9
*
*
*
11.
The Court has indicated that “although it is true that the events which motivated the
request for provisional measures” “do not have to be fully proven, a minimum degree of
detail and information is necessary so as to allow the Court to assess prima facie a situation
of extreme gravity and urgency.8” In this sense, in conformity with the Convention and the
Rules of Procedure, the procedural burden of demonstrating this situation prima facie falls
on the requestor, in this case the Commission. In this regard, in the analysis of the request
for provisional measures in the instant case, the Court considers that, regardless of the
repeated requests for information requested by the Court (supra Having Seen 4, 6, and 7),
the Commission failed to prove the following aspects:
a.
the alleged death threats or acts of police repression against the leaders of
certain communities, given that there is no precise data after August 2009, that is,
after the start of the agreements between the State, the company and the
communities;
b.
the problems that would result from the deforestation methodology currently
implemented, as well as with regards to the flood that would affect the resettlement of
the community’s members;
c.
the apparent conformity expressed by several members of the indigenous
communities in relation to the lands offered and, in certain cases, already granted for
their resettlement;
d.
the “medical tours” allegedly conducted by the State to avoid the damage that
could result from the alleged contaminating impact of the construction of the works,
referred to in the report by the Office for Civil Rights. In its report of April 30, 2010,
the Commission did not refer to the photographs and information recently submitted
by the State with regards to the condition of Changuinola River;
e.
the alleged restrictions to freedom of movement and to the traditional mobility of
the members of the Ngöbe community, considering the lack of claims regarding the
manner in which the deforestation is performed, and in relation to that recently
reported by the State on Changuinola River;
f.
the alleged “deceitful maneuvers”, “serious threats and pressures” to force the
members of the communities of Charco La Pava, Changuinola Arriba and Valle del Rey
to sign agreements with the State and the company on the compensations and
resettlements, after the agreements and negotiations that began in August 2009, and
g.
while the Commission referred to declarations by the leaders regarding their
regret of the agreements and claims of deceit and fear (supra Considering 5.l), the
Commission did not present arguments of serious pressure in the declarations of the
leaders of the Communities of Charco La Pava, Valle del Rey and Changuinola Arriba in
the press conference held at the Office for Civil Rights and at meetings with that
institution (supra Considering 6.g and 7) in which, inter alia, they had declared
agreeing with the project and with the resettlement. The Commission did not develop
specific arguments on the report by the Office for Civil Rights (supra Considering 7.)
8
Cf. Matter of Children Deprived of Liberty in the "Complexo do Tatuapé" of FEBEM. Provisional Measures
and Request for Expansion of Provisional Measures regarding Brazil. Order of the Inter-American Court of Human
Rights of July 4, 2006, Considering twenty-three.