7
adopt such urgent measures as may be necessary to ensure the effectiveness of any
provisional measures that may be ordered by the Court during its next period of sessions.
4.
The provisions established in Article 63(2) of the Convention make the provisional
measures ordered by this Tribunal obligatory for the State, as the basic legal principle of
State responsibility, based on international case law, has indicated that States must
comply with their obligations under the Convention in good faith (pacta sunt servanda).2
5.
In International Human Rights Law, provisional measures are not solely
precautionary, in the sense that they preserve the legal situation. Rather they are
fundamentally tutelary, in that they protect human rights by seeking to prevent
irreparable damage to persons. An order to take measures is applicable as long as it
meets the basic requirements of extreme gravity and urgency and prevention of
irreparable damage to persons. In this way, provisional measures become a true
jurisdictional guarantee of a preventative nature.3
6.
From the information provided by the Commission, it can be deduced that Mr.
Juan Almonte Herrera has been missing since September 28, 2009, (supra Having Seen
2(a)) the date on which he was detained by the National Police and following which he
has not had any contact with his relatives or representatives. It can likewise be deduced
that Yuverky Almonte Herrera, Joel Almonte and Ana Josefa Montilla, relatives of Mr.
Juan Almonte Herrera, as well as Genaro Rincón and Francisco de León Herrera,
attorneys, have been subjected to threats and harassment as a consequence of the steps
taken toward determining the whereabouts of Mr. Almonte Herrera. Ms. Montilla is not
currently in the Dominican Republic (supra Having Seen 2(f)).
7.
Article 63(2) of the Convention requires that in order for the Court to issue
provisional measures, three conditions must be met: i) “extreme gravity;” ii) “urgency,”
and iii) “avoiding irreparable damage to persons.” These three conditions coexist and
must be present in every situation in which the Court’s intervention is requested4 In this
matter, the extreme situation of risk reported on due to the alleged disappearance of Mr.
Juan Almonte Herrera while in State custody can be noted. Likewise, the President finds
that protection in order to avert the threat cannot be postponed. Finally, the irreparable
character of the situation of extremely grave and urgent risk related to the rights to life
and personal integrity is evident.
2
Cf. Case of James et al. Provisional Measures regarding Trinidad and Tobago. Order of the InterAmerican Court of Human Rights of June 14, 1998, 19, Considering six; Matter of Guerrero Larez. Provisional
Measures regarding Venezuela. Order of the Inter-American Court of Human Rights of November 17, 2009,
Considering 5, and Case of 19 Tradesmen v. Colombia. Monitoring Compliance with Judgment and Provisional
Measures. Order of the Inter-American Court of Human Rights of July 8, 2009, Considering 4.
3
Cf. Case of the Newspaper “La Nación.” Provisional Measures regarding Costa Rica. Order of the InterAmerican Court of Human Rights of September 7, 2001, Considering four; Matter of Guerrero Larez, supra
footnote 2, Considering 4, and Case of Gomes Lund et al. (Guerrilha do Araguaia). Provisional Measures
regarding Brazil. Order of the Inter-American Court of Human Rights of July 15, 2009, Considering 4.
4
Cf. Case of Carpio Nicolle. Provisional Measures regarding Guatemala. Order of the Inter-American
Court of Human Rights of July 2009, Considering 14; Matter of Guerrero Larez, supra footnote 2, Considering
10, and Matter of Natera Balboa. Provisional Measures regarding Venezuela. Order of the Inter-American Court
of Human Rights of December 1, 2009, Considering 10.