5
domestic legal system” and “they cannot be subsumed in any of the provisions
of the Criminal Substantive Law,” and
(d)
Regarding, the hearing of the case on what happened to several
representatives of COFAVIC when they attended a public meeting with the next
of kin of execution victims and were “presumably surrounded by officials
attached to the Police Forces” while they were in a vehicle “that had been
reported to be suspicious,” this was rejected by the Caracas judge, because the
events occurred outside his jurisdiction. Orders were given “that the respective
case file should be forwarded to the Document Registration and Distribution
Office of the Criminal Judicial Circuit of the State of Falcón.”
13.
That, regarding the investigation into the facts, the representatives indicated, inter
alia, that “[t]he investigation into the said threats could not be limited to merely
determining their existence; there was an obligation to find out whether they had been
made by officials or by individuals without any authority, acting with the support or the
simple tolerance of the State.” Despite this, the investigation was “merely designed to look
into the existence of the offense but not to identify the authors,” and this led to the request
that the complaint should not be admitted. “The excessive and unjustified delay in the
implementation of the whole criminal proceeding, the failure to gather the opportune and
exhaustive evidence that was fundamental to elucidate the facts and identify the authors,
the inaction of the prosecutors for long periods, as well as the notorious neglect and
carelessness of the investigation constitutes an example of serious impunity.”
14.
That, regarding the obligation to investigate in the context of the provisional
measures, the representatives indicated that “the Court appears to have modified its wellestablished case law on this matter, without having recognized or explained clearly the
reasoning behind this modification.” To explain this conclusion, the representatives referred
to sections of the Order issued on November 25, 2008, in the Matter of Leonel Rivero et al.
v. Mexico, in which the Court indicated that “the statement of the representatives that the
criminal investigations should continue, or the alleged lack of information about them, do
not constitute circumstances that merit maintaining the actual provisional measures” and
that “the analysis of the effectiveness of the investigations and procedures relating to the
facts that gave rise to these provisional measures would correspond to the examination of
the merits of the case being processed by the Inter-American Commission.”
15.
That, according to the representatives, “these considerations reflect a clear reversal
of the case law more protective of human rights issued by the Court in the past, as can be
inferred from an examination of previous Orders issued by the Court on the same issue.”
They added that “the Court’s past case law reveals that it has repeatedly asked the States
to investigate the facts that gave rise to the danger and to do everything necessary to
adopt the provisional measure”; that this request addressed at the State in order to assess
whether the danger subsists does not imply prejudgment of “the compatibility of the
investigations with the obligations arising from the American Convention.” They observed
that the analysis of the effectiveness of the investigation made in the context of provisional
measures is designed to determine “whether, as a result of the investigation, it can be
concluded that the danger that gave rise to the measures no longer exists,” compared to
the analysis that must be made during a litigation which “covers principally how the
investigation has been conducted and not exclusively its results.” They also affirmed that
“progress in the investigation into the facts that gave rise to the measures […] is the factor
that most clearly allows the Court to assess the danger and conclude that it has decreased
sufficiently to allow it to rescind the measures.” Lastly, they stated that “[b]y freeing the
States from the obligation to provide information on the investigation into the facts that