Notwithstanding the foregoing, the maintenance of protective measures requires the
Court to make a more rigorous assessment concerning the persistence of the
situation which gave rise to the measures.8 If a State requests that the provisional
measures ordered be lifted or modified, it must present sufficient evidence and
arguments to allow the Court to understand that the risk or threat no longer fulfills
the requirements of extreme gravity and urgency to avoid irreparable harm. In
addition, the burden borne by the beneficiaries and the Commission to furnish
evidence and arguments increases as time passes and no new threats arise.
Obviously the fact that there are no new threats may be due precisely to the
effectiveness of the protection provided or to the deterrence effect of the Court’s
order. Nevertheless, the Tribunal has found that the passage of a reasonable period
of time without threats or intimidation, plus the absence of imminent danger, can
lead to the lifting of the provisional measures.9
21. In addition, the Court must take into account that according to the Preamble of
the American Convention, the international protection in the form of a convention
“reinforc[es] or complement[s] the protection provided by the domestic law of the
American States.” Therefore, upon verifying that the State in question has developed
effective protective mechanisms or actions for the beneficiaries of the provisional
measures, the Court may decide to lift the provisional measures, placing the
obligation to protect on the entity with primary responsibility, that is, the State.10 If
the Court lifts the provisional measures on this basis, it falls to the State - in keeping
with its obligation to guarantee human rights - to maintain the protective measures
that it has adopted and that the Tribunal found effective, and to do so for as long as
circumstances warrant.
22.
The Court observes, first, that the information in the case file reveals that on
August 31, 2009, Mr. Ramírez Hinostroza participated as a witness in proceeding
number 733-08. From several photographs that he was shown, he recognized two
individuals who had disappeared. The information provided by the parties also
reveals that following his testimony of almost two years ago, the beneficiary has not
played any further role in the proceeding, and there is no indication that he will
participate in the future. In addition, although the State and the representatives
informed the Court that the proceeding is at the stage of an appeal for annulment,
the representatives did not inform the Court how this stage of the proceeding would
maintain the situation of risk for the beneficiaries of the measures.
23.
Moreover, even though the representatives were asked to describe specific
facts that would allow the Court to examine the need to maintain the provisional
measures, and even though the beneficiary had mentioned during his testimony in
proceeding 733-08 that he had received a threat prior to the date of his testimony to
8
Cf. Matter of the Indígena Kankuamo Indigenous People. Provisional Measures regarding
Colombia. Order of the Inter-American Court of Human Rights of April 3, 2009, Considering 7, Matter of
the Mendoza Penitentiaries. Provisional Measures regarding the Republic of Argentina. Order of the InterAmerican Court of Human Rights of July 1, 2011. Considering 30.
9
Cf. Matter of Gallardo Rodríguez. Provisional Measures regarding Mexico. Order of the InterAmerican Court of Human Rights of July 11, 2007, Considering 11, and Case of Caballero Delgado et al.
Provisional Measures regarding Colombia. Order of the Court of February 2011, 2011, Considering 25.
10
Cf. Matter of Luis Uzcátegui. Provisional Measures regarding Venezuela. Order of the InterAmerican Court of Human Rights of February 20, 2003, Considering 13, and Case of Mack Chang et al.
Provisional Measures regarding Guatemala. Order of the Inter-American Court of Human Rights of
November 16, 2009, Considering 6.
7