2
and justify the measures- the exact identity of the beneficiaries. In these cases, a
number of persons face the same, grave danger.
5.
If we were to wait until it is possible to individually identify those facing this
danger of grave and irreparable detriment to legally protected interests –reflected in
the respective rights-, there would be a risk of the injury occurring without the Court
having intervened to avoid it, even though it was aware that it was not only possible
but probable and imminent that it would occur. Thus, a technicality that could be
overcome would keep the Court from acting promptly to carry out its true function:
to use its jurisdictional authority to protect the rights that are at risk. It would be
difficult to argue that abstaining from doing so is consistent with the protective
mission entrusted to the Inter-American Court.
6.
Hence the noteworthy shift in the jurisprudence of the Court beginning with
the Order on provisional measures issued in the Matter of the Peace Community of
San José de Apartadó v. Colombia, on November 24, 2000. For the first time, this
Order extended the benefit of said measures to the members of a group of persons
facing the same risk who were not listed individually but were identifiable in light of
certain objective data that make it possible to establish their identity. With this, the
jurisprudence of the Court took a great step forward in terms of true protection of
human rights, which is not satisfied by reparation of the injury that already occurred,
but rather requires, foremost, to act in a timely, sufficient, and diligent manner to
avoid said injury.
7.
In this case, mi colleague Judge Alirio Abreu-Burelli and I stated, in a
Separate Concurring Opinion, the background, intent, and characteristics of the new
subjective scope of the provisional measures, which certainly does not contravene
the provisions of the Convention, but rather interprets its aims and adjusts judicial
decisions to them. In this opinion we referred to the existing similarity, mutatis
mutandi, between the diffuse interests subject to juridical protection and the
breachable rights of individuals who are part of a more or less numerous group of
persons, as well as the connection that might exist, also in relative terms, between a
popular interest action to protect rights of members of a collectivity and urgent steps
regarding those rights through a petition for provisional measures.
8.
The criterion adopted in the Matter of the Peace Community of San José de
Apartadó has been applied by the Court in other cases. This has asserted its
relevance and has enabled this protective institution to evolve in a manner that is
appropriate to the intent that inspires it. The San José de Apartadó case dealt with a
peace community, whose members –several hundred individuals- were linked by a
certain geographical settlement, which could vary, and certain joint decisions, which
generated the individual and collective risk. In subsequent cases, other data for
analysis of the group whose members benefit from provisional measures have
appeared: it may be, as has in fact occurred, an indigenous community, a population
of adult inmates or of juvenile offenders, a set of workers carrying out their activities
in a specific center, and so forth. All these situations constitute spheres for
application of the provisional measures, for exactly the same motives and reasons
that were the grounds for the decision of the Inter-American Court in the Matter of
the Peace Community of San José de Apartadó.
9.
In the three cases that the Orders to which I attached this Opinion refer, as
well as in that of the Matter of “Globovisión” Television Station, one can see the
conditions that enable ordering provisional measures under the criterion adopted in
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