real jurisdictional guarantee of a preventive nature because they protect human rights
inasmuch as they seek to avoid irreparable harm to persons. 7
6.
The three conditions required by Article 63(2) of the Convention for the Court to be
able to order provisional measures must co-exist in any situation in which they are
requested. 8 Based on its competence in the context of provisional measures the Court must
consider only and strictly those arguments that are directly related to the extreme gravity,
urgency and need to avoid irreparable damage to persons. Any other fact or argument may
only be analyzed and decided during consideration of the merits of a contentious case. 9
7.
Regarding the requirement of “gravity,” in order to adopt provisional measures, the
Convention requires that this be “extreme”; in other words, that it is at its highest or most
intense level. The “urgent” nature means that the risk or threat involved must be imminent.
Lastly, as regards the damage, there must be a reasonable probability that it will occur, and
it should not relate to legal interests or rights that can be repaired. 10
8.
This Court observes that, from the information provided by the Commission and
uncontested by the State concerning the facts and the background of this matter (supra
having seen paragraph 2), it has been proven that:
a) B. suffers from systemic lupus erythematosus (hereinafter “SLE”), aggravated by
lupus nephritis;
b) Currently, B is 26 weeks pregnant and it has been determined that the fetus is
anencephalic (without a brain), an anomaly incompatible with life outside the
uterus; 11
c) The Medical Committee of the “Dr. Raúl Arguello Escolán” National Maternity
Hospital “Dr. Raúl Arguello Escolán” (hereinafter “the Medical Committee”) considered
on April 12, 2013, that the pregnancy should be ended, taking into account that: 12
1. The prognosis for the survival of the fetus is nil in the short and medium term
based on the prenatal diagnosis and, in the presence of anencephaly, there is a
high possibility of severe fetal malformation.
2. The maternal disease previously described, mixed connective tissue disease
overlapping with systemic lupus erythematosus and lupus nephritis, would
7
Cf. Case of the “La Nación” Newspaper. Provisional measures with regard to Costa Rica. Order of the
Court of September 7, 2001, fourth considering paragraph, and Matter of Wong Ho Wing. Provisional measures
with regard to Peru. Order of the acting President of the Court of December 6, 2012, fifth considering paragraph.
8
Cf. Case of Carpio Nicolle et al., Provisional measures with regard to Guatemala. Order of the InterAmerican Court of Human Rights of July 6, 2009, fourteenth considering paragraph, and Matter of L.M.,
Provisional measures with regard to Paraguay. Order of the Court of July 1, 2001, sixth considering paragraph.
9
Cf. Matter of James et al. Provisional measures with regard to Trinidad and Tobago. Order of the InterAmerican Court of Human Rights of August 29, 1998, sixth considering paragraph, and Matter of L.M., Provisional
measures with regard to Paraguay. Order of the Court of July 1, 2001, sixth considering paragraph.
10
Cf. Matters of the Monagas Detention Center (“La Pica”); the Capital Region Penitentiary Center Yare I
and Yare II (Yare Prison); the Occidental Region Penitentiary Center (Uribana Prison), and the Capital Detention
Center El Rodeo I and El Rodeo II. Provisional measures with regard to Venezuela, Order of the Inter-American
Court of Human Rights of November 24, 2009, third considering paragraph, and Matter of L.M., Provisional
measures with regard to Paraguay. Order of the Court of July 1, 2001, sixth considering paragraph.
11
Cf. Summary of medical report of March 22, 2013 (file of request for provisional measures, annex 1),
and decision of the Constitutional Chamber of May 28, 2013.
12
Minutes of the Medical Committee of the National Maternity Hospital of April 12, 2013 (file of request for
provisional measures, annex 4).
6