9
impossibility of establishing a court of appeal,” and this “extends to the three cases on
contact filed by different members of L.M.’s biological family, as well as the case on forfeit
of parental authority, because decisions on an appeal are pending in all the cases.” The
Commission stated that this situation “reveals prima facie the inability of the institutions to
provide a prompt response to disputes that, owing to the nature of the interests at stake
and the grave damage that could be caused to the beneficiary, warrant exceptional
diligence.” In addition, it reported that, of the three DNA tests, it had only been possible to
perform one, because the O-A family had not come forward with the child L.M. for the
second test that had been ordered, and had appealed the decision ordering that the DNA
tests be conducted by two specialized laboratories.
CONSIDERING THAT:
1.
Paraguay has been a State Party to the American Convention since August 24,
1989, and pursuant to Article 62 of the Convention, accepted the compulsory jurisdiction of
the Court on March 11, 1993.
2.
Article 63(2) of the American Convention establishes that “[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.
According to Article 27 of the Court’s Rules of Procedure:30
1. At any stage of proceedings involving cases of extreme gravity and urgency, and when necessary to
avoid irreparable damage to persons, the Court may, on its own motion, order such provisional
measures as it deems appropriate, pursuant to Article 63(2) of the Convention.
2. With respect to matters not yet submitted to it, the Court may act at the request of the Commission.
[…]
5. The Court, or if the Court is not sitting, the Presidency, upon considering that it is possible and
necessary, may require the State, the Commission, or the representatives of the beneficiaries to provide
information on a request for provisional measures before deciding on the measure requested.
6. If the Court is not sitting, the Presidency, in consultation with the Permanent Commission and, if
possible, with the other Judges, shall call upon the State concerned to adopt such urgent measures as
may be necessary to ensure the effectiveness of any provisional measures that may be ordered by the
Court during its next period of sessions.
4.
This request for provisional measures does not arise from a case before the Court,
but rather the measures have been requested within the framework of petition 1474/10
being processed by the Inter-American Commission since September 1, 2010, which is
currently at the admissibility stage.
5.
The Court has established that under international human rights law, provisional
measures are not only preventive, in the sense that they preserve a juridical situation, but
rather they are fundamentally protective, because they protect human rights insofar as
they seek to avoid irreparable damage to persons.31 The preventive nature of provisional
30
Rules of Procedure approved by the Court at its eighty-fifth regular session held from November 16 to
28, 2010.
31
Cf. Case of the “La Nación” Newspaper. Provisional measures with regard to Costa Rica. Order of the
Inter-American Court of Human Rights of September 7, 2001, fourth considering paragraph; Matter of the Aragua
Detention Center “Tocorón Prison.” Provisional measures with regard to Venezuela. Order of the Inter-American
Court of Human Rights of November 24, 2010, sixth considering paragraph; and Matter of Alvarado Reyes et al.
Provisional measures with regard to Mexico. Order of the Inter-American Court of Human Rights of November 26,
2010, fifth considering paragraph.