2
inoperativeness of administration of justice, deficiencies in preservation of
internal order and precarious material conditions enter the scenario as
ingredients of the persistent impairment of the right to life of prisoners and
personnel who works in penitentiary facilities.
6.
The penitentiary dilemma is of a structural nature and its solution is far
beyond an adequate management of a specific penitentiary center. Usually,
the issue relates to a problem that may only be solved gradually as part of a
process calling for the involvement of “… a set of actions […] of an
administrative, judicial and even legislative nature.” 20
7.
In accordance with the provisions of Article 63(2) of the Convention, the
purpose of provisional measures is strictly to avoid the occurrence of
irreparable damage to persons, in cases of extreme gravity and urgency.
Therefore, the Court was right to establish in its Order that, even though s
State’s non-compliance with an order of provisional measures “may trigger
the international responsibility” of any such State,21 the purpose of provisional
measures is not to determine (or not) the international responsibility of the
State, as the jurisdiction of the Court to that effect is exercised in contentious
cases brought to the Court. Therefore, based on the provisions set out in
Article 63(2), the jurisdiction of the Court in matters of provisional measures
has to specifically determine the gravity and urgency of a situation and its
objective must be to avoid irreparable damage to persons.
8.
In confronting an ad pedem lítterae interpretation of the language of Article
63(2) with the situation prevailing in the penitentiary system of the region, it
could be concluded that, in principle, the great majority of penitentiary
centers are going through a situation of “gravity” and “urgency” in which the
life and integrity of both prisoners and penitentiary personnel may be at
stake. In this context, it is convenient to specify the sense and orientation of
provisional measures in the face of a penitentiary complexity packed with
structural problems that cannot be solved by measures that, in themselves,
are provisional or with a short period of effectiveness. The penitentiary
system of the region is still awaiting a penitentiary reform in depth, which
cannot be replaced with provisional measures.
9.
If provisional measures ordered for this type of situations are not understood
in a restricted perspective and dimension, one could be running the risk of
trying to understand —through such measures— a comprehensive issue that
could only be successfully solved by way of a process with mid- and longterm goals, and as a result of the interaction of a set of decisions and policies
dealing with administrative, judicial, legislative and budgetary aspects.
Therefore, the “extreme gravity” and “urgency” have to refer to issues that
can be subjected to an order of the Court so as to obtain immediate and
tangible results that can be overseen by the Court. The set of political
decisions that the State must adopt with respect to penitentiary matters is a
structural and relevant issue falling without the specific scope of provisional
measures governed by Article 63(2) of the Convention.
20
Order of provisional measures, March 30, 2006. Considering Clause No. 11.
21
Order of provisional measures, March 30, 2006. Considering Clause No. 10.
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