B. Regarding the request to “re-open” the provisional measures.
a) Regarding the “re-opening” of the provisional measures and other
procedural aspects
23.
The State questioned the concept of “re-opening” provisional measures, arguing
that it was not supported by any procedural norm in force. It added that the provisional
measures ordered by the Court in 2004, “concluded automatically with the decision to
lift them adopted in November 2011, so that any ruling on the matter would require a
new and detailed examination of the situation reported and, eventually, the issue of a
new order that would assess whether a situation of extreme gravity and urgency existed
that could justify the issue of an exceptional measure such as the one proposed by the
Commission.”
24.
The State underscored that the request did not denounce any new act, but
“attempts to justify the order of a new provisional measure based on events that had
already taken place, precisely while the order of November 22, 2004, was in force.” The
report of the province of Mendoza indicates that the State was unaware of these events
until February 2, 2011, when the videos were publicized by the media and, although the
videos were made before the request to lift the measures, the expert assessment had
not been made to determine the date on which the files were created. Moreover, the
State mentioned that it should be stressed that “the general situation in the
establishments covered by the measures was widely discussed during the public hearing
[…] which resulted in the decision duly made to lift the provisional measures” and that,
all things considered, “the events [in question] had occurred in 2010, were reported in
2011 and, in addition, the local authorities had not been unresponsive to them; to the
contrary, the facts had resulted in the detention and prosecution of those allegedly
responsible.”
25.
Thirdly, the State observed that the Commission had submitted the request for
measures to the Court “inaudita parte,” without requesting any information from the
Argentine State, based merely on the information provided by the petitioners and on
newspaper articles, and without previously invoking the powers granted to it by Article
25 of its Rules of Procedure, which allows it to request the State to adopt precautionary
measures in serious and urgent situations. The State argued that, anyway, it was
unable to present its observations on the information provided by the petitioners.
26.
Lastly, the State argued that, based on the petitioners’ complaint, the province
of Mendoza had coordinated a series of measures that demonstrate that the State was
determined to find a solution to the events that took place in the prison prior to the
request, so that, in observance of the principle of the subordination of the interAmerican system, the request to re-open the measures was inadmissible.
27.
The Commission indicated in this respect that its request to re-open the
measures was based “on the nature of the facts reported to the Court in March 2011, on
events that occurred during the second half of 2010 in the context of the serious
situation that was reported to the Inter-American Court throughout the six years that
the measure were in force.” It added that it was particularly relevant that the events
occurred while the provisional measures ordered by the Court were in force and that
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