Moreover, the beneficiary Abel Barrera, director of the organization Tlachinollan,
received threats in 2009 and 2011. These threats mentioned his organization’s work
and the said contentious case (supra considering paragraphs 16(h) and (o)).
Additionally, other members of this organization observed acts of harassment or
threats while at their office (supra considering paragraph 16(k)).
25.
Regarding the next of kin of Raúl Lucas Lucía and Manuel Ponce Rosas, the
Court verifies that aside from an incident that occurred in June 2009, no recent events
directly linked with the Fernández Ortega case have been reported that would place
their integrity or security at risk. In this regard, with respect to the last fact reported
by the representatives (the arrest of Máximo García Catarino), the Court observes that
it is in no way related to the said contentious case, but rather has to do with a Federal
Public Prosecutor investigation into the death of a person, in which two witnesses had
allegedly indicated that Mr. García Catarino participated in the fact. Moreover, the
representatives’ argument that there is risk to the next of kin because the
investigation of the forced disappearance and subsequent torture and execution of
Raúl Lucas Lucía and Manuel Ponce Rosas has not been completed, does not provide a
strong basis on which to conclude that there continues to be a situation of extreme
gravity and urgency in which it is urgent to prevent possible irreparable damage to the
persons. The Court recalls its criteria that the burden of proof and argument is
different when adopting provisional measures compared to when requesting they be
continued (infra considering paragraph 27).
26.
With regard to the members of OPIM, the Court observes that it is not evident
that all of the facts claimed by the representatives are related to the Fernandez Ortega
et al. case. In fact, notwithstanding the Court’s Order of November 23, 2010
dismissing a request to extend the provisional measures, the representatives continued
to indicate facts included in the said request as evidence of the risk faced by the
members of that organization. In addition, it cannot be inferred that “the harsh verbal
exchange” and the attempt made by members of the army to inspect private vehicles
on June 6, 2011 (supra considering paragraph 16(p)), represent the continuation of a
situation of risk of irreparable damage to all of the organization’s members. The Court
does not have enough information on the continued situation of risk of the
beneficiaries of the instant provisional measures to allow it to verify the persistence of
the situation of extreme gravity, urgency and need to prevent irreparable damages to
these persons. Therefore, it asks the representatives to provide a detailed report on
the situation of risk faced by each of the individuals in the group of beneficiaries (infra
considering clause 31).
27.
The Court recalls that when issuing protective measures, the assessment
standard of these requirements by the Court or whoever presides is prima facie, and
the application of presumptions is at times necessary in light of the needs for
protection.7 Notwithstanding the foregoing, the maintenance of the protective
measures demands a more rigorous assessment by the Court in terms of the
persistence of the situation that resulted in these measures. 8 If a State requests the
7
Cf. Case of Raxcacó Reyes et al. Provisional Measures with regard to Guatemala. Order of the InterAmerican Court of Human Rights of August 30, 2004, tenth considering paragraph, and Matter of Ramírez
Hinostroza et al. Provisional Measures with regard to Peru. Order of the Inter-American Court of Human
Rights of November 22, 2011. Twentieth considering paragraph.
8
Cf. Matter of the Kankuamo Indigenous People. Provisional Measures with regard to Colombia.
Order of the Inter-American Court of Human Rights of April 3, 2009, seventh considering paragraph, and
Matter of Ramírez Hinostroza et al., supra footnote 7, considering paragraph 20.
10