12.
Brazil affirmed that the problems related to the petitioners are and continue
to be attended to by the State, and therefore, it requested that the present
provisional measures be dismissed as unnecessary. Nevertheless, the Court notes
that of the information provided both by the Commission and the State, the
situation of extremely serious and urgent risk, and the irreparable nature of the
possible damage related to the rights to life and personal integrity of the prisoners
of the UNIS and of those present therein is evident.
13.
Consequently, in light of the provisions of the American Convention, the
Inter-American Court finds it necessary to protect these individuals by way of the
State’s immediate adoption of provisional measures, in order to prevent violence in
the Socio-Educational Internment Facility, as well the harm to the physical, mental,
and moral integrity of those children and adolescents deprived of liberty and all
others who may be present inside the facility.
14.
It is also appropriate to recall that Article 1(1) of the Convention establishes
the general obligations of State Parties to respect the rights and freedoms
enshrined in the Convention and to guarantee their free and full exercise to all
persons subject to the State’s jurisdiction. These obligations are imposed not only
in relation to State power, but also with respect to third parties. This Court regards
the State as occupying a special position as guarantor of the rights of the
incarcerated due to its total control over them. Moreover, the Court has also
indicated that, independent of the existence of provisional measures, the State is
especially obligated to guarantee the rights of persons deprived of liberty. 14 This
obligation takes on special circumstances in the case of minors of age, where the
State’s position as guarantor in respect of these rights, obligates it to prevent
situations that might lead, by act or omission, to their harm.
15.
Finally, the protection of the life of the child “requires the State to pay
special attention to the conditions of a child’s life while it is deprived of liberty,
because this right has not extinguished or been restricted owing to detention or
imprisonment.”15
16.
The State must take all relevant steps so that the provisional measures
mandated in the present Order are planned and implemented together with the
participation of the representatives of the beneficiaries, leading to their diligent and
effective realization. The Court notes that the affirmative participation of the State
and, particularly, the representatives is necessary.
17.
Based on the foregoing, the Court considers it appropriate to accept the
request for provisional measures until September 30, 2011, and to require the
State to report to the Court on the implementation of these measures pursuant to
operative paragraph three of this Order.
14
Cf. Matter of Capital El Rodeo I & El Rodeo II Judicial Confinement Center, supra note 6,
Considering clause eleven; Matter of Guerrero Larez, supra note 7, Considering clause thirteen, and
Matter of Penitentiary Center of Aragua "Tocorón Prison,” supra note 2, Considering clause twelve.
15
Cf. Case of Bulacio. Judgment of September 18, 2003. Serie C No. 100, para. 126; Matter of
Children Deprived of Liberty in the "Complexo do Tatuapé" of FEBEM. Provisional measures regarding
Brazil. Order of the Inter-American Court of Human Rights of July 4, 2006, Considering clause ten, and
Matter of Children Deprived of Liberty in the "Complexo do Tatuapé" of CASA. Provisional Measures
regarding Brazil. Order of the Inter-American Court of Human Rights of July 3, 2007, Considering clause
eight.
10