those exercising supervisory tasks based on failure to comply with their control
obligations;
ii) The opening of administrative case files based on complaints made by the next
of kin of inmates, newspaper articles, and complaints forwarded by the Human
Rights Directorate of the Ministry of Governance;
iii) The opening of a criminal investigation by the office of the Prosecutor for
Complex Crimes of the province of Mendoza, whose current status is: (a) three
individuals charged with the crime of torture; (ii) one person charged with the
offense of harsh and humiliating treatment; (iii) one person charged with the
crimes of torture in conjunction with the offense of harsh and humiliating
treatment, and (iv) two individuals charged with the offense of omission in
performance of functions which permitted torture. The six accused are currently
detained in the Boulogne Sur Mer Complex (the agent accused of the offense of
harsh and humiliating treatment has been released). The Minister of Governance,
Justice and Human Rights, the Deputy Secretary for Human Rights, the Director
of Human Rights and the Director General of the Prison Service, all of the
province of Mendoza, and also the federal State – through the national Human
Rights Secretariat – are the complainants in the case;
iv) The creation of delegations of the Provincial Human Rights Directorate in each
prison to receive statements and complaints of different kinds.
39.
The irreparable nature of possible harm to the rights of those deprived of liberty
is evident if pertinent measures of prevention and protection are not adopted at the
domestic level. In view of the special severity of the situation denounced, the obligation
to ensure the protection of those directly involved in the facts must be stressed, as well
as of other inmates who could be victims or witnesses should similar acts occur, and
also not to thwart their due investigation owing to the presence of other prison staff and
the possible obstacles this could represent, including to prevent threats, intimidation or
reprisals.
40.
Irrespective of whether the requirements concur to order the protection of those
deprived of liberty in these prisons, the Court has reiterated that, based on the principle
of complementarity and subordination that governs the inter-American human rights
system, an order to adopt or maintain provisional measures is only justified in situations
established in Article 63(2) of the American Convention, in which the ordinary
guarantees that exist in the State regarding which they are requested are insufficient or
ineffective, or the domestic authorities cannot or do not want to ensure their
effectiveness.20 The State has provided information on numerous, significant measures
that its administrative and judicial authorities are adopting as a result of the reported
facts (supra twenty-first and twenty-second considering paragraphs), which would
indicate the willingness of the authorities to set in motion specific mechanisms of
prevention and investigation at the domestic level. In other words, the domestic
authorities have responded to the situation in the Mendoza Prisons since the Court
20
Cf. Matter of the Mendoza Prisons. supra note 4, and Matter of the Capital Detention Center El Rodeo
I and El Rodeo II. Provisional measures with regard to Venezuela, Order of the Inter-American Court of
Human Rights of February 8, 2008, fifteenth considering paragraph.
17