5
g) Concerning the Contreras family, the representatives declared that urgent
requests for protection were filed in 2006 for Ms. Mariela Contreras Cruz, but
the State did not resolve them.
7.
The Commission noted that the information submitted by the State was
incomplete because it only referred to data for some of the 20 beneficiaries of the
measures ordered by the Court. Also, in relation to the Tribunal’s request during the
public hearing, the Commission indicated that it is not a question of presuming the
risk the beneficiaries face, as this has already been conclusively determined, but
rather of determining whether such risk persists, given that there is ample cause for
concern as to their safety in the context of this case and considering the link
between this case and the measures. The Commission also stressed that the
requirements for maintaining the measures in place are present because “the factual
basis that gave rise to [them] [...] is substantially unchanged.” In particular, the
Commission referred to the instances of forced displacement experienced by the
majority of the beneficiaries as well as sporadic acts of harassment, such as
telephone calls attributed to the police. The Commission expressed its concern for
the lack of significant progress in the investigations, emphasized the impunity
affecting this case and how it contributes to more danger for the beneficiaries, and
lastly noted with emphasis that the facts underlying these provisional measures have
not been investigated. Likewise, the Commission affirmed that the passage of time
“has not moderated the risk faced by the beneficiaries” as they still find themselves
in “real danger of harm” to their rights to life and humane treatment.
8.
Concerning the concept of “permanent or continued risk” invoked by the
representatives, the Commission noted that in this case “a situation of permanent
risk has coalesced because the root causes of the beneficiaries’ vulnerability have
not been addressed[,] nor has the State taken steps aimed at moderating this risk.”
The Commission stated that so long as the risk continues, provisional measures
constitute the most adequate response that the Inter-American System can offer, as
it is very probable that the Court’s actions by way of these measures has served as a
guarantee for the beneficiaries’ rights. Therefore, the Commission remarked that an
action for rescission of provisional measures “enjoys a strong presumption [in favor]
of infringement” on the rights to life and humane treatment of the beneficiaries.
9.
Concerning the previous arguments, the State emphasized that the
investigation into the alleged facts was begun of its own initiative, but because of
the beneficiaries’ lack of procedural activity (by way of their representatives), some
of the formalities ordered by the Prosecutor’s Office have not been conducted.
Regarding the alleged lack of disciplinary investigations into the alleged statements
of the ex-Mayor of Mapiripán in November 2005, the State noted that the Office of
the Mapiripán Municipal Attorney reported no complaints on this issue and no basis
was found upon which to initiate an investigation. The State indicated that it had
reported this information dating back to July 2006, a fact which was not contested
by the representatives at that time. Regarding the alleged existence of “structural
factors that give rise to the risk in this case,” the State emphasized that the facts
that are being investigated in relation to monitoring compliance with the case are
different from those that gave rise to the provisional measures, and the Court’s
procedures for each are of a different legal nature. The State cited jurisprudence
from its Constitutional Court in order to conclude that, from the representatives’
information, “the existence of recent acts of harassment or threats creating a real
and present risk [to] the beneficiaries cannot be reasonably established.” The State
further argued that the “facts that [necessitated] the measures [...] cannot
perpetuate themselves in time as a permanent risk” as the representatives hope.
According to the State, the adoption of provisional measures is only justified if