4
the Commission and on the holding of a hearing, originally scheduled for July 29,
which the Government has requested to be postponed for a period of no less than 30
days.
First of all, it is important to clearly establish a distinction between the provisional
measures that the Court can adopt under Article 63(2) of the American Convention
on Human Rights (hereinafter "the Convention") and the emergency measures that
Article 23(4) of the Rules empowers the President to order the parties in the interim,
so as to permit any decision that the Court may eventually take to have the
appropriate effect; in other words, so that the Court may not find itself facing a fait
accompli.
6.
The provisions in force set forth certain requirements that must be met for
the Court to be able to adopt provisional measures at the request of the
Commission. These include the following:
a.
Article 29(2) of the Regulations of the Commission provide that "when
it becomes necessary to avoid irreparable damage to persons, [it] may
request that provisional measures be taken to avoid irreparable damage in
cases where the denounced facts are true." It is thus not a question of fully
determining the truth of the facts; rather, the Commission must have a
reasonable basis for assuming them to be true.
In this case, the Commission has not fulfilled the above requirement,
inasmuch as its request merely transcribes the facts reported by the
petitioner.
The Government, on its part, in its note of last July 24 acknowledged the
existence of an "internal armed conflict" over the last thirty years and the
violent acts that are occurring in the area. Such a blanket acknowledgement
does not imply acceptance that the facts denounced are true; however, it
does lead to the presumption that a situation exists which could bring about
irreparable damage to persons.
b.
Article 63(2) of the Convention authorizes the Court to adopt
provisional measures "[i]n cases of extreme gravity and urgency, and when
necessary to avoid irreparable damage to persons." The wording used
indicates that we are dealing here with an extraordinary instrument, one
which becomes necessary in exceptional circumstances.
7.
The request for provisional measures before us refers to a case "not yet
submitted to the Court." This means that the Court lacks information regarding the
facts and circumstances surrounding the case, which information must be at the
disposal of the Commission. The latter must, consequently, transmit such
information together with the corresponding petition, in order to provide the Court
with the facts necessary to enable it to arrive at a decision.
*
*
8.
The Court finds that the order of the President of July 15, 1991, was properly
adopted and that it has achieved its purpose of enabling the Court to study the
matter while avoiding irreparable actions.