almost two years ago. In addition, those facts were the subject of the Order of the Court
issued in this case on June 30, 2011. Furthermore, the Court has not been informed of any
possible incidents related to Maria Elena Soler de Gutierrez or Kevin Daniel Gutierrez Niño.
Hence, the representatives and the Inter-American Commission justify the maintenance of
the provisional measures on the fact that the criminal and disciplinary procedural activities
underway in the context of the domestic judicial investigations against the presumed
perpetrators of the human rights violations committed to the detriment of Wilson Gutierrez
and his family constitute, per se, a situation of extreme gravity and urgency. In this regard,
even though the obligation to investigate may, at times, extend over a considerable period
of time, the threat or risk does not necessarily remain extreme and urgent.10 The Court
observes that the representatives and the Commission assessed positively the usefulness of
the measures implemented, which, according to the representatives, “have reduced the risk
and contributed to the protection of the beneficiaries.”
19.
Moreover, the Court recalls that, in the Judgment delivered in this case on
September 12, 2005, it ordered the State to “investigate the facts effectively […] in order to
identify, try and punish the perpetrators of the arrest and torture of Wilson Gutiérrez Soler”
(paragraph 96). Furthermore, the State was ordered to “exercise special care to safeguard
the life, integrity and safety of Wilson […] Gutiérrez Soler and his next of kin, and to provide
them with the necessary protection from any person, bearing in mind the circumstances of
the case […]” (tenth operative paragraph). Consequently, the Court considers that the said
Judgment reveals not only the State’s obligation to investigate with due diligence the
torture, threats and harassment reported by Wilson Gutierrez Soler, but also the State's
obligation to implement all necessary mechanisms to ensure the participation of the victims,
in particular, Mr. Gutierrez Soler, in the judicial proceedings and to guarantee his life,
personal integrity and safety.
20.
In conclusion, the Court observes that, over the last two years, no specific situations
of risk to the beneficiaries have occurred; accordingly, the Court considers that the alleged
and hypothetical "extreme risk" to Wilson Gutierrez Soler and his family, owing to his
participation in the domestic legal proceedings and the failure to clarify the facts that gave
rise to the adoption of the provisional measures in this case, is not sufficient to conclude
that a situation of extreme gravity and urgency persists that could result in irreparable
damage against him and that justifies the existence of provisional measures ordered by this
Court. Therefore, the Court finds it appropriate to lift the measures ordered in this case. The
foregoing does not prevent the Court from re-ordering the provisional measures if, in the
future, the three conditions established in Article 63(2) of the American Convention are
again met.
21.
Notwithstanding the above, the Court must reiterate that Article 1(1) of the
Convention establishes the general obligation of the States Parties to respect the rights and
freedoms recognized therein and to ensure to all persons subject to their jurisdiction the
free and full exercise of those rights and freedoms, under any circumstance. Therefore,
despite the lifting of the provisional measures ordered by this Court, the State is especially
obliged to guarantee the rights of Wilson Gutierrez Soler, Kevin Daniel Gutierrez Niño and
Maria Elena Soler de Gutierrez by means of the relevant existing domestic mechanisms.
10
Cf. Case of the Constitutional Court, supra, third considering paragraph, and Case of the 19 Tradesmen,
supra, thirty-seventh considering paragraph.
7