[I]n cases of extreme gravity and urgency, and when necessary to avoid irreparable
damage to persons, the Court shall adopt such provisional measures as it deems
pertinent in matters it has under consideration. With respect to a case not yet submitted
to the Court, it may act at the request of the Commission.
3.
This matter is regulated under Article 27 of the Rules of Procedure of the
Court (hereinafter “the Rules of Procedure”).5
4.
Based on its jurisdiction, within the framework of provisional measures the
Court can only and strictly consider those arguments directly related to extreme
gravity, urgency and the need to prevent irreparable damage to persons. Any other
issue or claim shall be analyzed and resolved during the consideration of the merits
of the contentious case.6
5.
In relation to the situation of the child LM, the State and the representatives
have essentially reported the following:
a) On August 2, 2011 the Supreme Court of Justice of Paraguay issued a
decision addressed to the “Defensoría de la Niñez y la Adolescencia”
(Ombudsman’s Office for Children and Adolescents) in which it ordered the
implementation of all means necessary to comply with the provisional measure
of the Inter-American Court;
b) On August 23, 2011 the Ombudsman’s Office for Children and Adolescents
requested that the Court of First Instance for Children and Adolescents
implement the provisional measure ordered by the Inter-American Court and
confirmed by the Supreme Court;
c) On that same date the judge of first instance in charge of the proceedings
summoned the parents, the grandparents and the family with custody of LM to
a hearing on August 31. On this occasion a psychologist and a social worker of
the judicial branch were also summoned;
d) That same day the attorney of the O-A couple objected to the acting judge,
filed a motion for the annulment of the proceedings and requested that the
hearing be suspended;
e) On August 31, 2011 all the summoned parties appeared before the Court,
except for the O-A couple, with custody of the child. The hearing took place and
the judge ordered immediate compliance with the operative paragraphs
established by the Inter-American Court in the Order of July 1, 2011, and called
for provisional visiting arrangements to be made with the extended family
(maternal grandparents) as of September 6, 2011;
f) On September 5, 2011 the O-A couple filed another motion of annulment and
appealed against the ruling of August 31, considering that “the procedural acts
performed are invalid since they were in violation of the rules of due process”
and contravene the legal provisions that stipulate the mandatory and
unavoidable presence of children’s representatives in proceedings of this
nature;
5
Rules of Procedure of the Court approved during its Eighty-fifth Regular Period of Sessions held
from November 16 to 28, 2009.
6
Cf. Matter of James et. al. Provisional Measures regarding Trinidad and Tobago. Order of the
Inter-American Court of August 20, 1998, Considering paragraph 6; and Matter of the Jiguamiandó and
Curvaradó Communities. Provisional Measures regarding Colombia. Order of the Inter-American Court of
November 25, 2011, Considering paragraph 5
3