13
41.
That the Court appreciates the efforts made by the State to comply with this
aspect of the Judgment. However, the Court believes that additional information should
be provided in relation to:
a) the Bill on the creation of the Committee on the Search for Victims of Enforced
Disappearance and Other Forms of Disappearance, specifically whether it has
been passed by Congress and the specific results of the application of said law
to the case of Mr. Bámaca-Velásquez,
b) the Access to Public Information Law, specifically whether it allows access to
confidential files kept by security forces; and
c) the Law on the Protection of Persons Participating in Criminal Proceedings and
Persons engaged in the Administration of Criminal Justice, specifically whether
said law is being applied and, if not, whether there is a specific law or any other
mechanism available to ensure the protection of witnesses.
B)
Provisional Measures
42.
That Article 63(2) of the American Convention sets forth that “[i]n cases of
extreme gravity and urgency, and when necessary to avoid irreparable damage to
persons,” the Court may “adopt such provisional measures as it deems pertinent” in
matters it has under consideration.
43.
That Article 25(1) of the Court’s Rules of Procedure provides that “[a]t any
stage of the proceedings involving cases of extreme gravity and urgency, and when
necessary to avoid irreparable damage to persons, the Court may, at the request of a
party or on its own motion, order such provisional measures as it deems pertinent,
pursuant to Article 63(2) of the Convention.”
44.
That Article 1(1) of the Convention establishes the duty of the States Parties to
respect the rights and freedoms enshrined therein and to ensure to all persons subject
to their jurisdiction the free and full exercise of those rights and freedoms. This duty
becomes even more apparent in relation to those involved in proceedings before the
supervisory bodies of the American Convention.29
45.
That, under International Human Rights Law, provisional measures are not only
precautionary in the sense that they preserve a legal situation, but fundamentally
protective in that they safeguard human rights, insofar as they seek to prevent
irreparable damage to persons. Provisional measures are applicable provided that the
basic requirements of extreme gravity and urgency and the need to prevent
irreparable damage to persons are met. This way, provisional measures become a true
preventive judicial guarantee.30
29
Cf. Matter of Luisiana Ríos et al. Provisional Measures regarding Venezuela. Order of the Court of
September 8, 2004, Considering clause No. 6.; Matter of Colotenango. Provisional Measures regarding
Guatemala. Order of the Court of July 12, 2007, Considering clause No. 4; Case of the Mayagna (Sumo)
Awas Tingni Community. Provisional Measures regarding Nicaragua. Order of the Court of November 26,
2007, Considering clause No. 4.
30
Cf. Case of Herrera Ulloa. Provisional Measures regarding Costa Rica. Order of the Court of September
7, 2001, Considering clause No. 4; and Matter of Urso Branco Prison. Provisional Measures regarding Brazil.
Order of the Court of May 2, 2008, Considering clause No. 4; and Matter of Carlos Nieto et al. Provisional
Measures regarding Venezuela. Order of the Court of August 5, 2008, Considering clause No. 4.