12
take a prudent decision which, even when doubts exist, privileges the protection of the
individual in order to avoid the occurrence of irreparable damage.” These factors would be:
-
The level of elucidation and de-activation of the factors that gave rise to the danger.
-
The situation of impunity that exists in the dispute that gave rise to the measures, as well as
developments in the criminal proceedings that could have an impact on the beneficiaries.
-
New or recent acts of violence, threat or harassment perpetrated against one or more of the
beneficiaries, or against individuals in similar situations […] also taking into account:
-
Objective legal situations [for example, a valid death sentence that is being examined before
the Commission or the Court], which persists unchanged.
-
The absence of new acts of violence precisely as a result of the implementation of the
provisional measures ordered by the Court, bearing in mind that when the threat comes
from the State itself, the mere fact that the measures are in force may cause the
perpetrators to abstain from committing threatening acts.
-
Actions taken by the beneficiaries of the provisional measures themselves that reflect a
justified fear of being re-victimized.
-
The levels of violence or danger for the group to which the beneficiaries belong in a country
or region at a specific moment, for example human rights defenders, witnesses, justice
administration officials, trade unionists, detainees, etc.
-
General considerations regarding the place or population to which the beneficiaries belong.
-
[I]nformation from different State entities – including the courts, legislative committees,
monitoring bodies, etc. – that reveal or affirm the existence of significant danger for a
person, group, area, etc., even though the Court must make its own assessment of the
danger faced by the applicants for and beneficiaries of provisional measures.
39.
That the Commission indicated that, taking into account that “during 2007 and 2008,
the public finger-pointing and other forms of harassment continued” and that the
investigations “have not made any progress or achieved any substantive results,” “the
dangerous situation persists and, consequently, the provisional measures should remain in
force.” The Commission added that “until the files of the proceedings [of the investigation
into the threats,] or at least detailed and complete information was available, it [was]
reasonable and necessary to conclude that, since the causes and those responsible for the
acts that gave rise to the current measures had not been determined, the beneficiaries
continued to face potential danger.”
40.
That the Court recognizes that the absence of threats does not necessarily mean that
there is no danger for an individual. However, given the passage of time without any
threats, the Court must assess the reasons why the said threats are no longer made, so as
to decide whether it is in order to maintain the provisional measures, without losing sight of
the essentially provisional and temporary nature of these measures of protection.
41.
That the Court has examined the factors proposed by the representatives for
assessing whether it was in order to maintain the provisional measures. It has indicated
(supra Considering paragraphs 22 to 25) that only certain types of context related to a
pattern of extreme situations can justify maintaining them. It concluded that this had not
occurred in the instant case. Moreover, it indicated (supra Considering paragraphs 17 and
18) that the ineffectiveness of the investigations did not justify, per se, maintaining the
measures and that in general, arguments about irregularities in the investigations should be
aired during the respective litigation. Even when it is alleged that the provisional measures
have resulted in the beneficiaries no longer receiving threats, the “provisional” nature of the
measures justifies that, since they have been in force for almost seven years, an exhaustive