehand by the
Constitution […] or by a law established pursuant thereto” (substantive aspect), and also
strictly adhering to the procedures objectively defined in them (formal aspect). 149 This is
because the Convention itself refers to the domestic law of the State concerned. However,
irrespective of this referral, the Court is able to rule in this regard,150 precisely because it must
rule in accordance with the Convention and not according to the said domestic law. Thus the
Court is not carrying out a control of constitutionality or even of legality, but rather of
conventionality.
111. This is precisely what happens regarding Article 7(2) of the American Convention, which
establishes that “[n]o 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.” Thus, with regard to the requirement that a detention
must be lawful, the Court has indicated that, since the Convention refers to the Constitution
and laws established “pursuant thereto,” the examination of compliance with the said Article
7(2) entails the analysis of compliance with the requirements established as specifically as
possible and “beforehand” in these laws in relation to the “reasons” and “conditions” for
deprivation of physical liberty. If domestic law – both the substantive and formal aspects – is
Cf. Case of Torres Millacura et al. v. Argentina. Merits, reparations and costs. Judgment of August 26, 2011.
Series C No. 229, para. 76, and Case of Rodríguez Vera et al. (Disappeared from the Palace of Justice) v. Colombia.
Preliminary objections, merits, reparations and costs. Judgment of November 14, 2014. Series C No. 287, para. 404.
148
Cf. Case of Gangaram Panday v. Suriname. Merits, reparations and costs. Judgment of January 21, 1994.
Series C No. 16, para. 47, and Case of Montesinos Mejía v. Ecuador. Preliminary objections, merits, reparations and
costs, supra, para. 94.
149
150
Article 62(3) of the Convention.
30