7
difficulties regarding family visits, about bad living conditions, about inmate
health problems and about medical care shortcomings.
In broad terms, the representatives requested the Court to consider maintaining the
instant measures for two reasons, that is, “consider[ing] those units where there be
beneficiaries transferred from the [Complexo do Tatuapé] and additionally [assessing]
whether in such places there be circumstances or events generating […] an imminent
risk situation for the life, for the physical integrity [and] for the rights of the child of
such adolescents.” Likewise, they stressed that the State only filed the list of the units
where the beneficiaries were in its brief of September 18, 2008, for which reason the
representatives did not have enough time to visit the units located in the interior of
the State of São Paulo. As a result, they requested the Tribunal “to maintain the
provisional measures so as to allow monitoring and assessing of [all] the units [where
the beneficiaries are] to continue [and that the] real situation of the beneficiaries be
known by their representatives, […] by the Inter-American Commission [and by the]
Court.”
11.
That the Commission stated that despite the progress achieved in the care
system for adolescents at odds with the law, compliance with the provisional
measures cannot be concluded from the mere decommissioning of the Complexo do
Tatuapé and the transfer of the inmates. The State must effectively guarantee the
children and adolescents their life and personal integrity, as well as appropriate
detention conditions. The Commission expressed its concern about the current
situation of the beneficiaries and about the fresh incidents of violence, overcrowding,
protracted isolation and other facts disseminated by the Brazilian press that would
have taken place in the Fundação CASA. It alleged to have learned about reports of
physical mistreatment and sexual abuse by staff members against adolescents
confined at the institution, although no specific information about who the victims
would be or about the time when the events would have taken place. In its November
24, 2008 brief, the Commission stated it noted the information given by the State and
the concerns put forth by the representatives, and that it considered “it is for the
Tribunal to assess the pertinence of keeping the provisional measures in force.”
*
*
*
12.
That the State has, regarding all persons under its jurisdiction, the general
obligations to respect and guarantee the full enjoyment and exercise of their rights, to
be enforced not only as relating to the power of the State, but also concerning the
action by third individual parties. Special duties derive from these general obligations
which are ascertainable on the basis of the particular protection needs of the subjects
of the rights, whether on account of their personal situation ― in the instant matter
that of being children and adolescents ― or of the specific circumstances in which they
may be found5, as is the case of being detained. The Court has pointed out the special
5
Case of the Pueblo Bello Massacre v. Colombia. Merits, Reparations and Costs. Judgment by the