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of matters which may involve the responsibility of the country within
the international scope, as that branch has been constitutionally
granted the exercise of the foreign affairs of the Nation.
14) That among those hypotheses we find this case, where the
National Executive Power –as custodian of the interests of the
National State- shall act for an interest of its own regarding the
consequences that the fulfillment or the non-fulfillment of the
recommendations and decisions adopted by the Commission and the
Inter-American Court of Human Rights with respect to the facts
denounced may entail. It is the National Executive Power the one
with passive legal standing in the claim, and not the Province of
Mendoza.
The matter has exceeded the domestic scope of the State, and that
prevents the above mentioned provincial State from being one of the
bearers of the legal relationship on which the above mentioned
claims are based, regardless of their fundament […] The provincial
State can not be granted the capacity to contradict the specific
matter the proceeding shall be about […]
15) That even the tenor of the decisions and communications of the
international bodies which take part in the claims that give rise to
this proceedings -attached hereto- reveal that the legal relationship
invoked, and on which basis it is sought to enforce the fulfillment of
the recommendations and decisions adopted by the Commission and
by the Inter-American Court of Human Rights, directly links the
claimants to the National State and not to the Province Mendoza.
16) That for that matter it is proper to emphasize that the InterAmerican Court of Human Rights itself stated -when analyzing the
admissibility of the provisional measures requested, the purpose of
which is to alter the denounced situation of fact - that “...it is aware
that the relief and the improvement of the situation of the
penitentiaries of Mendoza constitutes a short, medium and long-term
process, which requires a set of actions of administrative, judicial and
eventually legislative nature by the federal and provincial authorities
so as to correct the imprisonment and detention conditions.
However, before this Court’s order to adopt provisional measures,
the purpose of which is the protection of the life and the integrity of
the inmates detained in those penitentiaries and of the people within
the facilities, the State can not allege domestic law grounds to refrain
from taking firm, concrete and effective courses of action so as to
fulfill the ordered measures to prevent any additional deaths. Neither
can the State allege the lack of coordination between the federal and
the provincial authorities to avoid the deaths and acts of violence
which have continued to exist during their enforcement. Regardless
of the unitary of federal structure of a State Party to the Convention,
before the international jurisdiction it is the State as such the one
which appears before the bodies which supervise that treaty, and it is
the State the only one obliged to adopt the measures. The lack of
adoption of the provisional measures on the part of the State
compromises its international liability" (judgment of March 30, 2006,
Considering Clause No. 11, page 98).
It is not pointless to state that in that same sense was the judgment
of the Inter-American Court in the case of "Garrido and Baigorria vs.
Argentina", judgment of August 27, 1998; and in Advisory Opinion
Number 16 of October 1, 1999, on "the Right to Information on
Consular Assistance in the Context of the Guarantees of Due Process
of Law.”
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